01A03138
12-18-2002
Rosanne F. Greene, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Rosanne F. Greene v. Department of Commerce
01A03138
December 18, 2002
.
Rosanne F. Greene,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A03138
Agency Nos. 97-54-0243/0243-01 & 98-54-0182
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The complainant, in several complaints which were consolidated by the
agency, set forth the following incidents to support her allegations
of discriminatory treatment and harassment with respect to terms and
conditions of her employment: 1) she was denied training necessary
to perform her assigned duties; 2) she was not provided with a valid
performance plan or evaluation since fiscal year 1995; 3) she was verbally
abused and ridiculed in the presence of co-workers for refusing to
fabricate or not document budget numbers; 4) she was initially denied
leave on March 21, 1997, and told to organize and clear off her desk
before the request would be approved; 5) her former supervisor (S1)
demanded she submit a statement of her accomplishments; 6) she was
assigned duties previously performed by a GS-14 without training
or a promotion; 7) she was denied an alternative work schedule; 8)
her performance rating was signed off by an individual who was not
her supervisor, (S2), who asserted he was the Chief of the Formulation
Branch, which was not true; and 9) she was placed under the supervision
of S1 against her expressed wishes. Pursuant to 29 C.F.R. � 1614.405,
the Commission accepts the complainant's appeal from the agency's final
action dated February 25, 2000, in the above-entitled matter.
After an investigation of the alleged incidents, the agency issued the
requested final agency decision (FAD). The agency found that, even if
the complainant had shown a prima facie case, she failed to show that its
articulated reasons for the actions were a pretext for discrimination.
It further found that her claims, if unrebutted by the agency, were
sufficient to create an inference of a hostile work environment. The
agency concluded in a lengthy and thorough decision that the complainant
failed to show that any violation of Title VII or the ADEA had occurred.
On appeal, the complainant made no arguments. The agency made no comments
in response to the appeal.
Disparate Treatment Claims
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), and assuming
the complainant has presented a prima facie case of discrimination
and reprisal, we nevertheless find that the complainant has failed
to prove, by a preponderance of the evidence, that the legitimate,
non-discriminatory reasons set forth by the agency for the various
employment actions at issue herein were pretextual or motivated by race,
sex or age discrimination or reprisal. In reaching this conclusion,
we find the record supports a finding that the agency officials did not
single out the complainant, that the office was high stress, fast moving
and that all employees were treated similarly. Moreover, there is no
evidence of discriminatory or retaliatory bias.
Harassment Claims
It is well-settled that harassment based upon an individual's race,
sex, age and prior EEO activity is actionable. See Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that: (1)
she belongs to the statutorily protected classes and/or engaged in
prior EEO activity; (2) she was subjected to unwelcome conduct related
to her membership in those classes and her prior EEO activity; (3) the
harassment complained of was based on race, sex, age and/or prior EEO
activity; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician
Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp.,
247 F.3d 169 (4th Cir. 2001).
In determining whether an objectively hostile or abusive work environment
existed, the Commission considers whether a reasonable person in the
complainant's circumstances would have found the alleged behavior
to be hostile or abusive. Even if the harassing conduct produces no
tangible effects, such as psychological injury, a complainant may assert
a Title VII or ADEA cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their prior EEO activity or race, sex and/or age.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)),
req. for recons. den., EEOC Request No. 05970995 (May 20, 1999); Flowers
v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001);
Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).
Determining whether or not a complainant was subjected to a hostile or
abusive work environment, the Commission considers the totality of the
instances of harassment together rather than piecemeal to determine if
the acts considered together, are severe and pervasive enough to alter
the conditions of the workplace. See Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993).
To the extent that complainant is alleging that she was subjected
to a hostile work environment, we find insufficient evidence that an
objectively hostile work environment existed. As this Commission's
guidance points out:
the anti-discrimination statutes are not a �general civility code.�
Thus federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�) at 4 [internal
notes and citations omitted].
Here, the complainant asserts that the agency engaged in unwelcome
conduct that culminated in a �hostile work environment.� Even though
the agency found that an inference of a hostile work environment could
be inferred if it failed to rebut the complainant's claims, and even if
we assume for the sake of argument that the agency actions of which the
complainant complained were severe or pervasive enough to create a hostile
work environment, we still could not find the agency liable for unlawful
harassment. To prove a case of harassment under Title VII or ADEA, the
complainant must demonstrate that agency officials harassed her because
of her race, sex, age, or prior EEO activity. See Vicarious Liability
Guidance, at 4 (providing that [h]arassment does not violate federal
law unless it involves discriminatory treatment on the basis of race,
color, sex, religion, national origin, age of 40 or older, disability,
or protected activity under the anti-discrimination statutes�). As we
noted above, however, we are not convinced that the agency took any of
the challenged actions because of her race, sex, age or her participation
in EEO activity.
Therefore, we conclude that the FAD in question should be affirmed.
Under present Commission policy, claimed retaliatory actions which can be
challenged are not restricted to those which affect a term or condition
of employment; a complainant is protected from any discrimination which
is reasonably likely to deter protected activity. See EEOC Compliance
Manual Section 8, �Retaliation,� No. 915.003 (May 20, 1998), p.8-15.
Here, the complainant did not argue or present evidence that the agency's
actions deterred her from engaging in protected activity. Accordingly,
the agency's FAD finding that the complainant was neither retaliated
against nor discriminated against on any of the alleged bases is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2002
__________________
Date