0120092546
11-12-2009
Jo A. Santiago, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Forest Service), Agency.
Jo A. Santiago,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Forest Service),
Agency.
Appeal No. 0120092546
Hearing No. 530200700396X
Agency No. FS200700260
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 21, 2009 final order concerning her equal
employment opportunity (EEO) complaint alleging 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.
The record reflects that complainant had held the position of Director
of the Cranberry Mountain Nature Center (CMNC), Visitor Information
Specialist, GS-lOOl-09, on the Monongahela National Forest, located in
Richwood, West Virginia since 1995. Complainant alleged that the agency
subjected her to hostile workplace discrimination based on sex (female)
and reprisal for prior protected EEO activity under Title VII when:
effective December 18, 2006, she was required to submit leave requests
to her supervisor prior to taking leave, which was a change in office
practice; and she learned that effective January 2007, she was required
to report to the Gauley Ranger District in Richwood, West Virginia during
the winter months, instead of Elkins, West Virginia.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On February 20, 2009, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that even if
complainant could establish a prima facie case, the agency had articulated
legitimate, nondiscriminatory reasons for its actions. The AJ noted that
previously, complainant had been working out of the Supervisor's Office
during the winter months because the CMNC, the center she directed the
rest of the year, was closed and the Supervisor's Office, located in
Elkins, West Virginia, was closer to her home. Although complainant's
supervisor did not immediately take any action regarding this arrangement,
he provides an explanation for this delay. He stated in his affidavit
that he "did not immediately focus on where the [complainant] was
reporting" when he first became supervisor in April 2006. He further
explained, "I did not immediately effectuate this change because of my
status as a new supervisor. I felt that I could not immediately press for
changes until I had a better understanding of the needs of my district
and staff." He maintained that he had asked complainant to report to
her official duty station because it was her assigned duty station and
he had experienced some difficulty tracking her whereabouts; he wanted
to be fair to all of his employees, who were already reporting to the
Gauley Ranger District Office everyday and he wanted to encourage a team
environment by including complainant in her assigned district. As for
the annual leave requirement issued to complainant by her supervisor,
this policy is regulated by the agency. Complainant did not follow this
policy in the past. She simply submitted her work schedule calendar
and took leave as she needed it. Pursuant to agency policy, complainant
required her supervisor's approval prior to taking leave. Complainant did
not receive such approval prior to December 18, 2006. After December
18, 2006, her supervisor requested that she submit her annual leave
requests in advance and noted that she must receive verbal or written
approval prior to taking leave. Complainant's supervisor did not deny
complainant's leave requests since he made his request.
In summary, the AJ found that complainant may have disputed the soundness
of her supervisor's decision to require her to abide by the agency's
leave policy and report to the Gauley Ranger District office during
the winter months, but it was his prerogative as her supervisor to
enforce leave policy and require her attendance at the Gauley Ranger
District office, her assigned district office. This was complainant's
first winter under his supervision and he was not required to follow the
precedent set by his predecessor. The AJ further found that the events
of which complainant complains, either individually or collectively fail
to rise to the level of unlawful harassment protected by Title VII.
Most importantly, there is no evidence that any of the actions or
decisions of agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. On appeal, complainant
asserts, inter alia, that the AJ erroneously determined that she had
not suffered adverse treatment because of her protected bases and had
not been subjected to a hostile workplace environment.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that 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); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the
harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, complainant asserted that based on her statutorily protected
classes, her supervisor continuously subjected her to a hostile work
environment. However, we find that complainant has not shown that she
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving her protected classes, or the harassment complained of
was based on her statutorily protected classes. Further, complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While complainant
has cited various incidents where her supervisor took various actions that
were either adverse or disruptive to her, we find that complainant fails
to show that these incidents were as a result of unlawful discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
November 12, 2009
__________________
Date
2
0120092546
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092546