0120093527
01-15-2010
Theresa R. Harts, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Theresa R. Harts,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120093527
Hearing No. 461-2008-00061X
Agency No. CRSD200700305
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 24, 2009 final order concerning her equal
employment opportunity (EEO) complaint alleging 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), sex (female), religion (Baptist),
age (47), and reprisal for prior protected EEO activity under Title
VII when: 1) on October 12, 2006, she received an overall rating of
unsatisfactory for fiscal year 2006 and 2) on or about October 6,
2006, all GS-2210-9 IT Specialists were purportedly upgraded to GS-11,
but complainant was not promoted based on her "unsatisfactory" rating.
Complainant also alleged harassment when: 1) she was monitored daily
by employees within her division when going to the bathroom and while
performing her duties; 2) on January 10, 2007, during a meeting with her
supervisor regarding her progress in the Opportunity to Improve (OTI)
program, her supervisor allegedly stated "God does not exist." "God is
not present in the Government, USDA OCIO nor Information Technology,"
"Where is God's help with the OTI," "I do not want to talk any more
about religious junk," and asked her if she was some kind of MOJO; 3)
during the same meeting, complainant's supervisor did not want to discuss
the OTT evaluation with her, and wanted her to sign it even though she
did not agree with it; on December 29, 2006, she was placed on AWOL
status for pay period 25; on or about December 29, 2006, complainant's
supervisor continuously requested medical documentation from her, and
informed her that if she did not bring in the proper documentation,
she would be terminated in 15 days.
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 requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On June 16, 2009, the Administrative Judge (AJ) issued a summary decision
finding no discrimination. In reaching this decision, the AJ determined
that even if complainant could establish a prima facie case, the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
The AJ stated that while complainant repeatedly argued that she was
denied a promotion because of her rating, the evidence does not show
this to be true. No one in complainant's unit received a promotion
for the period in question. The AJ further stated that complainant's
unsatisfactory rating was justified and the record contains unrebutted
evidence citing specific detail from complainant's supervisor.
The AJ found that the events of which complainant complains, either
individually or collectively fail to rise to the level of unlawful
harassment protected by Title VII. Most importantly, there is no evidence
that any of the actions or decisions of agency management were motivated
by unlawful reasons. The monitoring of an employee's conduct in the
workplace, without more, while it may be annoying, is within the scope
of managerial authority. There is no evidence that any adverse action
arose from such monitoring. A supervisor's comments on one occasion in
a meeting to the effect that God is not present in the workplace, etc.,
is a mere utterance. It may be offensive to an employee, but does not
rise to the level of actionable harassment. The refusal of a supervisor
to discuss a performance appraisal or performance improvement plan in
a particular meeting likewise does not alter the terms and conditions
of employment. Concerning complainant's placement on AWOL status,
complainant did not dispute the fact that she was out sick and away
from the office between November 7 and December 29, 2006, that she
believed that after exhausting all of her sick leave, she could use
accrued annual leave, and that she was not terminated as a result of
her AWOL status or failure to submit medical documentation. The record
reflects that this was a simple misunderstanding on complainant's part.
There is no evidence to show that it was part of a pattern of unlawful
harassment. Complainant was not subjected to humiliation, physical
contact, or threats. Complainant failed to establish that any of
management's reasons for its actions were pretextual or unworthy of
belief. Complainant failed to establish discrimination under either
the theory of disparate treatment or unlawful harassment.
On appeal, complainant mainly asserts that she was routinely made to
endure unlawful harassment by her supervisor. She further asserts that
this purported, hostile work environment adversely affected her health.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), 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 all of her statutorily protected
classes, management continuously 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 classes, or the harassment complained of
was based on her statutorily protected classes. 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 agency management has taken 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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence 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
January 15, 2010
__________________
Date
2
0120093527
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093527