01986319
05-22-2000
Thelma Murray, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Thelma Murray v. Department of Agriculture
01986319
May 22, 2000
Thelma Murray, )
Complainant, )
) Appeal No. 01986319
v. ) Agency No. 951002
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
)
DECISION
INTRODUCTION
Thelma Murray (complainant) timely filed an appeal on August 17, 1998,
with the Equal Employment Opportunity Commission (the Commission) from
a final agency decision (FAD), mailed to complainant on August 11,
1998, concerning a complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq, and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission
hereby accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,
659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the bases of race (Black), color (Black),
national origin (Jamaican-Caribbean), sex (female), age (d.o.b.:
12/16/32), and reprisal (prior EEO complaints) when a senior official
made an allegedly discriminatory statement to her, and her coworkers
made harassing comments.
BACKGROUND
At the time of the alleged discrimination, complainant was employed by
the agency as a Secretary, GS-5. She filed a formal complaint alleging
discrimination on the bases of race (Black), color (Black), national
origin (Jamaican-Caribbean), sex (female), age (d.o.b.: 12/16/32),
and reprisal (prior EEO complaints) when: 1) she received a letter of
reprimand dated August 30, 1995;<2> 2) a senior official, S-1, made
an allegedly discriminatory statement to her; and 3) her coworkers
made harassing remarks about the circumstances surrounding the letter
of reprimand. The agency issued its FAD on June 15, 1998 finding no
discrimination. This appeal followed.
ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's race, color,
national origin, sex, age, and prior EEO activity is actionable. See
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment under those bases, the complainant
must show that: (1) she belongs to the statutorily protected classes and
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 race, color, national origin,
sex, age, and prior EEO activity; and (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.
In the case of harassment by a supervisor, complainant must also
show that there is a basis for imputing liability to the employer. 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 on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
If the complainant satisfies these five elements, then the agency is
subject to vicarious liability insofar as the harassment would have
been "created by a supervisor with immediate ... authority over the
[complainant]." Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999),
at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742,
118 S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<3>
In the case of harassment by coworkers, after complainant establishes
a prima facie case of harassment, an agency must show that it neither
knew or should have known about the harassment, and/or that it took
immediate and appropriate corrective action as soon as it was put on
notice of the harassment, 29 C.F.R. � 1604.11(d).
With respect to complainant's assertion, as embodied in claims (2) and
(3), that she was subjected to hostile work environment harassment, we
find under element (1) that complainant has established that she is a
member of the statutorily protected classes cited and that she engaged
in prior EEO activity.
With regard to elements (2) and (3), the Commission assumes arguendo
that the conduct in question was related to complainant's national
origin. The Commission finds that the conduct was not related to
complainant's race, color, age, gender, and/or prior EEO activity.
Complainant received a letter of reprimand, dated August 30, 1995, for
"Conduct Unbecoming a Federal Employee" because she failed to declare
prohibited items while entering the United States from Jamaica. In claim
(2), complainant claims that at the conclusion of a meeting with S-1,
regarding the letter of reprimand, S-1 stated, "You people from third
world countries always try to be smart." Complainant also contends, in
claim (3), that she subsequently became the target of harassing remarks
by her coworkers. She stated that everyone in her office knew of her
violation and called her "Thelma the smuggler." There is no conclusive
evidence in the record as to how complainant's coworkers learned of the
incident. These comments by complainant's coworkers do not implicate
the complainant's bases of race, color, gender, or prior EEO activity
because none of these comments are related to them. We find, therefore,
that complainant was not discriminated against on these bases.
As to complainant's claim of harassment based on national origin, we find
that she has not met the requirements of element (4) because she has not
shown that the one comment from S-1, and the comments from her coworkers
were "sufficiently severe [and] pervasive to alter the conditions of
[appellant's] employment and create an abusive working environment."
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find,
therefore, that complainant was not harassed based on her national origin.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
05-22-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2 Complainant requested, on three separate occasions, to have this
claim withdrawn from her complaint, once during the investigation of
her complaint, once during dispute resolution efforts, and once in her
statement on appeal to us. The agency, however, addressed this claim
in their FAD. Given complainant's requests to withdraw this claim,
we will not address it in our present decision, and will only address
complainant's second and third claims. With respect to those claims,
since complainant alleges, in claim (2), that she was harassed by S-1,
a senior official, and, in claim (3), that she was harassed by her
coworkers, we will consider both claims to be part of complainant's
overall allegation that she was subjected to a hostile work environment.
3 When the harassment does not result in a tangible employment action,
the agency can raise an affirmative defense to liability which it
can meet by demonstrating: (a) that it exercised reasonable care to
prevent and correct promptly any harassing behavior; and (b) that
the employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, at 12. This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or reassignment) being taken against the employee. Id. at 7.