0120092600
10-22-2009
N. Ridgway V. Wise, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
N. Ridgway V. Wise,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120092600
Hearing No. 570-2008-00187X
Agency No. DOS-F-027-07
DECISION
On June 2, 2009, complainant filed an appeal from an April 28, 2009
final order by the agency 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). The Commission affirms the agency's final order.
At the relevant time, complainant held an Office Management Specialist
assignment at Embassy Prague of the agency. She began her assignment in
October 2005. Subsequently, complainant filed a formal EEO complaint
alleging that the agency discriminated against her on the bases of sex
(female), disability (leg impairment), and age (over 40) when management
subjected her to hostile work environment harassment by, but not limited
to, threats, demeaning comments, ultimatums, exclusion from meetings,
inadequate housing, denial of overtime, and forced curtailment of her
assignment without an onward assignment.1
The agency conducted an investigation of complainant's harassment claim.
During said investigation, complainant's then-supervisor (S1) stated that
the essential functions of complainant's position required her to manage
the front office area, and escort visitors and pick up mail occasionally.
He stated that complainant had some difficulty climbing stairs, but did
not inform him of such before her arrival to post so that he could make
appropriate accommodations beforehand. Further, S1 stated that he did
not threaten, demean, or give an ultimatum to complainant; but that he
suggested she consider "curtailing" to another assignment due to her
job inadequacies (trouble handling the front office). S1 stated that he
counseled complainant about establishing relationships with other offices
in the Embassy so that she could keep him apprised of important matters,
because she failed to do so. Further, S1 stated that he did not seek
to keep complainant out of meetings but rather to ensure adequate front
office coverage, and that he did not discuss overtime with complainant.
A subsequent supervisor (S2) stated that management made adjustments to
complainant's duties due to her difficulty climbing stars. He indicated
that colleagues assisted with tasks. S2 stated that the agency initially
planned to "curtail" complainant effective February 28, 2006, but allowed
her an additional two weeks to obtain another assignment. S2 stated
that complainant was sent to Washington when she did not get another
assignment. Further, S2 stated that he was chair of the Embassy Housing
Board (Board) to which complainant requested a new housing assignment,
citing traffic noise and vibration. He noted that, prior to her post
arrival, complainant completed a housing questionnaire on which she
failed to indicate sensitivity to loud noise or vibration, thereby,
preventing the Board from providing her appropriate housing initially.
S2 added that the Board gave complainant temporary housing following her
request and she left Embassy Prague before receiving permanent housing.
Following its investigation, the agency informed complainant of the
right to request a hearing before an EEOC Administrative Judge (AJ)
or an immediate final agency decision. Complainant requested a hearing.
Without a hearing, the assigned AJ found no discrimination. Specifically,
the AJ found that complainant failed to establish that the agency's
actions rose to the level of a hostile work environment and were based on
impermissible motives, or that the legitimate, nondiscriminatory reasons
articulated by the agency were pretext. Subsequently, the agency issued
a final order fully implementing the AJ's finding of no discrimination.
The instant appeal from complainant followed, without substantive
comment.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
As an initial matter, we find no genuine issue of material fact exists.
Hence, we find the issuance of a decision without a hearing on this
record appropriate. See 29 C.F.R. � 1614.109(g)(3).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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 must be determined
by looking at all 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. See Harris v. Forklift
Systems, 510 U.S. 17 (1993).
Here, complainant alleges that she was subjected to a hostile work
environment shortly after she arrived to a new foreign assignment that
resulted ultimately in her curtailment five months later. However,
we find that complainant failed to show that the agency's actions were
based on her statutorily protected classes. 2 See Humphrey v. United
States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998).
We discern no basis to disturb the AJ's decision and we AFFIRM the
agency's 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
October 22, 2009
__________________
Date
1 Initially, complainant alleged two additional claims (regarding Class
5 medical clearance and prohibiting an onward assignment), but later
withdrew those in a letter dated July 3, 2007.
2For the purpose of this decision, we assume without finding that
complainant is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).
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0120092600
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092600