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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0120080486
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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