01983791
01-07-2000
Carolyn W. Salters, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Carolyn W. Salters v. Department of Housing and Urban Development
01983791
January 7, 2000
Carolyn W. Salters, )
Complainant, )
) Appeal No. 01983791
v. ) Agency No. FW9235
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges she was discriminated against when
she was harassed by her supervisor. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
affirms the decision as modified. -
The record reveals that during the relevant time, complainant was employed
as a GS-4 clerk, at the agency's Fort Worth facility. Complainant
alleged that while she worked on a special detail, she was harassed by
her supervisor (S1) when: (1) she was placed on leave restrictions by
memorandum dated April 13, 1992; (2) the reasons for her leave requests
were questioned; (3) she was not allowed to use administrative leave to
participate in a HUD sanctioned volunteer activity; and (4) she was given
an inaccurate performance progress review on April 14, 1992. Believing
she was a victim of discrimination, complainant sought EEO counseling
and, subsequently, filed a complaint on June 5, 1992. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD dismissed issues nos. (1) and (2) (leave restriction and questions
regarding leave) as moot since complainant resigned from the agency on
June 4, 1993. The FAD also dismissed issue no. (4) regarding complainant's
inaccurate written performance progress review since the agency viewed
it as a proposed action that did not result in any direct and present
harm. The FAD then concluded that complainant had failed to establish a
prima facie case of reprisal and race discrimination but indicated that
even if she had, the agency had provided legitimate, nondiscriminatory
reasons for its action. With regard to issue no. 3 (not being allowed
to use administrative leave) the FAD concluded that complainant in fact,
had been allowed administrative leave. The FAD also held that complainant
had failed to establish a prima facie case of harassment because she
presented no evidence that a hostile or offensive working environment
was created. On appeal, complainant raises issues that are beyond the
scope of this appeal. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases), the Commission agrees that issues (1)
and (2) are moot. EEOC Regulation 29 C.F.R. �1614.107(e) provides for
the dismissal of a complaint, or portions thereof, when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the fact finder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10,
1998). When such circumstances exist, no relief is available and no need
for a determination of the rights of the parties is presented. We agree
that issues (1) and (2) regarding leave are moot since it can be said
with assurance that the action is unlikely to recur since complainant
no longer works for the agency and since according to the FAD, leave
records are not permanently retained.
With respect to the progress review, the agency maintains that
the progress review resulted in no harm because it was a warning
notice which had no material or permanent effect. We disagree with the
agency. While there is no indication that the written warning notice was
placed in complainant's personnel file, it appears that it was a part
of her official file because it is signed by complainant and her first
and second line supervisors. The Commission has held that written warning
notices which are placed in a complainant's file constitutes a direct and
personal deprivation sufficient to render an individual aggrieved. See
McAlhaney v. United States Postal Service, EEOC Request No. 05940949
(July 7, 1995); Fair v. Department of the Navy, EEOC Appeal No. 01961886
(November 4, 1996). Therefore, we find that this issue should not have
been dismissed.
Nevertheless, we find that complainant failed to establish a prima facie
case of reprisal and race discrimination with respect to all issues
because she failed to establish that she was meeting the agency's
legitimate expectations with respect to her leave usage and work
performance and because she failed to establish that her supervisor was
aware of her prior EEO activity. We find that the complainant had a leave
problem and had been placed on leave restriction by her former supervisor.
We find that S1 was just carrying out this process. Further, the record
reveals that complainant was allowed to use administrative leave for her
volunteer activity and was only asked to use annual leave when she could
not account for her time. Complainant did not dispute this fact. With
regard to complainant's performance progress review, we find that S1
credibly stated that complainant contributed less than any other employee.
He stated that complainant's file processing rate was 28 when the average
was 40 and the highest producers rate was 64.
With regard to complainant's claim that these actions caused a hostile
work environment, we find that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability, or religion is unlawful, if it is sufficiently
severe or pervasive. Jackson v. United States Postal Service, EEOC
Appeal No. 01972555 (April 15, 1999). In determining whether a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6. The Supreme Court
stated: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would not find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993). After a careful review of the record,
we find that complainant failed to demonstrate that she was subjected to
a hostile work environment. We find the incidents raised by complainant
are performance related measures and were not severe or pervasive enough
to create a hostile work environment. See Harris, supra.
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 FAD as
modified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.