01a40235
07-13-2005
Abigail Rhodes, Complainant, v. Stephen L. Johnson, Acting Administrator, Environmental Protection Agency, Agency.
Abigail Rhodes v. Environmental Protection Agency
01A40235
July 13, 2005
.
Abigail Rhodes,
Complainant,
v.
Stephen L. Johnson,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A40235
Agency No. EPA No. 1998-0040-R4
Hearing No. 110-A1-8372X-AE
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Fiscal Assistant in the agency's
Financial Management Section, Comptroller Branch, filed a formal EEO
complaint on January 23, 1998. She alleged that the agency discriminated
against her on the basis of her race (African-American) when she was
subjected to harassment and a hostile work environment. In addition,
complainant alleged the following:
(1) she was denied a promotion to the position of Financial Management
Specialist, GS-0501-9 under Vacancy Announcement No. MPP-1998-75;
she was denied the opportunity to travel for training and to carry out
her normal duties;
she was denied a monetary award; and
(4) she was given an undesirable performance appraisal for FY 1997.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ viewed the complaint as solely stating a claim of harassment.
She concluded that complainant failed to establish a prima facie case
of race discrimination because there was no evidence that the incidents
of alleged harassment were based on her race. Instead, the AJ found
that the agency provided credible, rational explanations for each of
the allegations.
In particular, the agency provided evidence that the reason complainant
did not receive an outstanding evaluation for FY 1997 was due to her
poor job performance. The AJ found that complainant admitted that
prior to her 1997 performance appraisal and her application for a
promotion, she told her supervisors she would no longer do her work
at the level they indicated was necessary. In addition, the AJ found
that complainant's supervisors awarded the promotion in question to two
African American females which did not support complainant's contention
that her non-selection was due to the fact that she was African American.
Moreover, these same supervisors gave �Outstanding� performance appraisals
and monetary awards to several African Americans during the time period
in question, which the AJ concluded, supported the agency's position
that it did not discriminate.
Addressing complainant's contention that she was denied the opportunity to
travel, the AJ concluded that complainant did not need to travel because
her work was for accounts located in-state. Moreover, she found that
the evidence established that African Americans in similar positions as
complainant, were given the opportunity to travel.
The AJ further found that complainant initially took a downgrade to
enter the Financial Management Section at a GS-5, because of her lack of
qualifications, but she was eventually promoted to a GS-7. The AJ also
concluded that certain statements uttered by complainant's supervisors
were inappropriate but were not sufficient to establish a hostile work
environment.<1> She found that three comments were made over a four
year period which was not sufficiently severe or pervasive to establish
a hostile work environment.
For these reasons, the AJ concluded that complainant did not demonstrate
she was subjected to race discrimination. The agency's final order
implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In order for complainant to prevail on her claim of harassment she must
demonstrate that the incidents were "sufficiently severe or pervasive to
alter the conditions of [complainant's] employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
To establish a prima facie case of harassment, complainant must show
that: (1) she is a member of a statutorily protected class and/or was
engaged in prior EEO activity; (2) she was subjected to unwelcome verbal
or physical conduct related to his membership in that class and/or his
prior EEO activity; (3) the harassment complained of was based on her
membership in that class; (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 Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further,
we evaluate the conduct from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
The Commission views the complaint as stating a claim of not just
harassment, but also a claim of disparate treatment. Nevertheless,
after a careful review of the record, the Commission finds that the
AJ's finding of no discrimination is supported by substantial evidence
in the record. Her decision is an accurate reflection of the relevant
facts and is a correct application of the law. Although complainant
provided corroboration for certain statements, which arguably were
racial or reflected a supervisor's anger, the AJ's conclusion that the
incidents were not sufficient to establish a hostile work environment
was supported by the record.
In addition, complainant did not demonstrate that her non-selection for a
promotion, the denial of a monetary award or an undesirable performance
appraisal, were motivated by race discrimination. For these reasons,
we discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
July 13, 2005
__________________
Date
1The record indicated testimony that complainant's first line supervisor
made a comment about the dark color of an African American woman's
neck during her pregnancy. The record also reflected testimony that
complainant's second line supervisor placed a penny on complainant's
computer and indicated that complainant could use it for her son's
college education.