0120090187
02-20-2009
Thuy-Ai T. Nguyen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Thuy-Ai T. Nguyen,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120090187
Hearing No. 531-2007-00059X
Agency No. IRS062013
DECISION
On October 9, 2008, complainant filed an appeal from the agency's
September 9, 2008 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Information Technology Specialist, GS-12, in the Product Assurance
Division of the agency's Modernization & Information Technology Services
(MITS).
In 2005, complainant engaged in prior protected EEO activity when she
filed an EEO complaint in which she alleged that she was subjected to
discrimination by her first-line supervisor. Subsequently, complainant
and the agency entered into a settlement agreement for the issues raised
in the complaint.
In July 2005, complainant was assigned a new supervisor. That month,
the new supervisor (S1) met with complainant to discuss her assignments
and milestones. S1 told complainant that he was cancelling her upcoming
week-long training due to workload issues. Complainant then told S1
that she was having childcare issues, and requested that she be allowed
to use annual leave for the week she was supposed to have training.
S1 approved her request.
Throughout August 2005, complainant had trouble finding childcare for
her daughter. S1 allowed complainant to use leave on thirteen occasions
during that month. During that time, S1 had to reassign complainant's
work to other employees in the office.
On August 21, 2005, complainant requested extended leave and placement
in part-time status. S1 informed complainant that he could not place her
in part-time status because the workload was not conducive to a part-time
schedule, and that no one in the office was permitted to work part-time.
On or about August 22, 2005, complainant submitted a Family and Medical
Leave Act (FMLA) request to take care of her child from September 6,
2005, through September 8, 2005. Complainant stated that she needed
FMLA leave so that she could take actions to secure placement in a school
for her daughter.
On August 29, 2005, complainant had a meeting with her first and
second-line supervisors (S1 and S2) to discuss her childcare issues and
need for extended leave. Complainant alleges that during the meeting S2
raised her voice and "clapped her hands" toward complainant. However,
the EEOC Administrative Judge (AJ) found the supervisors' allegations
to be more credible. Specifically, according to the supervisors, when
they again denied complainant's request to work part-time, complainant
became upset, raised her voice, and became disrespectful.
On August 31, 2005, complainant's third line supervisor (S3) also denied
her request to work part-time. However, S3 approved two weeks of leave
for complainant so she could secure suitable child care arrangements for
her daughter. S3 testified that 27 hours of leave was approved for FMLA
leave, even though he was only supposed to approve 24 hours of FMLA leave
per FMLA regulations. Complainant was approved for leave-without-pay
for the remaining time.
On September 5, 2005, which was Labor Day, complainant was in
leave-without-pay status and was not paid for the holiday. On October
10, 2005, complainant was also in leave-without-pay status and again was
not paid for the Columbus Day holiday. S1 misunderstood the eligibility
requirements for holiday pay and believed that employees had to be in
pay status to receive holiday pay. Once these errors were caught they
were soon corrected by S1.
On September 14, 2005, complainant requested FMLA leave from September 19,
2005, through November 19, 2005, for the purpose of taking care of her
mother. The agency notified complainant that it was reviewing her FMLA
request and requested that her mother complete the Federal Occupational
Health (FOH) authorization disclosure form. Complainant refused to submit
the paperwork. On September 26, 2005, the agency's FOH physician stated
there was insufficient medical documentation to approve the FMLA leave
request for a two-month period.
On November 7, 2005, the FOH physician notified the agency that
complainant was entitled to FMLA leave. As a result, her FMLA request
was approved retroactively to September 16, 2005. Complainant returned
to work on December 19, 2005.
In January 2006, complainant inquired about a detail position to another
office. The record reveals that no formal detail position existed, but
the manager in the other office was interested in complainant working for
his office. Complainant alleges that S3 disclosed her EEO activity to the
upper-level management in that office. Complainant ultimately did not
receive this detail because S3 did not want to continue to be responsible
for paying her salary if she were going to be working in another office.
In June 2006, another detail opportunity in a different division arose.
S3 assisted her in getting that detail, which resulted in complainant
obtaining a permanent position with that division.
Complainant filed a formal complaint of discrimination on the basis of
reprisal for prior protected EEO activity when:
1. On August 29, 2005, she was denied the use of available annual leave
or sick leave to take care of her child;
2. Her manager (S2) raised her voice and clapped her hands towards her;
3. On September 5, 2005, she was denied the opportunity to receive
holiday pay for the Labor Day holiday;
4. On September 27, 2005, and until November 9, 2005, she was denied
the use of leave under the Family Medical Leave Act;
5. On October 10, 2005, she was denied the opportunity to receive holiday
pay for the Columbus Day holiday; and
6. On January 20, 2006, information about her EEO activity was disclosed
by the Director of the Product Assurance Division (S3).
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 timely
requested a hearing, which was held August 7, 2007. The AJ issued a
decision on September 4, 2008. The AJ found that complainant failed
to establish that she was harassed. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged. Complainant now
appeals to the Commission.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's conclusions of law were not erroneous.
To establish a claim of harassment based on reprisal, complainant must
show that: (1) she is a member of the 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 the statutorily protected class; and (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.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. 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). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). 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 AJ found that complainant failed to adequately show she was subjected
to harassment that was sufficiently severe or pervasive to alter the
conditions of her employment. The Commission finds that there was
substantial evidence in the record and in the form of witness testimony
at the hearing to support the AJ's findings. Specifically, complainant
not only was allowed to use leave to find suitable childcare for her
daughter, but she was granted liberal use of leave, and in some instances,
more leave than she was entitled to take. Complainant was allowed to use
her annual leave, sick leave, FMLA leave, and leave-without-pay between
August and December 2005. Complainant's third line supervisor, S3,
approved her for 27 hours of FMLA leave, when the regulation only allowed
24 hours of sick leave be used at a time. The AJ found that complainant's
allegation that her manager (S2) raised her voice and clapped her hands
was not credible. Further, the denial of complainant's holiday pay was
an error made by an inexperienced supervisor who ultimately corrected the
mistake when it was brought to his attention. Further, no one was able
to testify with certainty about who disclosed complainant's EEO activity,
and the record supported the AJ's finding that the disclosure had no
bearing on the decision not to detail complainant to another office.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision because a preponderance of the evidence of the record
does not establish that discrimination occurred as alleged.
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
February 20, 2009
Date
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0120090187
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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