Gladys Gerolamo, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01975955 (E.E.O.C. Sep. 22, 1999)

01975955

09-22-1999

Gladys Gerolamo, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury (Internal Revenue Service), Agency.


Gladys Gerolamo, )

Appellant, )

) Appeal No. 01975955

v. ) Agency No. 97-3037

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury )

(Internal Revenue Service), )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of sex (female), and reprisal (opposition), 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 when she was terminated

from her position of Control Clerk, GS-303-03, effective October 12, 1996,

during her probationary period. 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 Control Clerk, at the agency's Service Center, Philadelphia,

Pennsylvania. According to the record, appellant worked for the

agency from March 4, 1996 until her termination on October 12, 1996.

Appellant alleged in her complaint that she was retaliated against

for writing letters to agency employees which contained allegations

that her husband was being sexually harassed by the Lead Tax Examiner

(female)(�Examiner�).<1> The record contains approximately twenty

letters which appellant sent to agency officials, the examiner, as well

as co-workers of the examiner between October 1995 and September 1996.

The bulk of the letters were sent on approximately the same day in May

1996, and are basically identical save the addressee. Therein, appellant

reports that the examiner sexually harassed appellant's husband and was

on a campaign to keep him out of work.<2> The letters each conclude

that it would be unfair if the examiner �got away with [the alleged acts]

without her fellow employees knowing what kind of a low life person she

really is.�

Also contained in the record is a letter dated July 2, 1996, from

the Director of the Philadelphia Service Center in response to one of

appellant's letters. Therein, the Director notified appellant that

her husband's sexual harassment complaint had been received and was

going forward. In addition, he noted that although he understood

appellant's need to provide information, none of the individuals to

whom appellant wrote could provide information while the complaint was

being investigated. Therefore, the Director advised:

I find it inappropriate for you to send this type of correspondence to

these employees. Please limit your contacts to the Complaint Center.

Also contained in the record is a letter received by the agency on or

about September 11, 1996. The letter, which is signed by both appellant

and her husband and is addressed to the examiner, contains graphic,

offensive language and threats directed to the examiner. Furthermore, the

letter alleges that the examiner sexually harassed appellant's husband,

and provides details in support of the allegations.

By letter dated September 26, 1996, appellant was terminated from the

agency's employ. In its notice of termination, the agency notified

appellant that she had displayed conduct unbecoming to an IRS employee

when she mailed pictures of herself and letters to agency employees which

reported that the examiner was a, �liar & conniver and in general a piece

of garbage.� Furthermore, the agency cited the September letter signed by

appellant and her husband, which contained repeated offensive graphic and

degrading comments about the supervisor, as reason for her termination.<3>

Believing she was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on November 12, 1996.

At the conclusion of the investigation, appellant requested that the

agency issue a final agency decision.

The FAD concluded that appellant failed to establish a prima facie case

of sex discrimination because she presented no evidence of a relationship

between her gender and her termination. However, the agency did find that

appellant had established a prima facie case of reprisal discrimination.

Furthermore, the agency found that it had articulated a legitimate,

nondiscriminatory reason for its action, namely, that appellant's

termination was based upon the abusive, threatening and harassing letters

which appellant mailed to the examiner, the Service Center's Director,

co-workers of appellant's spouse, and agency supervisors. Although

the agency found that appellant alleged she was merely protesting the

discriminatory actions of the supervisor, the agency found that appellant

had engaged in actions which, in any other context, would be found to

be �crude, harassing and totally disruptive to the workplace.�

On appeal, appellant contends that she did not write the letter which

caused her termination, she merely signed it. The agency requests that

we affirm its FAD.

The anti-reprisal section of Title VII protects employees, such

as appellant, who "oppose" practices alleged to be discriminatory,

as well as those who formally "participate" in the EEO process. 42

U.S.C. � 2000e-3(a). The effective enforcement of Title VII depends in

a very large part on the initiative of individuals who oppose employment

policies or practices which are reasonably believed to be unlawful.

Protesting or otherwise opposing suspected discrimination serves to

alert agencies to possible violations and allows them the opportunity

to examine the matter brought to their attention and take corrective

action when necessary. Section 704(a) of Title VII has therefore been

interpreted as intending to provide "exceptionally broad protection" for

protestors of discriminatory employment practices. Pettway v. American

Cast Iron Pipe Co., 411 F.2d 988, 1004-1005 (5th Cir. 1969).

However, the manner in which an individual protests perceived employment

discrimination must be reasonable in order for the anti-retaliation

provisions to apply. EEOC Guidance on Investigating, Analyzing

Retaliation Claims, EEOC Notice No. 915.002 (May 20, 1998). Threats of

violence to life or property, making an overwhelming number of complaints

based upon unsupported allegations, or bypassing the chain of command in

bringing the complaints, is the type of activity which is unreasonable

and therefore, not protected by Title VII. Id.

Therefore, after a careful review of the record, based on McDonnell

Douglas 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), we agree with the agency that appellant has

failed to prove that her termination was based upon her sex or reprisal.

With respect to her claim of reprisal, we find that appellant's actions

on behalf of her husband were not protected activity. Specifically,

many of the letters appellant sent were directed towards individuals

the agency maintains were outside of her husband's chain of command,

and who were thus without authority to discipline the examiner for

her alleged behavior. Appellant has not provided any evidence to

the contrary. The bulk of the evidence reveals that appellant engaged

in this letter writing campaign not to oppose any unlawful practice,

but rather, was an attempt to discredit the examiner in the eyes of her

co-workers. Finally, we note that the September letter, which contains

the most egregious language and threats, was sent to the examiner after

appellant was directed to send all relevant information only to the

Complaint Center. Other than claiming she merely signed the September

1996 letter, appellant has failed to rebut the agency's contention that

she was terminated for her involvement in this letter.

The Commission finds that appellant failed to present evidence that

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. 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:

9/22/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1In December 1995,

appellant's husband contacted an EEO Counselor

and filed a complaint against the agency alleging

that he was sexually harassed by the examiner.

The agency dismissed the complaint for failure to

make timely EEO contact. The Office of Federal

Operations affirmed the agency's decision.

See, Joseph H. Gerolamo v. Dept. of Treasury,

EEOC Appeal No. 01964383 (March 7, 1997),

recon. denied, Joseph H. Gerolamo v. Dept. of

Treasury, EEOC Request No. 05970634 (June 12,

1997).

2Appellant's husband had been furloughed due to lack of work at the time.

3The examiner also filed an EEO complaint against appellant and her

husband in response to this letter.