Nossie Cunningham, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01985949 (E.E.O.C. Feb. 4, 2000)

01985949

02-04-2000

Nossie Cunningham, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Nossie Cunningham v. Department of Agriculture

01985949

February 4, 2000

Nossie Cunningham, )

Complainant, )

) Appeal No. 01985949

v. ) Agency No. 951020

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the

agency concerning her claim that the agency violated Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<0> The

appeal is accepted by the Commission in accordance with the provisions

of EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the complainant has established that

she was discriminatorily harassed based on race (African American), color

(black), sex (female), and in retaliation for her prior EEO activity.

BACKGROUND

The complainant filed a formal complaint in October 1995 in which she

raised the issue set forth above. Following an investigation of the

complaint, the complainant did not request a hearing and the agency

thereafter issued a final decision (FAD) dated July 22, 1998, finding

no discrimination. It is from this decision that the complainant now

appeals.

During the period in question, the complainant was employed as a Computer

Specialist with the agency's Communication Technology Distance Education

Team. The complainant's harassment claim is comprised of three incidents

that occurred in September 1995, the first of which is an electronic-mail

(e-mail) message she received from her supervisor (the Responsible

Official, RO) on September 7, 1995. The e-mail pertained to an incident

which occurred earlier that day when the complainant, believing she had

been improperly excluded from a meeting in the RO's office, commented to

those present at the meeting that "everything was crappy." The e-mail

states that this outburst was "uncalled for and rude" and also expresses

concern about the complainant's unexplained absences from the office.<0>

The second incident the complainant cites is a Memorandum of Caution

(MOC) issued to her by the RO on September 27, 1995. The RO testified

that the purpose of the MOC was to address the complainant's behavior,

and it states, in relevant part:

I want to reiterate my goal of creating a harmonious working team

in Information Technology, dedicated to providing quality service to

our customers. Your outbursts in the office, tart exchanges with your

co-workers, rudeness, and open hostility are not conducive to building

a harmonious working team. I will expect you to display a spirit of

congeniality and teamwork in the coming weeks.

The final incident cited by the complainant occurred on September 27,

1995, when, upon returning to work after two days of sick leave, she

found that her possessions had been moved out of her office. There is

conflicting testimony regarding the reason for this, and the Acting

Deputy Administrator testified that it was because the complainant had

been detailed to another agency and left without taking her belongings.

The complainant disputes this, however, stating that her detail did

not occur until months later. According to the individual who shared

the office with the complainant, the reason the items were moved was

because of friction between her and the complainant that necessitated

one of them moving to a different office.

In arguing that the aforementioned incidents constituted harassment,

the complainant, in particular, disputes several of the things said in

the e-mail and the MOC. For example, she says that her comment regarding

the September 7, 1995, meeting was "this is really crappy" rather than

"everything is crappy." She also takes umbrage at the RO's use of the

term "disobey," arguing that it is "very racist" for a white male to say

that to an African American woman. As to the RO's observations in the

MOC regarding her attitude, the complainant testified that she comes to

work "to work" and that the government is not paying her to make friends.

ANALYSIS AND FINDINGS

It is well-settled that harassment based on an individual's race,

color, sex, and prior EEO activity is actionable. See Meritor Savings

Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim

of harassment under those bases, the complainant must show that: (1)

she belongs to the statutorily protected classes; (2) she was subjected

to unwelcome conduct related to her membership in those classes; (3) the

harassment complained of was based on race, color, sex, and her prior EEO

activity; (4) 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) there is a basis for

imputing liability to the employer. See Henson v. City of Dundee, 682

F.2d 897 (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). If the complainant satisfies

the five elements, then the agency is subject to vicarious liability

insofar as the harassment would have been "created by a supervisor with

immediate ... authority over the [complainant]." Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999), at 4 (citing Burlington Industries, Inc.,

v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998), and Faragher

v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<0>

We find, initially, that the complainant has not demonstrated that there

is a connection between the alleged harassment and her membership in the

protected groups. Not only was there nothing overtly discriminatory

about the three incidents in question, but it appears that there were

legitimate reasons for each of them.<0> Furthermore, we find that the

three incidents were not sufficiently severe or pervasive to the point

where they altered the complainant's employment and created an abusive

working environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 (1993). Accordingly, we find the complainant has not established

that she was discriminatorily harassed.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that she was discriminated against

as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

Feb. 4, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

01 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all Federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.

02 According to the e-mail, the meeting was impromptu and, as such,

the complainant was not intentionally excluded from it.

03 When the harassment does not result in a tangible employment

action, the agency can raise an affirmative defense to liability which

it can meet by demonstrating: (a) that it exercised reasonable care

to prevent and correct promptly any harassing behavior; and (b) that

the employee unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, at 12. This defense is not available when the

harassment results in a tangible employment action (e.g., a discharge,

demotion, or reassignment) being taken against the employee. Id. at 7.

04 In so concluding, the Commission is cognizant that there is

conflicting testimony regarding the removal of the complainant's work

possessions. There is nothing in the record, however, which indicates

that this action was discriminatory.