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.