0120080488_rev
08-13-2009
___________________, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.
___________________,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120080488
Agency No. OCR0701
DECISION
On November 2, 2007, complainant filed an appeal from the agency's
September 27, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant established that she was discriminated against on
the bases of sex and/or reprisal when she was subjected to a hostile
work environment at the hands of a co-worker and a supervisor.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
an International Radio Broadcaster (English), GS-lOOl-13, International
Broadcasting Bureau (IBB), Voice of America (VOA), Worldwide English
Division, in Washington, D.C. On October 10, 2006, complainant filed
an EEO complaint alleging that she was discriminated against on the
bases of sex (female) and reprisal for prior protected EEO activity
[arising under Title VII] when:
(1) She was subjected to harassment (non-sexual) by a coworker who made
erroneous complaints to her supervisor about her time and attendance; and
(2) She was subjected to a continuing hostile work environment by her
supervisor's decision to curtail her hours of work in the newsroom.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The FAD initially acknowledged that complainant indicated that the
incidents in this complaint are merely part and parcel of the ongoing
harassment to which she has been subjected at the agency, and about which
she filed an EEO complaint dated November 12, 2004. The FAD noted that
the agency had already issued a FAD on July 11, 2006 concerning that
prior EEO complaint, thereby disposing of the issues which complainant
now attempts to raise again. The FAD then found that the decision
would consist only of an analysis of issues (1) and (2), which concern
harassment related to her time and attendance.
The FAD then provided the following background information concerning
issues (1) and (2): after filing her November 12, 2004 complaint,
and while the complaint was being processed, complainant stopped
reporting to work in June 2005 for alleged stress. On December 6,
2005, the agency and complainant entered into an agreement which
provided that complainant would return to work on December 8, 2005,
and that her work schedule would be Thursday through Sunday 6:00 pm -
4:00 am. The agreement specifically provided that two co-workers'
(C1 and C2) schedules would not overlap with complainant's schedule
(a provision that was based on complainant's request not to work with
co-workers whom she had identified in her complaint).
In the spring of 2006, complainant and the agency agreed to modify the
work schedule in the agreement in order to meet the Division's editorial
needs. She was scheduled to work 8:00 p.m. to 6:00 a.m., Thursdays and
Fridays and 6:00 p.m. to 4 a.m. on Saturdays and Sundays. On June 25,
2007, C1 sent an email to complainant's supervisor (S1), asking that
complainant be instructed to leave work on time and indicating that
during the last three Sundays, complainant had stayed at work until 6:51
a.m. to chat with a co-worker and had signed out at 7:00 a.m. C1 also
indicated that this behavior by complainant subjected him to a hostile
work environment and he asked to be transferred to the FOCUS unit in
December so that he and complainant would not have any contact at all.
S1 did not act on the email message; therefore, C1 sent him a second
message on July 16, 2006, asking him to respond. S1 looked into the
situation to determine if complainant's schedule had overlapped with
C1's schedule. S1 found that complainant was late the majority of the
time; however, he indicated that most of the late arrivals were excused
by the Deputy Editor and that complainant had taken leave for the rest.
He added that it seemed to him that complainant had a time and attendance
problem. He then sent a message to complainant asking her to adhere to
her work schedule.
After considering only these two claims (C1's complaints about
complainant's time and attendance; and S1's instruction to her concerning
adhering to her schedule) the FAD found that complainant failed to
establish that she was subjected to conduct which could be considered
unlawful harassment.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates that the incidents in this complaint
were only the most recent incidents in the ongoing harassment to which
she has been subjected by C1. She provides significant detail about
the allegations that she had attempted to raise in her prior complaint,
and she asserts that the July 11, 2006 FAD that was issued on her prior
complaint had not addressed her claims of harassment by C1. Specifically,
the FAD had only considered the claims as background/anecdotal evidence
(for purposes of liability).1 Complainant asks the Commission to consider
these incidents now on the basis that they are not "time-barred."
On appeal, complainant also denies that she had a time and attendance
problem and explains the circumstances under which she has worked
different hours than those for which she was scheduled. She contends
that her time and attendance practices are standard at the agency, and
that she deviates only when it is in the best interest of the agency
for her to do so. She also emphasizes that C1's complaints about her
time and attendance (and the close attention he has paid to her time and
attendance), along with her supervisor's willingness to credit C1's false
allegations, has created a hostile work environment for her. In reply,
the agency asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
First, we address complainant's assertion that the incidents which she
raised in her 2004 complaint (Agency No. OCR-05-07) should be addressed as
part and parcel of the instant claim of harassment. Complainant previously
raised the issues which she now wants included in this complaint, in a
prior complaint (Agency No. OCR-05-07), and they were addressed in the
FAD dated July 11, 2006. Complainant had an opportunity to argue that
such incidents ought to have been analyzed differently, i.e., should
not have been treated solely as "anecdotal" evidence, by appealing the
FAD's conclusions to the Commission. A review of the July 11, 2006 FAD
indicates that complainant was on notice of her right to appeal the FAD
to the Commission within 30 calendar days of the receipt of the decision.
There is no indication that complainant timely appealed the decision.
Therefore, we decline to consider these incidents as part of the instant
complaint.
In order for harassment to be considered as conduct in violation of
the laws that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
In the instant case, the Commission finds that the alleged harassing
incidents outlined in issues (1) and (2), taken together, do not rise to
the level of unlawful harassment. The record reveals that the agency
and complainant agreed to a schedule which was designed to keep C1 and
complainant apart. It is undisputed that thereafter, complainant often
did not adhere strictly to that schedule. A co-worker's complaints to a
supervisor about complainant's failure to adhere to the agreement about
her schedule, in addition to a supervisor's request that complainant
adhere to such schedule (even assuming complainant had a good business
reasons for being at work outside of her schedule), simply do not rise
to the level of unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
______8/13/09____________
Date
1 The July 11, 2006 FAD determined that these incidents (which complainant
had raised after filing her complaint, in a letter dated December 22,
2004) could be treated only as anecdotal evidence since complainant had
not raised them during EEO counseling or in her formal complaint.
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0120080488
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080488