0120081491
09-14-2009
Vawn M. Muse, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Vawn M. Muse,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120081491
Agency No. EEODFS070447F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 11, 2008, final decision 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.
Complainant alleged that the agency discriminated against her on the bases
of sex (female) and reprisal for prior protected EEO activity when she was
harassed and subjected to a hostile work environment between May 2006 and
July 2007, with regard to seven incidents.1 Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
In November 2007, she withdrew her request for a hearing and asked for
a final agency decision (FAD). The agency issued a FAD, finding that
the agency did not discriminate against complainant.
Complainant began working for the agency's Internal Revenue Service
as a Revenue Officer, Small Business Division, at the King of Prussia,
Pennsylvania Center in August 2005. She contended that her manager (S1)
criticized her work and treated her differently on account of her sex and
prior EEO activity, including the instant complainant.2 Specifically,
complainant contended that S1 minimized her work; told her that she was
not sufficiently submissive to him; that he did not adjust her heavy
workload following her four-week medical absence; that, until January
2007, neither she nor any female employee was given signatory authority
when serving as Acting Manager; that, on January 29, 2007, she received a
negative case review from S1 based on notes from her Group Manager (S2);
that S1 gave her specific directions on her cases during monthly reviews;
that S1 gave her unproductive tasks (not identified); that S1 made a
"fraud referral" to make her look bad; and that S1 gave her a negative
mid-year review.
S1 had served with the agency since 1988, and became a supervisor in
March 2003. In response to complainant's allegations, he denied using
the term "submissive" about anyone but did tell complainant that she
was aggressive and abrasive to him, taxpayers, and co-workers; he did
adjust her caseload by not assigning her new cases for 30 days following
her absence; that signatory authority was given to a male and female at
the same time and to a second female a little later; that his January
and July 2007 performance reviews were based on her work activity and
presented an accurate description of her deficiencies, including notes on
her cases from S2; and, as to her belief that the fraud referral would
impact her negatively, he stated that it was not true, especially since
he signed the document. Finally, S1 noted that complainant had never
spoken to him regarding discrimination or harassment.3
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Harassment. It is well-settled that harassment based on an
individual's protected status is unlawful, if it is sufficiently
patterned or pervasive; usually, however, a single incident or a group
of isolated incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8,
1996); Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); see also Meritor Savings Bank FSB v. Vinson, 477
U.S. 57 (1986). In this matter, while complainant is a member of a
protected class based on her sex and prior EEO activity, she has not
shown that the agency's actions were based on gender animus or taken in
reprisal. Further, we find that none of the incidents, taken together
or individually, were sufficiently severe or pervasive to rise to the
level of illegal harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment). Moreover, complainant has not shown that the
alleged harassment took place, 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.4 See Humphrey v. United States Postal Service, EEOC
Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
We find that, even if complainant's harassment claim is examined as
claims of disparate treatment, she has not demonstrated that the agency's
reasons for its actions were not its true reasons and that its actions
were influenced by legally impermissible criteria, i.e., animus toward her
based on her sex and EEO activity. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983).
In her appeal statement, complainant stated that she disagreed with S1's
opinion of her work performance, that she believed that S1 intended
to cause her stress by harassing her on account of her sex, that she
performed well and was rated highly, and that she should be treated with
the same care and consideration as given to males. These contentions
reiterate her original allegations in this complaint but do not provide
probative evidence in support of her claims. See Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999).
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record 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
September 14, 2009
Date
1 In July 2007, complainant amended her complainant with regard to an
unfavorable mid-year review she received.
2 S1 stated that he became aware of complainant's EEO activity with
regard to the instant complaint in March 2007.
3 In her appeal statement, complainant stated that she disagreed with
S1's opinion of her work performance, that she believed that S1 intended
to cause her stress by harassing her on account of her sex, that she
performed well and was rated highly, and that she should be treated with
the same care and consideration as given to males. These contentions
reiterate her original allegations in this complaint but do not provide
probative evidence in support of her claims.
4 See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
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0120081491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081491