01A14560
03-27-2003
Shari Ungar, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Shari Ungar v. Department of the Treasury
01A14560
March 27, 2003
.
Shari Ungar,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14560
Agency No. TD97-3279
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirm the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a GS-1169-11 Revenue Officer at the agency's Jersey City, New Jersey
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on August 20, 1997, alleging that she was discriminated
against on the bases of sex (female), disability (depression), and
reprisal for prior EEO activity when:
(1) on April 8, 1997, her Group Manager sexually harassed her, and on
May 12, 1997, he verbally assaulted her;
in May 1997, she was subjected to a pattern of harassment in the form of
a hostile work environment because of her disability and participation
in prior protected activity.<1>
The agency accepted the complaint for investigation. At the conclusion
of the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision. On January 15, 2001, the agency issued its
final decision concluding that complainant was not discriminated against.
It is from this final decision that complainant now appeals.
In order to establish a claim of harassment, complainant must show that:
(1) she belongs to the statutorily protected classes and/or engaged in
prior EEO activity; (2) she was subjected to unwelcome conduct related
to her membership in those classes and her prior EEO activity; (3) the
harassment complained of was based on sex, disability and/or 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); see also Flowers v. Southern Reg'l Physician
Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp.,
247 F.3d 169 (4th Cir. 2001). It is 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) (citing
Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Drake v. Minnesota
Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)). 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).
Claim (1)
Complainant alleged that on April 8, 1997, her Group Manager touched
the inside of a blouse which was hanging outside her cubicle and said
�just knowing what was in there turns me on.� Based upon this comment,
complainant alleged the she was sexually harassed. The Group Manager
denies making the comment. There were no witnesses to the comment.
The preponderance of the evidence does not establish that the Group
Manager made the April 8, 1997, statement. The only evidence that the
Group Manager made the statement is complainant's assertion that he did;
and the Group Manager's assertion that he did not.
Separately, on May 12, 1997, complainant entered the Group Manager's
office to discuss the preparation of a form. The conversation escalated,
resulting in a vulgar exchange between complainant and the Group
Manager. It appears that complainant and the Group Manager engaged
in a conversation which began with a discussion about the preparation
of a form, and ended with the Group Manager and complainant exchanging
vulgar insults. Regarding this unfortunate conversation, we find that
complainant has failed to demonstrate that the confrontation occurred
�because of sex� i.e., because complainant is female. The comments
which complainant attributes to the Group Manager are not sex-specific.
Rather, the Group Manager's comments appear to have been made in direct
response to equally vulgar language made by complainant.
Claim (2)
Complainant alleged that in May 1997, she was subjected to a pattern
of harassment in the form of a hostile work environment because of her
disability and participation in prior protected activity. For the
purposes of this analysis we have assumed, without finding, that
complainant is an individual with a disability under the Rehabilitation
Act. Complainant alleged, inter alia, that her depression was
characterized as a matter of character, a co-worker was told not to
speak with her, a co-worker was told that she was likely at home in a
fetal position, she was told to concentrate on getting better, and not
on getting a promotion, she was told that she would be supervised while
performing a detail, and her travel plans had to be approved in advance.
Upon review of these claims, we find that the conduct complained of is not
sufficiently severe and/or pervasive as to constitute unlawful harassment.
Notably, hostile work environment harassment is actionable only if the
harassment to which complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of his employment. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
March 27, 2003
__________________
Date
1 Complainant also alleged that the agency
failed to make a needed accommodation for complainant's depression when
the agency allegedly denied her request for a flexible starting time. In
Shari Ungar v. Department of the Treasury, EEOC Appeal No. 01A14535 (March
10, 2003), the Commission affirmed the agency's finding that complainant
was not denied a reasonable accommodation with respect to her request for
a flexible starting time. As such, we will not address that issue here.