01975430
11-19-1999
Judith Wagner, Complainant, v. Andrew Cuomo, Secretary, Department of Housing and Urban Development Agency.
Judith Wagner, )
Complainant, )
) Appeal No. 01975430
v. ) Agency No. CH-95-01
)
Andrew Cuomo, )
Secretary, )
Department of Housing and )
Urban Development )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her Equal Employment Opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 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.<1> Complainant alleges that the agency harassed her
on the bases of race (White), sex (female), age (52) and in reprisal for
prior EEO activity. The Commission accepts the appeal in accordance with
EEOC Order No. 960.001. For the following reasons, we affirm the FAD.
The record reveals that during the relevant time, complainant was a
Mortgage Servicing Clerk at an agency facility in Milwaukee, Wisconsin.
Complainant alleges that the agency harassed her when her immediate
supervisor issued a letter of reprimand and threw darts at a photograph
of her, behavior condoned by upper level management. Complainant sought
EEO counseling and subsequently filed an EEO complaint on October 4, 1994.
At the conclusion of the investigation when complainant failed to timely
request a hearing before an EEOC Administrative Judge, the agency issued
a final decision.
In its FAD, the agency specifically dismissed the claim concerning the
letter of reprimand pursuant to 64 Fed. Reg 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(4))
since complainant had filed a grievance on the same matter. The agency
concluded that complainant failed to establish that the her supervisor
actually threw darts at her picture. Assuming arguendo that the alleged
conduct had occurred, the FAD found that complainant failed to prove that
her supervisor's conduct was motivated by discriminatory or retaliatory
animus or that it was sufficiently severe or pervasive to create a
hostile work environment. It is from this decision complainant now
appeals. Complainant proffers no new evidence in support of her appeal.
The agency requests that we affirm its FAD.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of race, color, gender, religion, sex, national
origin or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Similarly, the
Commission has stated that: "Harris also applies to cases involving
hostile environment harassment on the basis of age or disability."
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 9.
The Supreme Court stated: �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). Additionally,
our guidelines state that: �In defining the hypothetical reasonable
person, the Commission has emphasized that the reasonable person standard
should consider the victim's perspective and not stereotyped notions
of acceptable behavior.� EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6.
Initially we affirm the agency's dismissal of the claim concerning
the letter of reprimand pursuant to 29 C.F.R. �1614.107(a)(4) (1999).
However, we will consider the claim as background evidence to the extent
it is probative of complainant's harassment claim.<2> See Silva v. United
States Postal Service, EEOC Request No. 05960115 (June 20, 1996).
Upon review of the evidence, the Commission finds that complainant
fails to establish that the alleged harassment ever occurred. Beyond
complainant's bare assertion that her supervisor threw darts at her
picture, there is no credible documentary or testimonial evidence to rebut
her supervisor's denial of the charge. There is no evidence of marring
or tearing on the surface of the xeroxed photograph complainant provided,
and no one attested to seeing darts being thrown. Furthermore, the record
supports a finding that complainant was reasonably reprimanded for failure
to follow an order, and there is no evidence that upper level management
condoned behavior motivated by discriminatory animus. Accordingly,
we conclude that the agency did not subject complainant to conduct
sufficiently severe or pervasive to create a hostile work environment.
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 (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2 Although the agency claims not to have investigated the claim, the
circumstances surrounding the letter of reprimand and the history of
complainant's grievance steps are well documented in the record.