01980233
10-26-2000
Gloria J. Auld, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Gloria J. Auld v. Department of the Treasury (Internal Revenue Service)
01980233
October 26, 2000
.
Gloria J. Auld,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01980233
Agency No. 87-4127R1
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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (Black), color (black), and retaliation
for prior EEO activity when:
(1) She was subjected to a hostile working environment from October
1986 through July 1987; and
She was denied a lateral reassignment to another group on or about June
5, 1987.
The record reveals that during the relevant time, complainant was
employed as a Group Secretary (Typing), GS-318-04, in Group 1502 of the
Examination Division at the agency's San Jose, California facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on July 22, 1987.
At the conclusion of the investigation, the agency's Regional Complaint
Center (RCC) canceled the complaint on the grounds that complainant
was no longer aggrieved. Complainant appealed to the Commission and
we affirmed the cancellation of the complaint on September 9, 1988.
Complainant's representative then filed a Request to Reconsider the
decision, and on August 10, 1989, the Commission reversed its prior
decision and remanded the complaint back to the agency for further
processing. See Auld v. Department of the Treasury, Appeal No. 01882531
(September 9, 1988); Request No. 05890090 (August 10, 1989). Complainant
next requested a hearing on August 25, 1990. However, complainant's
representative then informed the EEOC Administrative Judge (AJ) on
March 12, 1991, that complainant was medically unable to proceed with
the hearing. On November 22, 1991, the RCC next dismissed the complaint
as moot, based on complainant's removal from the agency effective August
31, 1990. Complainant's representative then filed an appeal of the
dismissal to the EEOC on March 24, 1994, but the Commission dismissed
the appeal as untimely on August 25, 1994 (EEOC Appeal No. 01942751).
Complainant's representative again filed a Request to Reconsider the
decision on September 26, 1994, and the EEOC granted the request,
finding the appeal was not untimely and the complaint was not moot;
accordingly, this matter was remand to the agency for processing.
EEOC Request No. 05941032 (November 8, 1995). After complainant then
notified the AJ that she was still medically unable to participate in
a hearing, and a letter from her physician indicated that she might be
able to participate by 1998, the AJ determined that such a delay would be
prejudicial to the agency, and ordered the case returned to the agency for
a final decision on the record. The agency then issued its FAD finding
that complainant had failed to meet the required elements of a prima
facie case of hostile work environment harassment, or a prima facie
case of disparate treatment concerning her requested reassignment.
On appeal, complainant contends that she was forced to leave the agency
because of the stress, worry, and fear caused by her working conditions
and the racial harassment by her immediate supervisor (S-1). The agency
requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish
a prima facie case of harassment because the harassment claimed was not
shown to be sufficiently severe or pervasive to alter the conditions of
complainant's employment so as to create a hostile work environment.
See Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999); Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); EEOC Compliance Manual, Volume 2, EEOC Notice No. 915.002
(March 8, 1994); EEOC Enforcement Guidance on Harris v. Forklift Systems,
Inc., at 3, 6. In reaching this conclusion, we note that even if the
incidents occurred as complainant alleged, they still would not rise to
the required level of harassment.
As to complainant's requested reassignment, the Commission agrees with
the agency that complainant failed to establish a prima facie case of
discrimination based on race and color, because she proffers no evidence
that any other similarly situated secretary not in her protected groups
received such a transfer when requested. We do find, however, that
complainant established a prima facie case of reprisal, since she was
involved in an EEO complaint in July 1986, of which the Branch Manager
was aware, and that he denied her requested transfer to Group 1507 in
June 1987. This is such a short period of time that a causal link can be
inferred between complainant's involvement in the EEO complaint process
in July 1986 and the denial of her transfer in June 1987. Hochstadt,
supra.
Nevertheless, the agency articulated a legitimate, nondiscriminatory
reason for denying the transfer, namely, that the position to
which complainant wanted to be transferred had already been filled.
Complainant has not been able to show that this reason is pretext to
mask discrimination, since she has proffered no evidence that any other
similarly situated employee not in her protected groups was more favorably
treated regarding a transfer request under similar circumstances.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
October 26, 2000
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.