Kathy G. Cress, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionSep 1, 2009
0120080486 (E.E.O.C. Sep. 1, 2009)

0120080486

09-01-2009

Kathy G. Cress, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Kathy G. Cress,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 0120080486

Hearing No. 470-2006-00047X

Agency No. 052402

DECISION

On October 29, 2007, complainant filed an appeal from the agency's

September 24, 2007 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 appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

ISSUE PRESENTED

Whether the AJ's finding after a hearing that complainant was not

subjected to unlawful discrimination or retaliation, is supported by

substantial evidence in the record.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a GS-08 Customer Service Representative with Accounts Management in

Covington, Kentucky. On May 31, 2005, complainant filed an EEO complaint

alleging that she was discriminated against, when:

1. Commencing on or about January, 2004, a co-worker (E1)1 subjected

complainant to a sexually hostile working environment and to a hostile

work environment based on her association with a victim of sexual

harassment (complainant's husband)2;

2. Commencing on or about March 1, 2005 and continuing thereafter,

complainant was unlawfully subjected to a hostile working environment

in retaliation for complainant's protected EEO activity [arising under

Title VII] and/or complainant's association with her husband (who had

engaged in protected activity)3;

3. Complainant was subjected to reprisal because of her protected EEO

activity and/or complainant's association with her husband when, on or

about March 25, 2005, complainant received a letter from the Department

Manager (DM) with a subject line "insubordination"; and

4. Complainant was subjected to retaliation because of her protected EEO

activity and/or her association with her husband when, on or about March

29, 2005, complainant was issued a letter of counseling dated March 28,

2005 from DM.

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 timely

requested a hearing and the AJ held a hearing and issued a decision on

September 18, 2007.

The AJ found that the alleged sexual harassment was perpetrated by a

female employee (E1) who had been involved in a sexual relationship

with complainant's husband in 2001, before complainant and her husband

were married. The AJ found that E1 allegedly snickered, tossed her head,

and laughed "maniacally" every time she saw complainant. Additionally,

E1 frequently came into complainant's work unit (but not into the aisle

where complainant was working) to sell items and for other reasons.

On these occasions, E1 would stop and make sure that complainant saw

her in the unit and she would look at complainant and laugh, snicker,

smile, or grin at her.

The AJ found that complainant failed to carry her evidentiary burden to

establish a prima facie case of sexual harassment. More specifically,

she failed to establish element number three of a prima facie case of

sexual harassment i.e. the harassment was "because of sex." The AJ

additionally found that complainant failed to establish that she was the

victim of unlawful harassment because of her association with her husband,

i.e., because of her husband being male. The AJ noted that there was no

persuasive evidence that E1 treated males less favorably than females

in the work environment and/or that, during the relevant time period,

E1 was motivated by an interest in resuming a romantic relationship with

complainant's husband.

Addressing the basis of reprisal, the AJ found that complainant failed

to persuasively establish that the complained of acts of harassment and

disparate treatment, as demonstrated by the nature and/or the context

of the harassment, were directed at her because she was associated with

her husband who had engaged in protected EEO activity. The AJ noted

that 21 months elapsed between her husband's prior EEO activity and

the two challenged adverse letters of counseling which were issued to

complainant on March 25, 2005 and March 29, 2005. The AJ further found

that complainant did not establish a prima facie case of reprisal based

on her opposition to activity that is unlawful under Title VII.

Assuming, arguendo, that complainant established a prima facie case,

the AJ found that the agency articulated legitimate, nondiscriminatory

reasons for issuing the two letters of counseling. Specifically, with

respect to the March 25, 2005 letter of counseling, DM testified that he

wanted to have a counseling session with complainant on March 25, 2005

in order to inform her not to send emails with personal information and,

also, to tell her to stop targeting E1 by demanding that he take action

as he did not believe that E1's behavior warranted action against her.

DM also testified that, pursuant to the collective bargaining agreement,

a bargaining unit member such as complainant did not have the right to

have a union steward present for a counseling session. DM testified that

he did not permit complainant's husband to be present at the intended

counseling session because it was not appropriate for any relative of

his employee to be present when he was counseling one of his employees

about their conduct. DM testified that he issued the March 25, 2005

counseling letter to complainant in order to document her insubordination

on March 23, 2005 when she refused to meet with him as he had requested

her to do. With respect to the March 29, 2005 letter of counseling, DM

again testified that he needed to direct complainant to stop demanding

that he take unwarranted action against E1. DM stated that he did not

believe E1's behavior did not meet the criteria for sexual harassment.

