01974394
11-03-1999
Deborah J. Wilson, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Deborah J. Wilson, )
Appellant, )
) Appeal No. 01974394
v. ) Agency No. 942227
) Hearing No. 280-96-4190
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
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 basis 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. Appellant alleges she was discriminated against and harassed,
when, in March 1994:
(1) the responsible management official (RMO) informed her that she
could not perform collateral duties as an EEO investigator during
her temporary promotion to team leader;
(2) RMO failed to personally provide her with written notification
that her time as an EEO investigator would be extended concomitantly
with the number of months she served as work leader;
(3) RMO required her to work on her EEO complaint during off-duty
hours; and
(4) RMO discussed her job application with two management officials.
We accept the appeal in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a GS-7 Tax Examining Assistant at
the agency's Kansas City Service Center, Internal Revenue Service,
filed a formal EEO complaint with the agency on June 10, 1994
alleging discrimination, as referenced above. At the conclusion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ). Pursuant to
29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision (RD)
without a hearing, finding no discrimination.
In 1992, appellant filed eight EEO complaints. RMO, an attorney for the
agency, was assigned the case in 1993, which was eventually settled in
March 1994. During this time, appellant received a temporary promotion
to the position of �work leader,� and also continued to be involved in
collateral EEO duties. Knowing this, the RMO informed appellant that
agency policy prohibited management personnel, including work leaders,
from simultaneously performing collateral EEO duties. RMO told appellant
that she could resume her collateral EEO duties at the termination of the
work leader assignment, and that the time permitted for her collateral
EEO duties could be extended by the length of time she spent in her work
leader position. Appellant requested that this offer be given to her in
writing by RMO. Instead, RMO referred the matter to the Labor Relations
office, and the Assistant EEO Director issued the offer to appellant
by memorandum. Also during this same time, appellant worked the �night
shift� and she objected to the scheduling of prehearing conferences
and various other meetings related to the eight EEO complaints during
her off-duty hours, as well as the need to otherwise work on her EEO
complaints during off-duty hours. Additionally, appellant objected
to RMO discussing her job application for an over-seas position with
two management officials in the course of pursuing settlement options.
It is appellant's contention that each of these incidents constitute a
pattern of harassment based on reprisal for filing the 1992 complaints.
In considering whether appellant had established a prima facie case of
harassment based on reprisal, the AJ relied on Whitfield v. U.S. Postal
Service, EEOC Request No. 05940715 (May 25, 1995), and held that the
incidents in appellant's allegations must be considered �adverse�
in the context of appellant's claim of harassment. However, the AJ
then concluded that appellant failed to establish a prima facie case
of reprisal regarding any of her allegations because she failed to
demonstrate the required nexus in �time and manner� between her EEO
activity and the alleged incidents of harassment taken by RMO. See
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976).
In reaching this conclusion, the AJ found that none of the alleged
incidents were �inherently unlawful,� which defeated both appellant's
attempt to show a �nexus,� as well as her claim of harassment. That is,
by failing to establish a retaliatory motive regarding these incidents,
appellant's claim of harassment based on reprisal also fails.
Addressing allegation 1, the AJ noted that RMO, as an attorney for the
agency, had a duty to inform appellant about the conflict of interest
between her work leader duties and collateral EEO duties, and that
she was merely fulfilling her role as required by her position at the
agency. Similarly, with respect to allegation 2, the AJ found that RMO did
not have the authority to issue the written offer sought by appellant,
and that referral to the proper official, who did, in fact, issue the
requested memorandum, was the appropriate action. Regarding allegation 3,
the AJ held that RMO did not do most of the scheduling, and that appellant
was offered compensation for any off-duty time she spent preparing or
perusing her EEO complaints, which often necessarily occurred during the
day, and not during the �night shift.� Lastly, concerning allegation 4,
the AJ found that RMO also had a duty to pursue settlement efforts on
behalf of the agency, and that her inquiry about offering appellant an
over-seas position as a settlement option required discussing appellant's
application to determine whether she had the necessary qualifications for
this position. The AJ found that this was not a �discriminatory� �abuse
of power� or a �discriminatory� violation of appellant's privacy rights,
as alleged by appellant.
The agency's FAD<1> adopted the AJ's RD.
On appeal, appellant restates arguments previously made at the hearing.
Appellant also alleges unethical conduct on the part of the agency, and
interference with the EEO process<2>. The agency responds by restating
the position it took in its FAD, and requests that we affirm its FAD.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD sets forth the relevant facts and properly analyzes
the case using the appropriate regulations, policies and laws. Based on
the evidence of record, the Commission discerns no basis to disturb the
AJ's finding of no reprisal. Nothing proffered by appellant on appeal
differs significantly from
the arguments raised before, and given full consideration by, the AJ.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
FAD as CLARIFIED herein.
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:
November 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The FAD held that
the AJ erred by failing to include a separate
prima facie analysis for harassment. The FAD set
forth its own harassment analysis, and concluded
that appellant failed to establish a prima facie
case. We do not agree that this �omission� in
the RD was error. Instead, by finding that none
of the allegations constituted reprisal, the AJ
did not then have to further address appellant's
claim of harassment based on reprisal. See Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993)
and Enforcement Guidance on Harris v. Forklift
Systems. We CLARIFY the FAD accordingly.
2This matter is not properly considered in this forum, and we advise
appellant to seek redress from the Director of her agency's EEO Office.