01975778
01-28-2000
Kathleen R. Jordan, Complainant, v. Andrew Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Kathleen R. Jordan v. Department of Housing and Urban Development
01975778
January 28, 2000
Kathleen R. Jordan, )
Complainant, )
)
v. )
) Appeal No. 01975778
Andrew Cuomo, ) Agency No. SF-92-10
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
_______________________________)
DECISION
The complainant filed a timely appeal with the Equal Employment
Opportunity Commission (the Commission) from the agency's final decision
(FAD) concerning her allegation that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
The issue presented in this appeal is whether the complainant established
that she was discriminated against because of her race (Negro) and
color (black) when management failed to respond adequately and take the
necessary steps to prevent her from being harassed by another employee.
The complainant, at the time of her complaint, was a Realty Clerk, GS-5,
in the Property Disposition Branch, Housing Management Division in the
agency's Phoenix, Arizona Field Office. According to complainant, she
was discriminated against when management accused her of harassing a
co-worker, C-1 (Mexican-American). C-1, also a Clerk, sat across from
the complainant. Complainant maintained, however, that C-1 harassed her.
Complainant argued that her second-level supervisor, A-2, the Deputy
Chief, Property Disposition (Mexican-American), sided with C-1 because
they both were Hispanic.
Complainant testified that, in early March 1992, C-1 made racial comments
in her presence, i.e., blacks were loud, pushy and aggressive; that blond
haired white people made her skin quiver; that she got sick to her stomach
around blond people; that if they touch her, she got raised bumps on her
skin; and that whites like Mexicans better than Blacks because Mexicans
are quieter. Complainant admitted saying "kissie, kissie" to C-1 when
she, C-1, once tried to speak to A-3, the Chief Property Officer.<2>
In response, C-1 allegedly replied "[complainant's name], I am tired of
listening to this black s ___!" Later, C-1, according to complainant,
tried to say that she meant she was tired of listening to black music.
Complainant reported C-1's comments to her immediate supervisor, A-1.
A-1 testified that complainant told him that she was having problems with
C-1 and felt that she was making derogatory remarks or racial slurs.
According to A-1, the complainant was very agitated and upset when
she spoke to him. A-1 indicated that, to his knowledge, neither C-1
nor the complainant ever had difficulties getting along with others.
He had worked with both women in the past. A-1 testified that he
made an effort to correct the problem between the complainant and C-1.
He also notified the union about the matter. According to A-1, it was
very obvious that C-1 and the complainant "greatly" disliked each other.
He stated that he "would not have been surprised if one had reached
over and slapped the other." Consequently, A-1, with the approval of
the union, moved their desks about two feet apart and turned them so
that they would not face each other.
A-1 stated that C-1 and the complainant both wanted the other person
to be moved to another section. A-1 indicated, however, that this was
impossible due to the importance of each to their operation. A-1 gave
each employee an informal reprimand and both received unsatisfactory
ratings on the element in their interim performance appraisals pertaining
to how well they got along with fellow employees. Subsequently, A-1
met with both A-2 and A-3 about the matter. Although they thought A-1
had acted properly, he was ordered to return the complainant and C-1's
desks to their original positions.<3>
A-2 testified that there were apparently two rounds of problems between
the complainant and C-1. The first round consisted of the matters
discussed above which were addressed by A-1. About a month later,
a second round of incidents arose. A-1 had left the agency and was no
longer the complainant's supervisor. The second round involved C-1's
claim that when paper on her desk was hanging over onto the complainant's
desk, the complainant would push it back. Also, the complainant accused
C-1 of listening to her telephone conversations. According to A-2, he
was not involved in the first round of problems. After these subsequent
matters were brought to his attention, A-2 interviewed the complainant
and C-1 on three separate occasions. Both women agreed to settle their
differences, A-2 stated. A-2 felt it was necessary to give each woman
a letter of oral counseling because of the recurring nature of their
dispute.<4> Both complainant and C-1 challenged their letters and they
were eventually removed.
