Judith Wagner, Complainant,v.Andrew Cuomo, Secretary, Department of Housing and Urban Development Agency.

Equal Employment Opportunity CommissionNov 19, 1999
01975430 (E.E.O.C. Nov. 19, 1999)

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.