01975277
09-24-1999
Adelina Saiz, Appellant, v. Robert E. Rubin, Secretary, Department of Treasury, (Internal Revenue Service), Agency.
Adelina Saiz, )
Appellant, )
) Appeal No. 01975277
v. ) Agency No. 954129
)
Robert E. Rubin, )
Secretary, )
Department of Treasury, )
(Internal Revenue Service), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of national origin (Hispanic), color
(White), age (63), and sex (female), in violation of Title VII of the
Civil Rights Act of 1964, 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. Appellant alleges that she was discriminated
against and subjected to a hostile working environment when: (1)
managers and co-workers made degrading remarks and criticisms about her
intelligence and work performance; (2) she was involuntarily reassigned
from a GS-4 Secretary position in the Public Affairs Office to a GS-4
Remote Terminal Operator (RTO) position in the Taxpayer Service Division,
effective January 25, 1995; and (3) her co-workers were informed about
her reassignment before she received her official reassignment notice.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GS-4 Secretary at the agency's Public Affairs Office in Portland,
Oregon. Appellant alleges that she came to the Portland office under a
�hardship� transfer so that the Manager (M) was forced to assign her to
the GS-4 Secretary position, but that he really preferred a younger female
for the job. Appellant contends that M was biased against her from the
beginning and never gave her an opportunity to successfully perform the
duties of the Secretary position. She additionally contends that she was
deliberately subjected to a hostile work environment, alleging that both
management officials and co-workers harassed her with unfounded criticism
and ridicule. Appellant also alleges that she was deliberately further
humiliated when her co-workers were told about the transfer to the RTO
position before she received the reassignment notice.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on April 12, 1995.
At the conclusion of the investigation<1>, appellant requested that the
agency issue a FAD.
The FAD concluded that appellant failed to establish a prima facie case
of discrimination on any of the bases alleged because she presented
no evidence that similarly situated individuals not in her protected
classes were treated differently under similar circumstances. With
respect to allegation 2, the FAD additionally found that an inference of
discrimination was not established because appellant's replacement was
a White female over the age of 40, and there was no evidence to suggest
animus toward appellant due to her national origin. The FAD also held that
there was no evidence to corroborate the alleged incidents of ridicule
and harassment as set forth in allegation 1; and, that the incidents
set forth in allegation 3 were not sufficiently severe or pervasive so
as to demonstrate a hostile working environment.
On appeal, appellant restates a number of her arguments. The agency
requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the Commission concurs with the agency's determinations as set forth
above. Specifically, we conclude that appellant failed to establish a
prima facie case of color, sex, age, or national origin discrimination
because the record is devoid of any credible evidence to show that
appellant was treated differently than similarly situated employees
experiencing performance problems when she was reassigned to a position
assessed as more compatible with her capabilities. In fact, the record
shows that M and appellant's other supervisors and co-workers continuously
provided her with extra help and training, and resorted to reassignment
only after many months of unsuccessfully assisting appellant in this
manner. Both affidavit and documentary evidence confirms appellant's
performance deficiencies notwithstanding the additional assistance.
The record lacks any suggestion of discriminatory animus relating to
appellant's color, sex, age, or national origin, and discriminatory
intent on these bases is further belied by the fact that appellant did
not receive a demotion in pay or benefits as a result of the transfer.
We note also that M consistently praised appellant for her willingness
to learn, her enthusiasm, and her determination to do the work required
of her, again belying an inference of discriminatory animus.
We also conclude that appellant has failed to establish that the
incidents in allegations 1 and 3 constitute a hostile working environment.
In reaching this conclusion, we note that in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is
actionable only if it is sufficiently severe or pervasive that it results
in an alteration of the conditions of the appellant's employment. EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3. See also, Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Our review of
the record indicates that not a single affidavit, including those of
both management and co-workers, corroborated appellant's assertions in
allegation 1 that she was ridiculed or degraded, instead describing
several incidents when appellant herself acted in an inappropriate
and hostile manner. Moreover, with respect to allegation 3, although
M admits to informing appellant's co-workers in advance about her
reassignment, there is no evidence to suggest that appellant experienced
any sort of harassment as a consequence, but rather that several of her
co-workers expressed concern and tried to be helpful and supportive.
M testified that he gave advance notice to the co-workers so they
could be prepared should appellant react badly to the news, as she had
done previously when not selected for a position in another division.
Co-worker affidavits confirm that this was the intention communicated
by M, with the understanding they were to help, not harass, appellant
in adjusting to the news.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The allegations in the instant complaint were originally dismissed by the
agency because of appellant's failure to cooperate with the investigator.
In Saiz v. Department of Treasury, EEOC Appeal No. 01956597, (October
22, 1996), the Commission reversed this determination and found
that the dismissal was inappropriate because the evidentiary record
contained sufficient information to adjudicate the case. We note that
the investigator has documented the file to show that appellant would
not speak to her and did not response to a written request to produce
an affidavit.