Tracy Coenen, Complainant,v.Lawrence Summers, Secretary, Department of Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01972865 (E.E.O.C. May. 22, 2000)

01972865

05-22-2000

Tracy Coenen, Complainant, v. Lawrence Summers, Secretary, Department of Treasury (Internal Revenue Service), Agency.


Tracy Coenen v. Department of Treasury

01972865

May 22, 2000

Tracy Coenen, )

Complainant, )

) Appeal No. 01972865

v. ) Agency No. 96-3057

) EEOC No. 260-96-8076X

Lawrence Summers, )

Secretary, )

Department of Treasury )

(Internal Revenue Service), )

Agency. )

____________________________________)

DECISION

Complainant timely appealed the agency's final decision that it had not

discriminated against her in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts

this appeal in accordance with EEOC Order No. 960.001.<1>

Complainant filed a formal complaint of discrimination in which she

claimed: (1) as a result of sex discrimination and sexual harassment

she was subjected to a hostile work environment which resulted in her

constructive discharge on September 1, 1995; and (2) she was subjected to

discrimination on the basis of reprisal (prior EEO activity) when, after

her resignation, management opposed her claim for unemployment benefits.

The agency accepted the complaint and conducted an investigation. At the

conclusion of the investigation, complainant requested a hearing before

an Equal Employment Opportunity Commission administrative judge (AJ).

A hearing was conducted on August 13, 1995.

On November 13, 1996, the AJ issued a recommended decision (RD) finding

no discrimination. The AJ concluded that complainant had not shown

that her work environment was hostile based on sex despite the fact

that she found that, "the evidence was uncontradicted that vulgar,

inappropriate comments were made which contained references to sex."

Furthermore, the AJ found that complainant was neither discriminated

against nor harassed because of her sex, in that she failed to prove

that she was treated unlike any other agent. Instead, the AJ found

that complainant's employment with the agency was not "a good fit".

The AJ noted that complainant's credibility was put into question by the

testimony of all witnesses, with the exception of three Special Agents who

testified as to offensive comments and rumors which they had witnessed.

The AJ found that complainant was not forced to resign, rather she was

given the opportunity to transfer to another location when she ultimately

offered her resignation. Finally, the AJ found that complainant was not

subjected to reprisal when her unemployment benefits were denied. In sum,

the AJ found that complainant was not discriminated against, as alleged.

The record reveals complainant began working as a Special Agent at the

Milwaukee Criminal Investigation Division, Internal Revenue Service, on

May 15, 1995. On May 19, 1995, complainant attended a meeting which was

conducted by the Group Manager (GM1)(male), who was also the individual

to whom complainant reported while assigned to Milwaukee. During the

meeting a Special Agent (SA1) used to the term "mental masturbation"

when describing a particular task which was being discussed. Complainant

testified she was offended by the remark, but as a brand new employee,

did not feel comfortable complaining. However, GM1 testified that he

noticed by the expression on complainant's face that she was uncomfortable

with the remark and instructed SA1 not to make any other remarks which

could be construed as offensive. Complainant testified that after the

meeting, she spoke with two other female Special Agents (SA2 and SA3)

who told complainant that similar comments have been made in the past.

Complainant testified that three days later, she spoke with another

Special Agent (SA4)(male) about the comment made at the meeting.

She testified that he told her that there was joking amongst the agents

and she should not get offended. Furthermore, complainant alleged that

SA4 stated that she would probably get sexually harassed while working

at the facility and he did not care how she felt about that.

The next incident complainant testified she found offensive occurred

during a May 23, 1995, firearms qualification training. The training

was conducted by a Special Agent (male)(SA5). Complainant was at the

training to observe only. During the training, she alleged that SA5

stated that we should see what "these limp d--ks could do", and also

remarked that a group of male agents were acting "like a bunch of girls."

She also alleged that SA5 made other sexually explicit comments but could

not recall them specifically. Complainant alleged that GM1 and another

Group Manager (GM2)(male) were present during the training, but did not

tell SA5 that the comments were not appropriate. Complainant alleged

that SA5 was primarily responsible for making her feel that women were

inferior to men on the firing range. Complainant did not complain to

management at this or any other time, about the comments or her feelings

regarding SA5's treatment of women on the firing range.

Complainant testified that rumors circulated about her which were based

on her sex, and constituted harassment. Specifically, complainant alleged

that it was rumored that complainant, rather than be outside in the rain,

had left firearms qualification so that she would not get her hair wet.

