01A11776
06-20-2002
Charles R. Davis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Charles R. Davis v. Department of Veterans Affairs
01A11776
June 20, 2002
.
Charles R. Davis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11776
Agency No. 98-3666
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
Complainant is employed as a GS-6 Veterans Affairs Police Officer at the
agency's Huntington, West Virginia Medical Center, where complainant's
direct supervisor is the Chief of Police (Chief). Complainant and eight
male police officers use the agency's police locker room to change into
and out of their uniforms. It is within this locker room that complainant
alleges he was sexually harassed by the Chief when between 1996, and
November 30, 1998, the Chief stared at the officers and refused to close
his office door while the officers changed into and out of their uniforms.
The record reveals that the Chief's office is located within the locker
room and from his office he has an unobstructed view of the changing area.
The locker room does not have toilets or bathing facilities and officers
do not entirely disrobe in the locker room. Rather, the officers use
the locker room to change clothing so that they do not have to commute
wearing their uniforms which could be confused with the uniforms worn
by municipal police. When the Chief refused to shut his office door
while complainant disrobed, he filed the instant complaint of sexual
harassment. Complainant sought EEO counseling and subsequently filed
a formal complaint on November 30, 1998.
In connection with the processing of the above complaint, complainant
also alleged that he was discriminated against on the basis of reprisal
(protected by Title VII) when the Associate Medical director (RMO 2)
allegedly intimidated the agency's EEO investigator and interfered
with an interview conducted by that investigator by attempting to peek
into an office where the EEO investigator was interviewing a witness
(witness). The agency amended complainant's complaint to include this
claim and conducted a supplemental investigation. At the conclusion of
the supplemental investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision on both claims by the agency. Complainant
requested that the agency issue a final decision. In its FAD, the
agency concluded that complainant was not harassed or retaliated against.
It is from this FAD that complainant now appeals.
In order to establish a claim of sexual harassment, complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to unwelcome conduct related to his gender, such as sexual
advances, requests for favors, or other verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4) the
harassment had the purpose or effect of unreasonably interfering with his
work performance and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to
the employer. See McCleod v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d
987, 903 (11th Cir. 1982). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
It is at the third step in this analysis that complainant's harassment
claim fails. To be actionable, the challenged conduct must have occurred
�. . . because of [complainant's] . . . sex.� Oncale v. Sundowner
Offshore Services, Inc., 423 U.S. 75, 80 (1998). Complainant must
establish that the conduct at issue was not merely tinged with offensive
sexual connotations, but actually constituted discrimination because
of sex. Oncale, 423 U.S. at 81. Complainant has not established that
the Chief gazed at him because of his sex. The evidence established that
the Chief looked at most of the officers while they changed. However,
the fact that the Chief looks at the officers while they change clothing
does not address the dispositive inquiry, i.e., whether he looked at
the officers because they are male. Accordingly, based upon the record
before us, we are not convinced by a preponderance of the evidence that
the Chief's conduct was based upon the sex of complainant.
We turn next to complainant's allegation of reprisal. Complainant
alleges that RMO2 attempted to interfere with the investigation of
his EEO complaint by intimidating one of complainant's witnesses.
RMO2 apparently stood outside of the investigator's office where the
investigator was conducting an interview with a witness in connection the
harassment complaint. Under Title VII, it is unlawful for an employer
to discriminate against any of �[its] employees...because he...has
made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or litigation...� pursuant to Title VII.
42 U.S.C. � 2000e-3(a). In this case, RMO2 articulated a legitimate
non-retaliatory reason for standing outside of the investigator's
door; namely, he was waiting for the interview to conclude so that
he could speak to the investigator. Having articulated legitimate
nondiscriminatory reasons for RMO2's action, complainant must now prove by
a preponderance of the evidence that the reasons proffered by the agency
were a pretext for reprisal discrimination. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant offered no
evidence that the agency's reasons were a pretext for retaliation.
While it is unfortunate that the witness was aware of RMO2's presence
during the interview, there is no evidence upon which to conclude that
RMO2 intended to intimidate the witness or otherwise interfere with
the investigation of the complaint. Notably, the agency conducted
a supplemental investigation into the reprisal allegation. We are
satisfied that the supplemental investigation cured any chill on the
witnesses participation in the EEO process. The witness and RMO2
separately participated with the supplemental investigation. We are
satisfied that the witnesses' participation in the process was not
interfered with during the supplemental investigation.
Therefore, because the complainant did not establish discrimination by
a preponderance of the evidence it is the decision of the commission to
affirm the agency's final decision finding no discrimination.
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 20, 2002
__________________
Date