A-2 maintained that, during his interviews, he learned that both employees
felt that the other was harassing them. He felt that their relationship
had deteriorated to the point that no matter what the other one did, it
was going to be perceived as harassment. Like A-1, A-2 indicated that
neither complainant nor C-1 had a history of interpersonal problems with
their co-workers. He thought that this situation was a personality clash
and not racially motivated. Notwithstanding the complainant's assertion
that C-1 was biased against whites, A-2 noted that she was married to a
white man. In September 1992, C-1 was transferred to another division
of the office. According to management, C-1 was reassigned because her
husband also worked in the unit, not because of her altercations with
the complainant. The complainant argued that management should have
acknowledged that C-1 was prejudiced against her and had harassed her.
She also felt that management should have discussed C-1's reassignment
with her and that she should have been given the option to decide what
would happen to C-1.
Contrary to A-2's assertion, C-1 testified that she believed she was
transferred because of her altercation with the complainant. According to
C-1, she and the complainant did not have any difficulties when they first
started working together. She maintained that the complainant became
upset with her because she refused to participate in the complainant's
attempts to have A-3 fired. We note here the testimony of A-1, who stated
that the complainant did not like A-3. C-1 felt that her problems with
the complainant were indicative of a personality clash, not a racial
problem. She did acknowledge saying that she was tired of, among other
things, listening to complainant's black music. C-1 testified that she
did not consider this to be a racial remark. Finally, C-1 denied the
complainant's assertion that she made derogatory comments about white
people. Noting the fact that she was married to a white man, C-1 stated
"I get along with other blacks. It is just [the complainant] that I am
not able to get along with."
The agency analyzed this claim as one of disparate treatment rather
than harassment. Since complainant clearly raised the claim as one of
harassment, the agency should have analyzed it as such. Harassment of
an employee that would not occur but for the employee's race, color,
sex, national origin, age, disability or religion is unlawful if it is
sufficiently patterned or pervasive. Garretson v. Department of Veterans
Affairs, EEOC Appeal No. 01945351 (April 4, 1996); McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The Commission's Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two types
of such harassment: (1) harassment that results in a tangible employment
action; and (2) harassment that creates a hostile work environment.
Based on the facts of this case, we will analyze this matter as an
allegation of harassment that creates a hostile work environment.
To establish a prima facie case of hostile environment harassment,
the 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 the statutorily protected
class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Evidence of the general work atmosphere, involving employees other than
the complainant, also is relevant to the issue of whether a hostile
environment existed in violation of Title VII. Vinson v. Taylor, 753
F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part,
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
To avoid liability for hostile environment harassment, an agency must
show that: 1) the acts/conduct complained of did not occur; 2) the
conduct complained of was not unwelcome; 3) the alleged harassment
was not sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment; 4)
immediate and appropriate corrective action was taken as soon as the
employer was put on notice; and/or 5) there is no basis for imputing
liability to the employer under agency principles. See Vinson, supra.
The Commission finds that complainant has not established a prima facie
cases of harassment based on race and color. Although complainant is
black, we do not find that the conduct at issue was based on her race.
In making this finding, we note that the totality of the record indicates
that neither complainant nor C-1 ever had a history of interpersonal
problems with their co-workers. According to testimony, it was very
obvious that C-1 and the complainant "greatly" disliked each other and
that this situation was a personality clash and not racially motivated.
Accordingly, we AFFIRM the agency's finding of no discrimination.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Jan 28, 2000
______________ __________________________________
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:
_________________________
_________________________
1On 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.
2C-1 testified that, by saying "kissie, kissie" to her, the complainant
was implying that she was "sucking up" to A-3.
3According to A-1, A-2 and A-3 felt that the employees should not dictate
how management was going to react.
4A-2's counseling memorandum to complainant indicated that her
actions provoked C-1, were not appropriate, and would not be tolerated.
The complainant was informed that further incidents would be grounds for
disciplinary action. A-2's counseling memorandum to C-1 indicated that
some of the comments she made to the complainant were racially offensive.
Additionally, he indicated that such language and her actions were
inappropriate and would not be tolerated. C-1 was also informed that
further incidents of this type could result in disciplinary actions
being taken.