Mary Ann Aanenson, Appellant,v.Lawrence Summers, Secretary Department of the Treasury Agency.

Equal Employment Opportunity CommissionSep 20, 1999
01972523 (E.E.O.C. Sep. 20, 1999)

01972523

09-20-1999

Mary Ann Aanenson, Appellant, v. Lawrence Summers, Secretary Department of the Treasury Agency.


Mary Ann Aanenson, )

Appellant, )

) Appeal No. 01972523

v. ) Agency No. 95-4257

) Hearing No. 370-96-X2350

Lawrence Summers, Secretary )

Department of the Treasury )

Agency. )

)

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of race (white), in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. Appellant alleges she was discriminated against when:

she was subjected to racial harassment by a co-worker and the agency

failed to take action to prevent further harassment and to ensure her

safety. The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED as CLARIFIED

The record reveals that appellant, a Revenue Agent, GS-12, at the agency's

San Jose District Office, filed a formal EEO complaint with the agency on

September 5, 1995, alleging that the agency had discriminated against her

as referenced above. At the conclusion of the investigation, appellant

requested a hearing before an Equal Employment Opportunity Commission

(EEOC) Administrative Judge (AJ).

Following a hearing, the AJ issued a Recommended Decision (RD) finding

no discrimination. The AJ concluded that appellant failed to establish

a prima facie case of discrimination because she failed to show the

incident of harassment at issue was racial or motivated by racial animus.

The AJ found that although she believed appellant had been assaulted by

a co-worker, she did not show persuasively that the assault was based

on appellant's race.

Because of this finding, the AJ determined that she did not have to reach

the issue whether the agency's actions in response to the incident were

sufficient under Title VII.

The agency's FAD adopted the AJ's RD.

On appeal, appellant contends that the AJ erred when she concluded that

the incident in question was not racially motivated. Appellant argued

that there was no question the incident in which the harasser (H)(Black)

grabbed appellant by the throat and stated in a loud, forceful voice,

"don't you ever speak to me that way again" must have been racially

motivated because H had repeatedly filed EEO complaints whenever they

came in contact with one another. The two prior incidents between them

occurred in 1991 and more recently, in June 1995 just less than two weeks

prior to the bathroom altercation. Appellant argued that the agency's

failure to terminate H from her employment caused her to harbor a great

deal of fear about returning to the workplace and that its placement of

H on administrative leave was not sufficient.

The agency contended that its actions were entirely reasonable considering

that its internal investigation of the alleged assault was inconclusive

and did not confirm that the assault took place. Since the agency's

investigation was inconclusive, it could not take disciplinary action

such as termination against H.

After a careful review of the record, and based on the reasoning of

Harris v. Forklift Systems Inc. 510 U.S. 17 1993 and Meritor Savings

Bank v. Vinson, 477 U.S. 57 (1986), the Commission finds that the

appellant failed to show that the agency did not act reasonably in

response to the incident in question. Although we disagree with

the AJ and find that the incident was racially motivated, and that

the incident, although singular in nature, was enough to constitute

harassment, we cannot agree with appellant that the agency's actions in

response were insufficient under the law. See, 29 C.F.R. �1604.11(a)

n.1; EEOC Policy Guidance on Current Issues of Sexual Harassment No.

137 March 19, 1990; see e.g., James v. Department of Health and Human

Services, EEOC Request No. 05940327 September 20, 1994; DeLange v.

Department of State, EEOC Request No. 05940405 (March 3, 1995).

More specifically, the agency upon learning of an altercation between

appellant and H, placed both employees on administrative leave until more

could be learned about the incident. The agency undertook an internal

investigation by the Office of Inspections which was an independent

office normally charged with more serious investigations instead of an

administrative investigation performed by management level employees

of the offices involved. The record reflects that the agency did this

to send a message that the agency would not tolerate violence in the

workplace. At the conclusion of the investigation 2 to 3 months after

the incident, the record reflects that both appellant and H were on

"flexi-place" allowing them both to work from home. There is also an

indication that H had made an application for retirement in September 1995

which was likely the basis for appellant's supervisor's representation to

her that H was not in work status and would not likely return to work.

There was no indication that H returned to the workplace at any time

before her disability retirement was approved in August 1996.

Although this circumstance was not based on an affirmative action by the

agency, it was a consideration of the agency when deciding what actions

to take.

Furthermore, the agency's reliance on the apparent absence of H from

the workplace was reasonable considering the surrounding facts of the

incident. Here, the AJ credited appellant's testimony that an assault

took place, but there was some doubt about the severity of the touching

that occurred because there was no physical evidence of an assault even

though H apparently had long nails and had allegedly grabbed appellant

by the throat. Moreover, appellant did not seek medical treatment

for any injuries and she continued with her work with a taxpayer after

the confrontation.

We cannot agree with appellant that the law required the agency to take

more aggressive steps to ensure her safety such as changing the locks

at the office, terminating H and providing appellant with an escort to

and from the parking lot. We think appellant was unreasonable in her

demands given the facts of this case which she stated would not have

been satisfied even by transferring H to another office within the San

Jose district.<1>

Therefore, after a careful review of the record, including appellant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final decision as clarified herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

9/20/99

DATE Carlton A. Hadden, Acting Director

Office of Federal Operations1The agency determined

that an involuntary reassignment was not available

as a substitute for disciplinary action and

especially because no disciplinary action could

be taken without confirming an assault.