As to this particular disciplinary action, the AJ found that complainant

failed to establish that she engaged in protected activity based upon

the "opposition clause" within the meaning of the law. Specifically,

complainant failed to establish that her allegedly subjective good

faith belief that she was currently being subjected to unlawful sexual

harassment was an objectively reasonable belief based upon the totality

of the evidence. More specifically, an objective and reasonable person

would not believe that an employer was subjecting complainant to unlawful

sexual harassment when the aforementioned behaviors of E1 were viewed

in light of the personal animosity4 between all three individuals and,

also, the factual nature of E1's currently complained of behaviors.

The AJ therefore, found no discrimination as to the entire complaint.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

Complainant has presented no new arguments on appeal. The agency asks

the Commission to affirm the final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. An AJ's

credibility determination based on the demeanor of a witness or on the

tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

Sexual Harassment

In order to establish a prima facie case of sexual harassment, the

complainant must prove, by a preponderance of the evidence, the existence

of five elements: (1) that she is a member of a statutorily protected

class; (2) that she was subjected to unwelcome conduct related to her sex;

(3) that the harassment complained of was based on her sex; (4) that

the harassment had the purpose or effect of unreasonably interfering

with her work performance and/or creating an intimidating, hostile, or

offensive work environment; and (5) that there is a basis for imputing

liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,

903 (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 on Harris v. Forklift Systems, Inc., EEOC Notice

No. 915.002 (March 8, 1994). In this case, although complainant appears

to have been subjected to very unpleasant and unprofessional treatment

from E1, the AJ's finding that the complained-of harassment was not

based on her sex, is supported by substantial evidence in the record.

Retaliation

The Commission has stated that Title VII's anti-reprisal provision

"protects those who participate in the EEO process and also those who

oppose discriminatory employment practices." Mary Ann Whipple v. Dept. of

Veterans Affairs, EEOC Request No. 05910784 (February 21, 1992). In that

case, the Commission noted that federal courts have held that Title

VII's opposition clause protects employees who exercise a reasonable,

good faith belief in opposing perceived discrimination, even if they

are subsequently shown to be mistaken as a matter of law or fact.

The record indicates that complainant was disciplined for complaining

about behavior by E1 which she believed to be harassing. Like the AJ,

however, we find that even though complainant may have called E1's

behavior "sexual harassment," complainant could not have actually had a

"a reasonable, good faith belief" that she was opposing discrimination

because by complainant's own description, the conduct was not connected

to complainant or her husband's membership in a protected group.

Specifically, the complained-of behavior described in complainant's

March 23, 2005 email was as follows:

(1) E1 was present in complainant's work unit, for example, talking

to an employee located two cubicles away from complainant;

(2) E1 was present in complainant's husband's work unit and made

eye contact with her husband; and

(3) E1 laughed at complainant.

We find that the AJ's finding that complainant did not prove that she was

subjected to retaliation, is supported by substantial evidence in the

record. The record indicates that complainant was opposing harassment

that she knew was motivated by personal animosity. Therefore, the

discipline she received for her harassment complaints cannot constitute

unlawful retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the final

order.

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

________9-01-09__________

Date

1 E1 states that as of June 2003, she was a Clerk for a Professional

Practitioner Unit. In August 2004, she became a Management and Program

Assistant.

2 Complainant alleges that on or about June 2, 2003, an anonymous letter

was sent to complainant and her husband at their home, which contained a

cartoon depicting complainant and her husband. The cartoon used sexual

and racial language and images, and complainant contends that it had

to be from E1 since it contained information about her husband of which

only she and E1 would be aware.

3 Complainant states that: the Department Manager (DM) became

confrontational with her and would not allow her husband or another

witness to be present during a meeting; the DM issued her two letters

of counseling; and the DM held an oral counseling session with her.

Complainant reported to E1's immediate supervisor that E1 had laughed

"maniacally" at her outside of the bathroom and that E1's supervisor's

initial response was that there was nothing that she could do about

the situation. Finally, complainant indicated that, in about January

2006, her immediate supervisor notified her that she broke the chain of

command when she spoke with E1's supervisor.

4 The AJ found that E1's animosity was caused by complainant (and her

husband's) filing of a stalking complaint in civil court against E1 and,

also their attempt to obtain a restraining order against E1 in or about

June 2003. The AJ noted E1's testimony that prior to the filing of

such complaints, she believed that she and complainant's husband had a

friendly relationship, but that after the harassment charges were filed,

the friendship "ceased abruptly."

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Office of Federal Operations

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