0120063366
06-08-2007
Nancy K. Lopez, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Nancy K. Lopez,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200633661
Agency No. CRSD200400047
Hearing No. 100-A5-0751X
DECISION
On May 9, 2006, complainant filed an appeal from the agency's April
27, 2006 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 decision.
The record reveals that at the relevant time, complainant was a Physical
Scientist, GS-9, at the Office of the Chief Economist ("OCE"), World
Agricultural Outlook Board ("WAOB"), in Stoneville, Mississippi.
Believing she was a victim of discrimination, complainant sought
EEO counseling, and filed a formal complaint alleging that the agency
discriminated against her by subjecting her to harassment and disparate
treatment on the basis of sex (female), when:
1. On April 30, 2004, a co-worker (C1) unlocked her office door
without her permission;
2. C1 answered her phone call without taking a message, or responded
to inquiries regarding her duties without taking a message;
3. C1 followed her around to meetings;2
4. She was placed on meeting agendas without being informed;
5. She was not allowed to work on a project;
6. Her request to change her duty hours was denied;
7. In January and March 2003, C1 referred to her as his "girlfriend"
although both are married to others;
8. In February 2003, she was propositioned by C1 with an offer to stay
overnight at his house while his wife was away;3 and
9. The agency upon notification of the harassment by the co-worker failed
to take appropriate action.
Complainant subsequently alleged that she was discriminated against on
the basis of reprisal for prior protected EEO activity (filing formal
complaint alleging sexual harassment) under Title VII, when:
10. In November 2004, complainant's performance rating was reduced from
"superior" to "fully satisfactory" for her October 2003 through September
2004 performance, and she did not receive a cash award.4
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. On December 29, 2005, the AJ assigned to the case
issued a Notice Of Intent To Issue A Decision Without A Hearing in favor
of the agency and ordered complainant to submit a written Opposition no
later than February 28, 2006. Complainant filed a Motion For Enlargement
Of Time To Submit An Opposition To The Administrative Judge's Notice.
The AJ denied the Motion. The AJ then issued a decision without a
hearing on March 13, 2006, finding no discrimination.
In his decision, the AJ found that complainant has not demonstrated
a prima facie case of sexual harassment or harassment (non-sexual)
based on her sex because the incidents she relies upon, examined in
isolation or in concert, do not represent the type of severe and/or
pervasive behavior required to trigger a Title VII violation. As to the
lowered performance rating, the AJ found that the agency articulated a
legitimate, nondiscriminatory reason for its action, which complainant
failed to prove was pretextual. 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.
On appeal, complainant reiterates her version of the facts and asserts
that she has been subjected to unlawful harassment based on her sex,
and retaliation. In response, the agency requests that we affirm the
final order. As an initial matter we note that, as this is an appeal from
a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.5 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 8, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Complainant describes this as "stalking." Complainant asserts that
C1 was like "glue" to her.
3 Complainant's claim is that the co-worker stated "if you want, you
can stay at my house in the guest bedroom so you don't have to pay $25,
and besides my wife is going to be out of town anyway."
4 Complainant contends that management's action was retaliation for her
complaints about sexual harassment.
5 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
??
??
??
??
2
0120063366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036