Seritta M. Bathanazas, Complainant,v.Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.

Equal Employment Opportunity CommissionOct 22, 2009
0120092379 (E.E.O.C. Oct. 22, 2009)

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

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0120092379