01975494
09-24-1999
Sharon E. Head, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Sharon E. Head, )
Appellant, )
) Appeal No. 01975494
v. ) Agency No. FW 94 35
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (White), sex (female), and reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. Appellant alleges she was discriminated against
when: (1) on March 22, 1994, her supervisors harassed her during a
meeting about her work performance, maintenance of office supplies at
her desk and the use of the telephone, and refused to permit her to have
union representation; (2) her supervisor gave her a poor Progress Review
and did not rate her on two elements shortly after she spoke with an
EEO Counselor; and (3) as of July 28, 1994, appellant has not received
the Work Improvement Plan (WIP), that she requested.<1> The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, appellant was
employed as a Office Automation Clerk GS-4, at the agency's Dallas,
Texas office. Appellant alleged she was harassed by her second
line supervisor (S1) during a meeting when she was questioned about
her job performance. She maintained that prior to the meeting she
had not been told by her supervisor (S2) that her performance was
unsatisfactory. Believing she was a victim of discrimination, appellant
sought EEO counseling and, subsequently, filed a complaint on June 29,
1994. At the conclusion of the investigation, appellant requested that
the agency issue a FAD.
The FAD concluded that appellant was not subjected to unlawful employment
discrimination. The FAD held that appellant failed to establish a prima
facie case of discrimination based on her race and sex because she
did not demonstrate that similarly situated employees not of her race
and sex were treated differently. The FAD held that even if appellant
had established a prima facie case, the agency had provided legitimate
nondiscriminatory reasons for its actions, namely that appellant was
not harassed when a union representative was not allowed to attend
the meeting because the meeting was not regarding appellant's conduct
but was about her performance. The FAD also indicated that the union
representative's presence was opposed because he had established a history
of being verbally abusive to S1. The FAD concluded that appellant was not
harassed when she was questioned about her job responsibilities during
the meeting. The FAD held that appellant did not present any evidence
that S1's behavior was unreasonable or sufficiently severe
and pervasive to create a hostile working environment. Additionally,
the FAD held that there was no discriminatory intent with respect to the
allegation that S2 failed to provide appellant with a WIP when requested.
On appeal, appellant restates her allegations. The agency requests that
we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency's findings that appellant
failed to establish a prima facie case of discrimination based on race and
sex because she failed to demonstrate that similarly situated individuals
were treated differently. Moreover, we find that had appellant
established a prima facie case, the facts do not support appellant's
allegation of harassment. As to the issue of reprisal however, we find
that contrary to the FAD, appellant did establish a prima facie case of
reprisal with regard to her Progress Report. We note that after appellant
spoke to an EEO Counselor, she received a Poor Progress review. The agency
does not challenge appellant's statement regarding her EEO activity and
given the proximity in time of the Progress Review to the EEO activity,
we conclude that the required nexus is established, and that appellant has
shown a prima facie case of reprisal. See Hochstadt, supra. Nevertheless,
the Commission finds, that appellant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were
a pretext for discrimination. The agency contends that appellant was
not rated on two elements because she no longer performed those duties
and she was rated marginal on the remaining elements because she was
not performing her remaining duties satisfactorily. We also agree that
appellant did not present any evidence that showed that her failure to
receive a WIP was motivated by discriminatory animus towards her race,
sex or reprisal. Furthermore, we agree with the FAD and find that
appellant's allegations regarding her denial of promotions in 1991,
and reprisal for union related activity were properly dismissed.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant also alleged that: she was denied promotions; she was given an
unfavorable Progress Review after speaking with an EEO Counselor; and that
she was not allowed to work credit hours after an Unfair Labor Practice
(ULP) charge was filed on her behalf. The FAD dismissed appellant's
allegation regarding denial of promotions in 1991, because she failed to
contact an EEO Counselor until May 1994, which is well beyond the 45 day
time allowance. The FAD also dismissed appellant's allegation regarding
her Progress Review, as it was considered a proposed action. Additionally,
the FAD dismissed appellant's allegation of retaliation following the
filing of a ULP charge, because the EEO statutes do not cover retaliation
for union related activity.