Furthermore, complainant alleged that rumors circulated that she had

needed ice for a broken nail which she incurred during defensive tactics

training on that same day. Complainant testified that the Special

Agent who gave her the ice for her fingernail insisted that complainant

needed ice for the fingernail. She testified that this brought unwanted,

excessive and undue attention to her by loudly stating that she needed

ice for her broken fingernail. Other rumors circulated regarding the

fact that complainant requested a visually-impaired individual to carry

a 19 pound copier machine out to her car for her.

The agency responded to the comments made by SA5 at the firing range

through the testimony of GM1, who stated that he did not hear the

comments, but alluded to the possibility that they were the type of

comments generally made by SA5. GM1 also testified that he had heard the

aforementioned rumors about complainant, as well as heard that complainant

demonstrated the attitude that she did not need to do certain work, or

that certain work was beneath her. Specifically, he testified that he

had engaged in a conversation with complainant during which complainant

had expressed an opinion that she did not need to work law enforcement

availability pay, which is work beyond the normal 40 hours. GM1 got the

impression that by complainant discussing the matter with himself as well

as with GM2, she was trying to pin one manager against the other over

the matter. GM1 also testified that he had received a phone call from

another Special Agent (female) regarding complainant's work performance.

Specifically, the complaints were that complainant took excessive breaks,

came to work late, and left work early. Thereafter, he discussed the

matter with complainant in a counseling session.

On or about June 16, 1995, complainant met with the Chief of the

Criminal Investigative Division (Chief)(male) for a counseling session.

Complainant testified that during that conversation, the Chief told

her that he had heard the rumors about complainant not attending

firearms training in the rain and the fingernail incident. The Chief

also testified that prior to the discussion with complainant, he had

spoken with GM1 and GM2 as well as the Branch Chief, about complainant's

attitude, which he said had been described as arrogant and flippant.

Complainant told the Chief that these stories were not true and that

rumors were being spread about her. Complainant testified that this was

all very unsettling for her and she was concerned that it was going to

ruin her reputation, and tarnish her ability to perform duties with the

other special agents.

According to complainant, during the meeting the Chief also stated that,

"we do not like feminist attitudes", did not like "wimpy females",

and that the female agents must "carry their own weight." Complainant

testified that these comments made her believe that the Chief believed

the rumors which were being spread about her, which made her feel

helpless and discouraged. In his testimony, the Chief denied making

these remarks and testified that he held the counseling session because

of the aforementioned complaints about complainant's attitude.

During other conversations with GM2, complainant later learned that the

second phase of her training was going to be delayed because of problems

she was having in Milwaukee. She believed she was being punished for her

feminist attitude, and also believed that the Chief's reminder that she

was a probationary employee was a threat because of her feminist attitude.

Complainant testified that she basically dreaded going into work because

of the sexual and gender harassment.

Complainant also testified that during numerous conversations with

SA2, she learned that the female agents who had sex with the male

agents seemed to be more successful in promotions and job assignments.

Complainant then testified that she was becoming aware that she may be

approached by a male agent for requests for sexual favors.

Therefore, on or about August 23, 1995, she went into the Chief's office

to offer her resignation. Complainant testified that although the Chief

made offers to complainant such as transferring to Madison or Iowa, she

did not think the offers were feasible since she was in school at the

time in Milwaukee. Complainant requested her complete drop file from

the Chief, as she believed false memos about herself were contained in

the file. On September 5, 1995, she presented a letter of resignation

to the Branch Chief who gave her a letter which stated that in exchange

for her resignation and a promise not to file a complaint against the

agency, complainant's drop file would be destroyed.

On October 10, 1995, complainant contacted an EEO counselor for the

subject complaint. She testified that she filed for unemployment

compensation on October 22, 1995. On November 9, 1995, complainant

received a letter notifying her that her claim for unemployment

compensation had been denied because she had not substantiated her claim

of harassment. Complainant testified that she believed the agency's

contest of the unemployment compensation claim was in reprisal for filing

the subject complaint.

On January 13, 1997, the agency issued a final decision adopting the AJ's

finding of no discrimination. It is from this decision that complainant

now appeals.

On appeal, complainant argues that the AJ erred in not permitting the

testimony of SA5 at the hearing. SA5 completed an affidavit which is

in the investigative file. The basis for the AJ's decision to deny

complainant's motion to have SA5 testify at the hearing is not contained

in the record, as this determination was conducted telephonically.

