01A50947
05-31-2006
Malinda N. Chatman, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Malinda N. Chatman,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A50947
Agency No. 030345
Hearing No. 130-2004-00059X
DECISION
Complainant timely initiated an appeal from the agency's final action
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 accepted pursuant to 29 C.F.R. � 1614.405(a).
During the relevant time, complainant was employed as a Community
Development Technician, GS-7, at the agency's Rural Housing Service,
Rural Development in Huntsville, Alabama. On March 21, 2003, complainant
filed a formal EEO complaint. Therein, complainant claimed that she was
subjected to harassment on the bases of race (African-American), religion
(Baptist), and in reprisal for prior protected EEO activity when:
(a) her supervisor repeatedly changed her work schedule;
(b) her supervisor used profanity when speaking to her;
(c) her supervisor allegedly broke into her home; and
(d) she was accused of threatening to kill her supervisor, which defamed
her
character.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision on September 1, 2004, finding no discrimination.
In his decision, the AJ found that complainant failed to establish a prima
facie case of hostile work environment based on race, religion and/or
reprisal for prior protected activity. The AJ concluded that complainant
failed to provide that she was subjected to harassment sufficiently
severe or pervasive so as to render her work environment hostile.
The record contains the following testimony and documentation regarding
complainant's harassment claim:
Allegation (a)
The record reflects that complainant's Supervisor (S1) stated that
he became concerned about complainant's work schedule because she
"worked past her normal working hours...and I asked her to not work
past her normal working hours." S1 further stated that complainant
was not authorized to work overtime, and that the agency's facility
was in an "unsavory location," and that it was not a good neighborhood
after dark.
S1 stated that he revised complainant's work schedule from 7:15 a.m. -
4:00 p.m. to 7:00 a.m. - 3:30 p.m. after he learned that complainant
worked overtime on two separate occasions. S1 stated that he changed
complainant's work hours because she continued to stay past her normal
work hours and "told other employees that she didn't care what I had told
her about not working past her normal working hours, and I had discussed
this with the people in Montgomery, and they informed me that I needed
to change her working hours and to do it in writing, and that's what
I did." S1 stated that on June 10, 2002, he sent a letter to complainant
concerning her work hours. Specifically, S1 stated that the letter was
an official notification "that she wasn't to work past her work hours."
The record further reflects that the former Director of Administrative
Programs (former Director) stated that she was contacted by the Supervisor
for advice concerning complainant's work schedule.1 Specifically, the
former Director stated that the Supervisor wanted to know if he had the
authority to tell complainant not to work overtime and "I told him that
he did." The former Director stated that she told the Supervisor that he
could tell complainant "not to work overtime, that she was entitled to
overtime pay, but she also, it had to be overtime that was ordered and
authorized prior to her working it." The former Director stated that
following their conversation, the Supervisor instructed complainant not
to work beyond her normal work hours.
Allegation (b)
The record reflects that S1 stated "to my knowledge, I've never used a
curse word directed to [complainant]. I might have said I don't give
a damn about something, but that wasn't directed to her."
The record reflects that the Farm Loan Manager (Manager) testified that
he heard the Supervisor use profanity in the work place, but it was not
directed to complainant. The record reflects that another co-worker,
a Community Development Assistant (Assistant) stated that she also heard
the Supervisor used profanity in the work place, but not directly to
complainant.
Allegation (c)
The record reflects that S1 stated that, in October 1997, he and the
Manager conducted an inspection pursuant to their official duties on a
house being financed by the agency, which was located on the same road
as complainant's house. S1 further stated that the builder who built
complainant's house was the same one building the house they inspected.
S1 stated that after inspecting the identified individual's house, the
Manager wanted to look at complainant's house "to see if the builder was
building . . . the same quality house and see how they were coming on
her house." S1 stated that he and the Manager tried to look in the house
but it was locked. While they were there complainant's uncle drove up
and they introduced themselves and gave him their card. S1 stated that
after he returned to the office, he informed complainant that he and
the Manager stopped to look at her house, but that it was locked so they
could not get in. S1 stated that complainant "said, well you need to come
back some time and look at it. I'd like for you to see it." S1 stated
that few weeks later he and his wife stopped by complainant's house to
view it. S1 stated that at that point, complainant never accused him of
breaking into her house. S1 stated that it was not until seven years
later when complainant "made a written accusation that I had broke[n]
into her house."
The record further reflects that the Manager corroborated that in
October 1997, he and S1 "were financing a house right down the road from
[Complainant's] for [identified individual]." The Manager stated that the
reason that he and S1 were inspecting the identified individual because
"we were financing her house." The Manager stated that it was part of
their job "to make periodic inspections on the house" that the agency was
financing. The Manager further stated that the identified individual's
contractor was also building complainant's house. The Manager stated that
because they were there to inspect the identified individual's house, they
stopped by to look at complainant's house. The Manager stated "it wasn't
uncommon for us to stop by and look at other houses that the contractor
has built just to look at the workmanship, just to look." The Manager
acknowledged that the agency was not financing complainant's house, but
wanted to take a look at it because it involved the same contractor.
