Regina Pangelinan, Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionOct 29, 2004
01a44546 (E.E.O.C. Oct. 29, 2004)

01a44546

10-29-2004

Regina Pangelinan, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.


Regina Pangelinan v. Department of Homeland Security

01A44546

October 29, 2004

.

Regina Pangelinan,

Complainant,

v.

Thomas J. Ridge,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A44546

Agency No. I-03-W100

Hearing No. 370-04-00257X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that during the relevant period, complainant was

employed as an Immigration Inspector, GS-1816-7, at the agency's Bureau of

Customs and Border Protection, San Francisco International Airport in San

Francisco, California. Complainant filed a formal EEO complaint on May

30, 2003, alleging that the agency had discriminated against her on the

basis of sex (female) when since December 2002, she has been subjected

to a continuous pattern of harassment and a hostile work environment

by a co-worker; and that upon being so informed, agency management did

not take appropriate action.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). On March 18, 2004, the AJ issued a Notice of Intent to Issue

a Decision Without a Hearing, allowing the parties to file a written

response to the Notice. The record reveals that both parties responded.

In its Response, the agency argued that complainant failed to establish

a prima facie case of harassment based on her sex. The agency found

that complainant failed to establish that she had been subjected to a

hostile work environment, as the actions alleged fail to rise to the

level of actionable harassment under the regulations. The agency noted

that complainant outlined incidents of harassment that occurred between

August 2002 and April 2003, when the co-worker: (1) twice petitioned

to have her transferred; (2) once told her to clean the refrigerator

because it was a woman's job; (3) once asked her to cut bread because

�that's what wives are for;� (4) once told her she did not need to work

because she was rich; (5) once told co-workers she asked dumb questions;

and (6) once yelled at her, accusing her of talking about him. The agency

argued that the two alleged statements made by the co-worker (�a woman's

job� and �that's what wives are for�) were isolated comments and did

not amount to actionable hostile work environment based on her sex.

Furthermore, the agency argued that after complainant informed her

first level and second level supervisors that she determined that

a co-worker's behavior was unwelcome, management took immediate and

appropriate corrective action. The former Area Port Director stated that

in January 2003, she held a meeting with complainant and the co-worker

in an attempt to resolve complainant's issues. The former Area Port

Director stated that during the meeting, the co-worker apologized to

complainant for his actions; the parties concluded that complainant and

the co-worker should stay away from each other; complainant agreed to be

moved to the �G� side terminal away from the co-worker; and complainant

and the co-worker's shifts were �different, so they would not run into

each other.� Complainant's second-line supervisor (S2) stated that

management offered complainant the option to be temporarily transferred

to Terminal G �so she would not be working in what she perceived to be

a threatening work environment.�

With respect to complainant's claim that the co-worker harassed her again

after the January 2003 meeting, S2 stated that he offered complainant

�the option of going to mediation with [Agency Official] in the EEO

office, but she rejected that offer on May 5, 2003.� Furthermore, the

S2 stated that he felt that there was a �personality conflict� between

complainant and the co-worker.

On April 26, 2004, the AJ issued a decision without a hearing, finding

no discrimination. The AJ determined that the agency properly set forth

the undisputed facts and applicable law in its response to his Notice of

Intent to Issue a Decision Without a Hearing, incorporated the response in

his decision, and found no discrimination. The AJ found that complainant

had not established a claim of hostile work environment harassment.

The AJ also found that complainant had not established that she was

subjected to discriminatory conduct that was so severe or pervasive as

to alter the terms or conditions of her employment. Furthermore, the AJ

found that the agency took reasonable corrective action by separating

complainant and the co-worker's work assignments and assigning them to

different shift hours in order to minimize their interpersonal contact.

The agency implemented the AJ's decision in a final order dated May

21, 2004. It is this decision that is the subject of the instant appeal.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such

that a reasonable fact finder could find in favor of the non-moving

party. Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver

v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988).

A fact is "material" if it has the potential to affect the outcome

of a case. If a case can only be resolved by weighing conflicting

evidence, summary judgment is not appropriate. In the context of an

administrative proceeding, an AJ may properly consider summary judgment

only upon a determination that the record has been adequately developed

for summary disposition.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United

States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)

(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).

It is also well-settled that harassment based on an individual's prior

EEO activity is actionable. Roberts v. Department of Transportation,

EEOC Appeal No. 01970727 (September 15, 2000). 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 of Title VII must be determined by looking at all of

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. Harris v. Forklift Systems, Inc., 510

U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,

Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is

actionable only if the harassment to which the complainant has been

subjected was sufficiently severe or pervasive to alter the conditions

of the complainant's employment. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The harassers' 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).

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

is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57

(1986). In order to establish a claim of harassment under this basis,

the complainant must show that: (a) she belongs to the statutorily

protected class; (b) she was subjected to unwelcome conduct related to

her membership in that class; (c) the harassment complained of was based

on sex; (d) 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 (e) there is a basis for

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

682 F.2d 897 (11th Cir. 1982).

The record supports a determination that complainant has not established

that the incidents identified were sufficiently severe or pervasive to

affect complainant's work environment. See Bloomer v. Department of

Transportation, EEOC Petition No. 03980137 (October 8, 1999). Moreover,

the record reflects that complainant informed her first level and second

level supervisors that she determined that a co-worker's behavior was

unwelcome, and that the agency took immediate action to end the alleged

harassment.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected class.

Accordingly, the agency's final order implementing the AJ's finding of

no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 29, 2004

__________________

Date