0120092379
10-22-2009
Seritta M. Bathanazas, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Seritta M. Bathanazas,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120092379
Hearing No. 530-2008-00422X
Agency No. 086300047
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 14, 2009 final decision concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant, a Field Representative, GS-0303-05, with the Philadelphia
Regional Office, alleged that the agency discriminated against her
on the basis of reprisal for prior protected EEO activity under the
Rehabilitation Act when: on December 14, 2007, her supervisor issued
her a letter claiming that she had been disrespectful and insubordinate.
In her pleadings, complainant explained that on August 24, 2007, while
assigned to work on the Current Population Survey (CPS), her primary
care physician placed her on medication due to elevated blood pressure
and provided her with a Doctor's Certificate advising her not to work
but to rest for a couple days. Complainant stated that she told her
supervisor about the Doctor's Certificate and her supervisor responded,
"Just take a pill and continue [to] work the cases." Complainant stated
that after August 24, 2007, she did not request any other accommodation
for her elevated blood pressure.
Complainant asserted that while working on CPS, she received CPS Daily
Receipts Logs, which provide a record of CPS cases she had turned in to
the Office. She further asserted that her supervisor used a formula
to obtain her daily rate and that according to her supervisor, her
Logs for the months of August through November indicated that she had
not met the goals established for those months. Complainant contended
that the Logs are not accurate and do not reflect her actual performance
during that period. Complainant stated that on December 11, 2007, her
team leader (immediate supervisor) informed her that she had received a
telephone call from complainant's supervisor regarding her failure to
meet her Sunday 15% or Monday 35% daily goals, and that she needed to
call her supervisor as soon as possible. Complainant stated she asked
her team leader to participate in a conference or three (3)-way call
with her supervisor because every month her supervisor called to say
that she was not meeting her goals when, in fact, she was meeting her
performance goals. Complainant stated that at approximately 10:45 a.m. on
that same day, she called her supervisor with her team leader listening
in the background, unbeknownst to her supervisor. Complainant admitted
that she became "loud'" during the conversation but claimed that so did
her supervisor. On December 12, 2007, complainant's supervisor issued
her a letter, claiming that she had been disrespectful and insubordinate
during their recent telephone conversation. Complainant asserted that
the information in the letter is not correct and she did not continue to
use an unprofessional and inappropriate tone as her supervisor claimed.
Complainant stated that she was issued the letter in retaliation for
requesting a reasonable accommodation in August 2007. Complainant
maintained that her supervisor's conduct in this matter subjected her
to a hostile work environment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant initially
requested a hearing within the time frame provided in 29 C.F.R. �
1614.108(f) but ultimately withdrew her hearing request.
In its final decision, the agency found no discrimination. The agency
determined that even if complainant could establish a prima facie case,
the agency had articulated legitimate, nondiscriminatory reasons for
its actions. The agency stated that complainant's supervisor issued the
December 14, 2007 letter because complainant had been unprofessional and
argumentative when she tried to discuss her performance with her. The
December 14, 2007 letter reflects this reason. Complainant's team leader,
who complainant included in the conversation, stated that complainant
was argumentative with and challenged her supervisor's instructions.
Complainant's team leader, in agreement with complainant's supervisor,
also stated that complainant was not meeting her performance goals and
was not using the correct equation for calculating her transmittal rates.
In conclusion, the agency found that the events of which complainant
complains, either individually or collectively fail to rise to the level
of unlawful harassment. Most importantly, there is no evidence that
any of the actions or decisions of agency management were motivated
by unlawful reasons. Complainant failed to establish that any of
management's reasons for its actions were pretextual or unworthy of
belief. Complainant submits no statement on appeal.
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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee's work performance. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: "Conduct that is not severe or pervasive enough to create an
objectively hostile work environment - an environment that a reasonable
person would find hostile or abusive - is beyond Title VII's purview."
Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) she belongs to a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on her 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. 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 at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, complainant asserted that based on her statutorily protected
class, her supervisor subjected her to a hostile work environment.
However, we find that complainant has not shown that she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
her protected class, or the harassment complained of was based on her
statutorily protected class. Further, complainant has not shown that
the purported harassment had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. While complainant has cited
various incidents where her supervisor has either inappropriately yelled
or took various actions that were either adverse or disruptive to her,
we find that complainant fails to show that these incidents were as a
result of unlawful discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
2
0120092379
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092379