01A21883
03-24-2003
Evangeline D. Boyd, Complainant, v. John W. Snow, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Evangeline D. Boyd v. Department of the Treasury
01A21883
March 24, 2003
.
Evangeline D. Boyd,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01A21883
Agency No. 99-3221
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
The record reveals that during the relevant time, complainant was
employed as a Clerk, GS-4, at the agency's Philadelphia Service Center,
in Philadelphia, Pennsylvania. Complainant sought EEO counseling and
subsequently filed a formal complaint on July 1, 1999, alleging that
she was discriminated against on the bases of race (African-American)
and age (D.O.B. July 1, 1953) when she was coerced into an involuntary
resignation, effective May 12, 1999.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
that she was constructively discharged or that she was harassed as a
result of these incidents. On appeal, complainant re-states arguments
previously made. The agency requests that we affirm its FAD.
Constructive Discharge
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory animus, creates working conditions that are
so difficult, unpleasant, or intolerable that a reasonable person in
complainant's position would feel compelled to resign. Doe v. Social
Security Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003). In other
words, the employee is essentially forced to resign under circumstances
where the resignation is tantamount to the employer's termination or
discharge of the employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d
568, 574 (8th Cir. 1997). The Commission has adopted a three-pronged
test for establishing a constructive discharge. Complainant must show
that: (1) a reasonable person in her position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Serv., EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Department
of Defense, EEOC Request No. 05900630 (July 20, 1990)). The agency
proposed to terminate complainant on May 12, 1999, because of her
numerous conflicts with her co-workers and supervisors. Complainant was
repeatedly counseled about misconduct arising from verbal altercations
and multiple failures to follow orders from March 31, 1999, to May 6,
1999. These infractions were well documented in the record by numerous
letters issued by her supervisor. Complainant was offered the option
to resign instead of being terminated. On May 12, 1999, complainant
wrote a memorandum that stated that she �voluntarily resign[ed] [her]
position� for �personal reasons.� We find that there is no indication in
the record that complaint was subjected to intolerable working conditions
which arose out of conduct which constituted prohibited discrimination on
the bases of her race and/or age. Accordingly, we find that complainant
has failed to prove her constructive discharge claim.
Harassment
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 patterned or pervasive. Wibstad
v. United States Postal Serv., EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc.(Enforcement Guidance),
EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. In order to establish
a claim of harassment based on race and/or age complainant must show
membership in a protected group, and severe or pervasive harassing
conduct, such that it alters the conditions of her employment, that would
not have occurred except for her membership in that protected group.
Harris, 510 U.S. at 23; Henderson v. City of Dundee, 682 F.2d 897,
903-4 ( 11th Cir. 1982); Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). The harassers' conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance, EEOC Notice No. 915.002.
We find that there is nothing in the record to suggest that conflicts
between complainant and her co-workers and supervisors occurred because
of complainant's race and age. The record reveals that during many
of the altercations with her co-workers, complainant was involved in
and escalated the personal conflicts, and threatened her co-workers
with physical violence. Complainant does not contest these facts.
Additionally we note, in regard to actions taken by her supervisors,
the substance of complainant's allegations concern personnel actions,
and complainant presents no evidence that any of the above actions were
objectively offensive, abusive or hostile, and otherwise taken in order
to harass her. The actions alleged are common workplace occurrences,
and unless it is reasonably established that the actions were somehow
abusive or offensive, and were taken in order to harass complainant on
the basis of any of her protected classes, such everyday events are not
sufficiently severe or pervasive so as to offend the general sensibility
of an individual experiencing such occurrences in the workplace. See Wolf
v. United States Postal Service, EEOC Appeal No. 01961559 (July 23, 1998).
See also Long v. Veterans Administration, EEOC Appeal No. 01950169 (August
14, 1997); Bennett v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000). Accordingly, complainant failed to establish that
she was subjected to prohibited harassment.
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.
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
March 24, 2003
__________________
Date