Allegation (d)
The record reflects that S1 stated that while he approved complainant's
travel voucher, he asked her to verify her mileage because "it appeared
to be a little excessive." S1 further stated that complainant got "real
irate" about it. S1 stated that complainant called his supervisor
(complainant's second-level supervisor (S2)) and "said I wouldn't
approve it and that I said it was incorrect, and [S2] called me and
told me to sit down and talk with her about it." S1 stated that he
called complainant in his office, and she "got real loud and boisterous
and told me that I couldn't talk to her, that I couldn't supervisor
hogs or dogs, and I finally asked her to leave my office, she got so
loud and ugly." S1 stated that he later sent an e-mail to the State
Director, former Director, and S2 requesting assistance in reporting a
situation "that had arisen where I'd been informed by other employees
that she was making threatening remarks regarding me." Specifically,
S1 stated that he was informed by other employees that complainant
made a remark that she would like "to shoot my big fat belly off, and
the first time it was reported to me I dismissed it as her blowing up
steam and ignored it." S1 stated that two days later, another employee
informed him that complainant "was reading scriptures and willing ill
on me and my family and my children." S1 stated that the next thing he
knew was that were was an OIG investigation into complainant's remarks.
S1 stated "nothing has ever been reported to me as to the conclusion or
whether the threats were real or not." Furthermore, S1 stated that he
did not take any action against complainant.
The record further reflects that the Budget Analyst (Analyst) stated that
in January 25, 2002, she contacted complainant concerning the processing
of her travel voucher. The Analyst further stated that during their
conversation complainant "said you need, that respect was, had to be
earned and not just given, and that she had worked with [Supervisor]
for a long time, and that she wasn't going to play games any more,
that she was going to shoot him in his big fat belly." The Analyst
stated that she was "shocked" by complainant's comment because she was
serious. The Analyst stated that she and complainant then "finished
our conversation regarding processing the travel voucher, and I told
her if she had any other problems to let me know, I would help her out,
and we hung up, and then I immediately reported it to my supervisor."
The Analyst stated "I felt that was my duty as an employee to have heard
the threat, to report it."
The former Director stated that after the Analyst reported to her
concerning the threat that complainant made, she asked the Analyst
to her to "document the conversation, and then we reported it to the
national office and to the Human Resource Specialist in St. Louis."
The former Director stated that because they reported the indicant,
an identified official in the National Office "in turn notified OIG."
The former Director stated that complainant was not penalized at the
conclusion of the OIG investigation.
The record reflects that the Assistant stated that she overheard
complainant telling the Analyst that she would shoot the Supervisor
"in his fat belly." The Assistant further stated that she considered
complainant's comment to be a threat. The Assistant stated that
complainant was not joking when she made the threat "because she was
in tears." The Assistant also stated that she overheard complainant
telling other employees that she hoped the Supervisor ran off a cliff.
Further, the Assistant stated that on one occasion, complainant told her
that she wanted the Supervisor's children to be fatherless and for his
wife to be a widow. The Assistant stated that she felt that complainant
was out to get her because of how she treated her. Specifically,
the Assistant stated that sometimes complainant "was very friendly
to me and sometimes she was just, talked to me like I was not human."
The Assistant stated that she reported these incidents to the Supervisor,
and was later asked to submit a statement to an OIG investigator.
S2 stated that the Supervisor and complainant had a personality clash
"involving their work styles." S2 stated that when complainant
approached him and complained that the Supervisor was harassing her,
he passed the information to the upper management. S2 also stated that
he had a discussion with S1, complainant and an identified official
concerning complainant's issues. S2 stated that during the discussion,
he learned that complainant had a performance problem. Specifically,
S2 stated that complainant was not doing "the loan processes, whatever
her administrative duties, she was not doing it, and in course with what
his work plans for her."
On September 24, 2004, the agency issued a final action implementing
the AJ's decision finding no discrimination.
As an initial matter, the Commission notes that some witnesses testified
by telephone at the hearing held by the AJ. The Commission has held
that testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
that specified conditions have been met. See Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 However,
because the facts of this case pre-date Louthen, the Commission will
assess the propriety of taking the testimony of some witnesses by
telephone, considering the totality of circumstances. Here, it is
unclear whether exigent circumstances existed. However, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of testimony by telephone, and neither party
objected to the manner in which these witnesses testified. Under these
circumstances, even if it is assumed that the AJ abused his discretion
by taking testimony by telephone, the Commission finds that his action
would have constituted harmless error.
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.
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 severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' 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).
Applying these principles to the facts in this case, we concluded that
the record does not support a determination that the alleged incidents
constitute a discriminatory hostile work environment. Therefore, we
find that the agency's final action implementing the AJ's finding of no
discrimination was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 31, 2006
__________________
Date
1 The former Director retired from agency employment on January 3, 2003.
2 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further,
where telephonic testimony is improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless, as is found in this case.
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01A50947
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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