Thuy-Ai T. Nguyen, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 20, 2009
0120090187 (E.E.O.C. Feb. 20, 2009)

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

2

0120090187

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

6

0120090187

7

0120090187