0120120007
12-13-2012
Pamela J. Balazer, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Pamela J. Balazer,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120120007
Agency No. FS-2010-00738
DECISION
On September 27, 2011, Complainant filed an appeal from the Agency's July 26, 2011, final decision 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that she submitted a written request for a hearing to the EEOC or to the Agency; (2) whether the Agency properly subsumed claim 1 into a pending class complaint; and (3) whether Complainant established that the Agency discriminated against her in claim 2.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician (Fuels), GS-0462-09, at the Agency's Pacific Southwest Region (Region 5), Los Padres National Forest, Ecosystem Management Branch, Fuels Shop in Goleta, California. Complainant's First Level Supervisor was the Ecosystem Management Officer (S1 - female).
On October 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity (EEO complaints closed in 2003 and 2006) when:
1. On June 27, 2010, and other unspecified dates during the 2010 fire season, S1 denied her the opportunity to go on fire assignments, which hampered her career goals; and
2. On unspecified dates, S1 treated her disrespectfully and failed to respond to her communications in a timely manner.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The decision analyzed claims 1 and 2 under a disparate treatment framework. Initially, the decision found that Complainant established a prima facie case of sex discrimination but failed to establish a prima facie case of reprisal discrimination. Next, the decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the decision found that Complainant failed to establish pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that she had mailed her hearing request to the EEOC on April 26, 2011. Complainant submitted a copy of her election form dated April 26, 2011. In addition, Complainant argued that the Agency's decision erred in finding no discrimination. Complainant focused her argument on claim 1 and did not specifically address claim 2.
In opposition, the Agency argued that Complainant failed to provide evidence that she mailed her hearing request to the EEOC or to the Agency. In addition, the Agency argued that Complainant failed to establish that she was subjected to disparate treatment or harassment.
In a letter to the Commission dated July 10, 2012, the Agency determined that claim 1 was subsumed within a pending class complaint, Vercruysse v. U.S. Department of Agriculture, EEOC Hearing No. 550-2011-00548X,1 and would be held in abeyance pending an AJ's determination on class certification. The Agency submitted a copy of an April 18, 2012, order issued by the AJ in Vercruysse.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (EEO MD-110) (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").
Hearing Request
EEOC Regulation 29 C.F.R. � 1614.109(g) provides, in pertinent part, that a complainant may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the agency's acknowledgement letter. In addition, the regulation provides that a complainant shall send a copy of the request for a hearing to the agency EEO office.
Upon review, we find insufficient evidence that Complainant submitted a written request for a hearing to the EEOC or to the Agency. Complainant asserted that she mailed her request to the EEOC on April 26, 2011 and provided a copy of her election form dated April 26, 2011. The record, however, contains no evidence that the EEOC or the Agency received Complainant's election form. Moreover, Complainant provided no proof of mailing or delivery of the election form. Accordingly, we find that the Agency properly issued a final decision.
Claim 1
EEO MD-110, Chapter 8, � III.C provides, in pertinent part, that "[a]n individual complaint that is filed before or after the class complaint is filed and that comes within the definition of the class claim(s) ... will be subsumed within the class complaint."
In an order dated April 18, 2012, the AJ in Vercruysse stated, in pertinent part, the following:
(1) The time period for inclusion in the proposed class will be from July 11, 2009 ... to present. The proposed class will consist of female non-managerial current and former employees of Region 5 who from July 11, 2009 and ongoing have been denied career-enhancing details, training and assignments ... The individual EEO cases which should be subsumed into the class will include those claims in which a proposed class member contends that due to sex discrimination and/or to reprisal for previously complainant about sex discrimination, she has been denied a career-enhancing detail, training or assignment ....
Upon review of the record, we find that the Agency properly subsumed claim 1 within the Vercruysse class complaint. Specifically, the record reflects that Complainant was a female non-managerial employee of Region 5. In addition, the record reflects that Complainant alleged that she was discriminated against on the basis of sex and reprisal for prior protected EEO activity when, during the 2010 fire season, she was denied career-enhancing fire assignments. Accordingly, we VACATE the Agency's final decision with respect to claim 1 and REMAND claim 1 to the Agency to be held in abeyance pending the outcome of the class certification issue in Vercruysse.
Claim 2
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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; 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). Further, the incidents must have been "sufficiently severe or 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). 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 at 6 (Mar. 8, 1994). Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include 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. Harris, 510 U.S. at 23.
When asked by the EEO Investigator to describe S1's actions and provide the dates the incidents occurred, Complainant averred that S1 "shows disrespect and harsh treatment" for her. In addition, Complainant averred that S1 "repeatedly and constantly treated [her] with disrespect from May 5, 2009 to this date." Further, as evidence of the "level of disrespect" shown by S1, Complainant cited the following February 12, 2010 email she and a co-worker received from S1:
You both are directed to work separately. No OT or comp time will be authorized. You are to work efficiently and I expect you to work 8 hours a day at your respective duty stations. You are not to call the Regional Office. You are to coordinate with each other only as necessary to get the work completed. I know you have already spent much of Wednesday working on the . . . project and I know that there is an electronic map already available. This indicates to me that this assignment will be straight forward. Again, if you need answers work directly with the POC, [named employee]. He may direct you to other forest contacts. I will leave that up to his discretion.
Finally, Complainant averred that S1 "has ignored repeated emails" from her.
Upon review of the record, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the actions, taken as a whole, were sufficiently severe or pervasive to create a hostile or abusive work environment. Although the EEO Investigator asked her to describe specific incidents and provide specific dates, Complainant testified with minimal specificity about S1's conduct. We find that S1's conduct, as described above by Complainant, did not rise to the level of harassment. Accordingly, we AFFIRM the Agency's finding of no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision with respect to claim 1, REMAND claim 1 to the Agency to be held in abeyance pending the outcome of the class certification issue in Vercruysse, and AFFIRM the Agency's finding of no discrimination with respect to claim 2.
ORDER
The Agency is ORDERED to hold claim 1 in abeyance during the pendency of the decision to accept or reject the Vercruysse class complaint. If the class complaint is rejected, the Agency shall resume processing of claim 1 as an individual complaint under 29 C.F.R. Part 1614 and shall issue a new final decision for claim 1, together with the appropriate appeal rights, within ninety (90) calendar days of the date the class certification decision becomes final, unless the matter is otherwise resolved prior to that time. The Agency shall submit a compliance report, with a copy to Complainant, as outlined below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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
___12/13/12_______________
Date
1 According to the Commission's case tracking system, the class complaint is still pending.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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