01A23447
08-06-2003
Marsha S. Hanson, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Marsha S. Hanson v. Department of Homeland Security
01A23447
August 6, 2003
.
Marsha S. Hanson,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A23447
Agency Nos. TD 99-2007 and TD 99-2201
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Mission Support Specialist at the agency's West Texas/New
Mexico Customs Management Center. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 8, 1998, alleging
that she was discriminated against on the bases of race (Caucasian),
sex (female) and age (D.O.B. 10/18/44) when she was issued a letter
of reprimand. Thereafter, complainant filed a second complaint on
March 11, 1999, alleging that she was harassed in reprisal for previous
EEO activity when the Center Director (White male, D.O.B. 5/6/40): (1)
on January 29, 1999, questioned her grammar, made her re-type a note
and questioned her regarding travel of interviewers; (2) on February 1,
1999, raised his voice at her during a meeting, criticized her work and
made the comment, "[y]ou're smiling, do you think I'm stupid;" and,
(3) on February 11, 1999, verbally attacked her at a meeting saying,
"[w]hat, what, I can't hear you" and interrupted her repeatedly.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing but subsequently withdrew her request. Thereafter,
the agency issued a final decision.
In its FAD, the agency found that, with reprimand issue, complainant
failed to establish a prima facie case of race, sex or age
discrimination. The agency also found that management articulated a
legitimate, nondiscriminatory reason for its treatment of complainant.
Specifically, complainant's supervisor stated that he had received a
number of complaints about her work and counseled her regarding her lack
of professionalism towards customers. He contended that her behavior
did not change after the counseling and he issued her a reprimand.
The agency concluded that complainant was unable to show evidence of
pretext of discrimination.
With respect to complainant's claim of retaliatory harassment, the
agency found that the incidents complained of were not so severe or
pervasive that it altered the conditions of her employment or created
an abusive work environment. On appeal, complainant contends that the
agency did not make a good faith effort to investigate her complaints.
The agency makes no contentions on appeal.
A claim of disparate treatment based on race, sex and age should be
examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to
prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has articulated such a reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although
the burden of production may shift, the burden of persuasion, by a
preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
Assuming, arguendo, that the complainant established a prima facie case
of race, sex and age discrimination, we find that the agency articulated
a legitimate, nondiscriminatory reason for its actions with respect
to the reprimand. The record reveals that complainant's supervisor
(Hispanic male, D.O.B. 3/4/40, no known EEO activity) stated in his
affidavit that he issued her a reprimand because of her performance.
He stated that he had several counseling sessions with complainant to
correct her performance, but her nonprofessional behavior continued.
He stated that he had counseled another employee (White male) which had
resulted in an improvement in his behavior and a letter of reprimand
was not necessary. Complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination.
To establish a claim of harassment, a complainant must show that (1) he
is a member of the statutorily protected class; (2) he 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. 29 C.F.R. � 1604.11; Humphrey
v. USPS, EEOC Appeal No. 01965238 (October 16, 1998). 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. 915.003 (March 8, 1994).
Further, the harassment must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998).
Here, complainant is alleging harassment on the basis of reprisal. The
record reveals complainant cited three instances of harassment by the same
manager. A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe. Ford
v. Department of Veterans Affairs, Appeal No. 01984630 (January 2, 2002).
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. Id. (citing Harris v. Forklift Systems, 510 U.S. 17
(1993)). Here, we find that incidents cited by complainant were not
sufficiently severe or pervasive to constitute a hostile work environment.
With respect to complainant's assertion that the agency failed to
make a good faith effort to investigate her complaints, she submitted
no evidence in support of her contention, and our review of the record
lends no support to complainant's contention. 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 (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
August 6, 2003
__________________
Date
1The complaints herein were originally filed against the Department of
Treasury, Customs Service. The Customs Service is now a component of
the Department of Homeland Security.