As such, we are unable to determine the AJ's reasoning for her decision.

For this reason, and because we find the alleged harasser's testimony

was relevant to the proceedings, we have assumed that the statements he

made are as complainant alleged.

Complainant also argues on appeal that the AJ failed to examine the

atmosphere as a whole when she found complainant was not subjected

to a hostile work environment. Specifically, complainant argued that

testimony at the hearing revealed that she had worked in an atmosphere

"where women are degraded and subjected to a constant barrage of unwelcome

sexual comments, actions and visuals." Specifically, complainant points

to the testimony of SA2 and other female Special Agents who testified that

they have personally witnessed other Special Agents, specifically SA5, who

have made vulgar comments in the workplace. For instance, SA2 testified

that during a meeting, SA5 remarked that the new Branch Chief got to her

position because she engaged in oral sex; SA5 had called women "hosettes";

SA5 compared women's breast sizes, SA5 referred to the female agents as

"ignorant sluts", as well as other comments. SA2 testified that she spoke

with complainant about the atmosphere in the office on numerous occasions.

Complainant testified that she considered the stories when she decided

she needed to resign. However, the record is clear that complainant

did not complain to management regarding the conduct she witnessed,

although other special agents had. The record also reveals that SA5,

who primarily was alleged to have made the aforementioned comments,

was counseled and disciplined for his conduct.

While the Commission does not condone the use of vulgar language in

the workplace, and would encourage all supervisors to take steps to

insure that their areas of supervision are free from such offensive

behavior, the Commission does not find that the actions which complainant

complained of herein constitutes sexual harassment within the meaning

of the Commission's regulations and applicable case law.

The record is clear that the only conduct complainant actually witnessed

was the "mental masturbation" comment at the meeting, as well as the

comments made by SA5 at the firing range. Although complainant claims

to have heard other comments, she could not recall them specifically, or

name the individual who made the comments. GM1 testified that he spoke

with the individual who made the comment at the meeting, and instructed

him not to make comments which could be construed as inappropriate in

the future. With respect to this comment, as well as those made by SA5

on the firing range, taken as a whole, we do not find that the conduct

complainant witnessed was of a sexual nature, or was severe or pervasive

enough to constitute sexual harassment. Furthermore, we find that the

conduct testified to by the other female Special Agents, though relevant,

was not part of the atmosphere which complainant observed, and therefore,

the AJ properly determined that complainant had not been subjected to a

hostile work environment. Indeed, complainant testified that she did not

have that much contact with SA5, except while she was on the firing range.

With respect to the rumors which circulated regarding complainant, we also

find insufficient evidence that she was harassed or treated differently

because of her sex. We note that the AJ found complainant's testimony

was not credible in this regard. We note that credibility determinations

of the AJ are entitled to deference due to the AJ's first-hand knowledge,

through personal observation, of the demeanor and conduct of the witnesses

at the hearing. Esquer v. United States Postal Service, EEOC Request

No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,

EEOC Request No. 05900589 (July 26, 1990).

With respect to complainant's claim of constructive discharge, we agree

with the AJ that complainant failed to show that the agency's conduct was

so intolerable that a reasonable person would have been forced to resign.

See Baker v. United States Postal Service, EEOC Request No. 05920128

(April 14, 1992). Although complainant witnessed inappropriate statements

made at the workplace, there was no evidence that she was subjected to

unwelcome touching, sexual advances, requests for sexual favors, or any

other discrimination based on her sex. We note again that complainant

did not complain about the actions at issue, and was offered options to

transfer in lieu of her resignation. We find that before her resignation,

complainant had the option to complain to management to see if the

behavior alleged ceased.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge 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 that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record in its entirety, including the

transcript, the Commission finds that the AJ's recommended decision,

in all material respects, properly analyzed the appropriate regulations,

policies and laws. The Commission has reviewed the parties' statements on

appeal and discerns no basis in which to disturb the AJ's ultimate finding

of no discrimination on the bases of sex and reprisal.<2> Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

May 22, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.

2The agency, however, is put on notice that it could well be found in

violation of federal law where it tolerates the kind of conduct described

by many in this record. Employees and managers should be trained on

how to prevent harassment on all prohibited bases, including sex. See,

Enforcement Guidance: Vicarious Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999), pp. 15-34.