Carolyn W. Salters v. Department of Housing and Urban Development 01983791 January 7, 2000 Carolyn W. Salters, ) Complainant, ) ) Appeal No. 01983791 v. ) Agency No. FW9235 ) Andrew M. Cuomo, ) Secretary, ) Department of Housing and ) Urban Development, ) Agency. ) ) DECISION Complainant timely initiated an appeal of a final agency decision (FAD) concerning her complaint of unlawful employment discrimination on the bases of race (Black) and reprisal (prior EEO activity), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> Complainant alleges she was discriminated against when she was harassed by her supervisor. The appeal is accepted in accordance with EEOC Order No. 960.001. For the following reasons, the Commission affirms the decision as modified. - The record reveals that during the relevant time, complainant was employed as a GS-4 clerk, at the agency's Fort Worth facility. Complainant alleged that while she worked on a special detail, she was harassed by her supervisor (S1) when: (1) she was placed on leave restrictions by memorandum dated April 13, 1992; (2) the reasons for her leave requests were questioned; (3) she was not allowed to use administrative leave to participate in a HUD sanctioned volunteer activity; and (4) she was given an inaccurate performance progress review on April 14, 1992. Believing she was a victim of discrimination, complainant sought EEO counseling and, subsequently, filed a complaint on June 5, 1992. At the conclusion of the investigation, complainant requested that the agency issue a FAD. The FAD dismissed issues nos. (1) and (2) (leave restriction and questions regarding leave) as moot since complainant resigned from the agency on June 4, 1993. The FAD also dismissed issue no. (4) regarding complainant's inaccurate written performance progress review since the agency viewed it as a proposed action that did not result in any direct and present harm. The FAD then concluded that complainant had failed to establish a prima facie case of reprisal and race discrimination but indicated that even if she had, the agency had provided legitimate, nondiscriminatory reasons for its action. With regard to issue no. 3 (not being allowed to use administrative leave) the FAD concluded that complainant in fact, had been allowed administrative leave. The FAD also held that complainant had failed to establish a prima facie case of harassment because she presented no evidence that a hostile or offensive working environment was created. On appeal, complainant raises issues that are beyond the scope of this appeal. The agency requests that we affirm its FAD. After a careful review of the record, based on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the Commission agrees that issues (1) and (2) are moot. EEOC Regulation 29 C.F.R. §1614.107(e) provides for the dismissal of a complaint, or portions thereof, when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. We agree that issues (1) and (2) regarding leave are moot since it can be said with assurance that the action is unlikely to recur since complainant no longer works for the agency and since according to the FAD, leave records are not permanently retained. With respect to the progress review, the agency maintains that the progress review resulted in no harm because it was a warning notice which had no material or permanent effect. We disagree with the agency. While there is no indication that the written warning notice was placed in complainant's personnel file, it appears that it was a part of her official file because it is signed by complainant and her first and second line supervisors. The Commission has held that written warning notices which are placed in a complainant's file constitutes a direct and personal deprivation sufficient to render an individual aggrieved. See McAlhaney v. United States Postal Service, EEOC Request No. 05940949 (July 7, 1995); Fair v. Department of the Navy, EEOC Appeal No. 01961886 (November 4, 1996). Therefore, we find that this issue should not have been dismissed. Nevertheless, we find that complainant failed to establish a prima facie case of reprisal and race discrimination with respect to all issues because she failed to establish that she was meeting the agency's legitimate expectations with respect to her leave usage and work performance and because she failed to establish that her supervisor was aware of her prior EEO activity. We find that the complainant had a leave problem and had been placed on leave restriction by her former supervisor. We find that S1 was just carrying out this process. Further, the record reveals that complainant was allowed to use administrative leave for her volunteer activity and was only asked to use annual leave when she could not account for her time. Complainant did not dispute this fact. With regard to complainant's performance progress review, we find that S1 credibly stated that complainant contributed less than any other employee. He stated that complainant's file processing rate was 28 when the average was 40 and the highest producers rate was 64. With regard to complainant's claim that these actions caused a hostile work environment, we find that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999). In determining whether a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6. The Supreme Court stated: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would not find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993). After a careful review of the record, we find that complainant failed to demonstrate that she was subjected to a hostile work environment. We find the incidents raised by complainant are performance related measures and were not severe or pervasive enough to create a hostile work environment. See Harris, supra. Therefore, after a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, we Affirm the FAD as modified. 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: January 7, 2000 Date Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _____________ Date __________________________ Equal Employment Assistant 1 On 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.