01962731
10-16-1998
Caridad C. Brooks, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Caridad C. Brooks v. Department of the Navy
01962731
October 16, 1998
Caridad C. Brooks, )
Appellant, )
)
v. ) Appeal No. 01962731
) Agency No. 94-N41961-001
John H. Dalton, ) Hearing No. 120-94-5873X
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
DECISION
On February 23, 1996, Caridad C. Brooks (appellant) timely appealed the
Department of the Navy's (agency) final decision, dated February 14,
1996, concluding she had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. In her complaint, appellant had alleged: (1) that she had
been discriminated against on the basis of her sex (female) when her
supervisor sexually harassed her on August 18, 19 and 20, 1993; and (2)
that she was unlawfully retaliated against for raising the allegations
of sexual harassment against her supervisor when, on August 27, 1993,
her work schedule was changed and her March 1993 work performance review
was not in her personnel file. This appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
The record establishes that at the time of the events at issue,
appellant was employed by the agency as a Food Service Worker, NA-02,
in the Navy Exchange in Norfolk, Virginia. As an intermittent employee,
appellant had no firm work schedule or guaranteed hours. Her immediate
supervisor was the Food Service Foreman (the Foreman) (male). However,
while the Foreman supervised appellant's day-to-day work, as well as that
of several other employees, he had no authority to complete performance
reviews, approve leave or determine work schedules.
Appellant alleged that on August 18, 1993, she approached the Foreman,
in an enclosed office, in order to collect her pay check. One of
her coworkers (Coworker 1) (female) arrived at approximately the same
time to collect her own check. Appellant asserted that the Foreman,
without prompting, placed her over his knee and began spanking her
on the buttocks. However, both the Foreman and Coworker 1 disputed
appellant's version of the incident, and testified that appellant told the
Foreman it was her birthday and asked him what he was going to give her.
Coworker 1 stated that the Foreman responded,"I can give you a hug,"
and then approached appellant and hugged her. After the hug, Coworker
1 testified that she left the office with appellant, and saw appellant
turn and smile at the Foreman as she departed.<1>
On August 19, 1993, appellant asserted the Foreman pressed against her
while she was preparing chicken in the kitchen area for a customer.
The Foreman denied the allegation. The customer testified that he
observed the Foreman walk past him and into the kitchen area. The
customer said that he immediately followed the Foreman into the kitchen
area because appellant was taking too much time preparing his chicken.
He said he witnessed the Foreman behind appellant and pressed against her
for approximately eight to ten seconds, at which point appellant screamed,
"What the hell you doing," and the Foreman moved.
Finally on August 20, 1993, appellant alleged that while she was standing
by the water cooler, the Foreman approached her and put his arm around
her shoulder and asked if she was "alright." Appellant stated that she
asked him to remove his arm and he complied. Later that day, appellant
initiated contact with an EEO counselor and raised her allegations of
sexual harassment against the Foreman.
Before the EEO counselor communicated appellant's concerns to upper
level management, the record establishes that the Foreman approached
the Food Service Manager (the Manager) (male) and informed him that he
had heard rumors that appellant was accusing him of sexual harassment.
In response, on August 23, 1993, the Manager called appellant in to
discuss her concerns with him. After this discussion, the Manager
directed the Foreman to avoid all physical contact with appellant and
agreed, with appellant's concurrence, to transfer appellant to a work
location away from the Foreman.
The evidence establishes that prior to her transfer appellant worked, on
average, 28 hours per week. Subsequent to her transfer, she was being
provided an average of 25.4 hours per week. However, once appellant
complained to the Manager about the decrease in hours, he ordered that
she be given the same hours of work as she had been given prior to
her transfer. The evidence indicates that this directive was promptly
implemented, and appellant did not complain about her hours again.
The supervisor who scheduled appellant's hours stated that he was not
aware appellant had filed an EEO complaint and the number of hours he
scheduled for her were based on the needs of the work area and her status
as an intermittent employee.
In August 1993, appellant went to the personnel office to review her
personnel file. She stated that, at that time, her file contained a
work performance review dated March 15, 1993. However, she said that
when she reviewed her file again in September 1993, the work performance
review was missing. The record indicates that work performance reviews
were used by the agency to determine whether an employee should receive
a step increase in pay. The record established that despite the fact
that the review was missing from her file, appellant received her step
increase as scheduled.
On February 17, 1994, appellant filed a formal EEO complaint with the
agency, raising the allegations referenced above. The agency accepted
the complaint and conducted an investigation. At the conclusion of the
investigation, appellant requested an administrative hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge (AJ).
On December 7, 1995, following a hearing at which ten witnesses testified,
the AJ issued a decision recommending a finding that appellant failed to
prove she was the victim of sexual harassment or unlawful retaliation.
In reaching this conclusion, the AJ found that appellant did not
produce evidence sufficient to establish that the incidents of which
she complained occurred or were sexual in nature, or, even if they did
occur, were sufficiently severe or pervasive to create an abusive work
environment in violation of Title VII. With regard to appellant's
reprisal claims, the AJ found no prima facie case because appellant
could not demonstrate that she suffered an adverse employment action as
a result of her protected activity or that a causal connection existed
between any purportedly adverse action and the protected activity.
On February 14, 1996, the agency issued its final decision adopting
the findings and conclusions of the AJ. It is from this decision that
appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies and
laws. Based on the evidence of record, the Commission discerns no basis
to disturb the AJ's finding of no sex discrimination or retaliation.
The Commission takes special note of appellant's claim of sexual
harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the appellant's employment. EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. See also,
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). After reviewing the evidence of record, the Commission concurs
with the AJ's holding that appellant has failed to establish that she was
subjected to harassment which was sufficiently severe or pervasive so as
to constitute a hostile work environment. In reaching this conclusion,
the Commission notes that the AJ based his findings that no sexual
harassment occurred, at least in part, on determinations he made about
the credibility of the witnesses in this matter. These 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).
The Commission, after an independent review of the record, found no
significant evidence to contradict the AJ's credibility findings.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination or retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct 16, 1998
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 Another witness testified that appellant offered him a sum of
money to lie on her behalf regarding the alleged spanking incident on
August 18, 1993. He said he declined her offer.