01965821
10-16-1998
Constance Asher, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Constance Asher v. Department of Transportation
01965821
October 16, 1998
Constance Asher, )
Appellant, )
)
v. ) Appeal No. 01965821
) Agency No. 2-95-336
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
________________________________)
DECISION
INTRODUCTION
On July 29, 1996, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from the final decision
of the agency concerning her allegation that the agency discriminated
against her in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. This appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
Whether the agency discriminated against appellant on the basis of her sex
(female) when she was allegedly subjected to various acts of harassment.
BACKGROUND
Appellant filed a formal EEO complaint dated December 28, 1994, alleging
sex discrimination because of various incidents of sex-based and sexual
harassment. The agency accepted the complaint for investigation.
Following the issuance of the investigative report, appellant did not
request a hearing before an EEOC Administrative Judge. The agency issued
a final decision finding that appellant was not subjected to harassment.
Appellant appealed that determination.
At the time of the alleged discriminatory incidents, appellant was
employed with the agency as a Division Secretary, GS-318-7, in the Office
of the Associate Administrator for Airways Facilities Evaluation Staff,
AAF-20. According to appellant, she was told by the Staff Manager upon
her arrival in October 1991 that he had not wanted her assigned to the
unit, but that he had to comply with the decision by a higher authority.
Appellant stated that prior to the AAF-20 assignment, she had worked in
another unit where she was identified as a troublemaker and a whistle
blower because of her objections to some time and attendance practices,
and was thus reassigned. Appellant alleged that the Staff Manager in
AAF-20 made his dissatisfaction over her reassignment to that unit
known to the other staff members, and asked that they report her errors
to him. She alleged that the errors attributed to her were often the
result of conflicting directions and priorities of other staff members.
Appellant asserted that she was never provided with a job description
and that when she attempted to develop a plan for herself, she was given
no feedback about expectations.
She alleged that in May 1992 she received a performance evaluation
with a rating of 1.0, or fully successful. She believed the rating
was unfair since it was not developed against any standards and did
not cite the appropriate AAF-20 evaluation period. The appraisal
indicated that appellant needed improvement in quality control of outgoing
correspondence, and that her interpersonal relations were not "supportive
of working as an effective team." Appellant argued that her previous
performance evaluations at other offices were at the "exceptional" level.
Appellant also contended that she was charged with the responsibility
of ensuring continuous phone coverage. While she was told to pass the
responsibility to other staff members when she needed to be away from
her desk, the other staff members did not cooperate. She alleged that
this situation necessitated that she not take lunch or restroom breaks.
Appellant asserted that she was routinely referred to in derogatory terms
by other staff members, but that there was little attempt by the Staff
Manager to conceal that these terms were used. She also alleged that the
staff members had tampered with her computer and the items on her desk.
She stated that during an off-site team building exercise in May 1992,
she raised issues with the facilitator, such as the lack of assistance
for phone duty. When the facilitator, the Management Consultant, asked
the Staff Manager in that meeting what he proposed for appellant,
the Staff Manager responded, "I don't care what they do with her."
Appellant contended that this caused her to leave the room in tears and
that the Staff Manager smiled as she left the room. She stated that
when the Staff Manager was temporarily reassigned in November 1992, and
the Management Consultant acted in his place, the Management Consultant
agreed that appellant was treated unfairly by the members of AAF-20.
Furthermore, she alleged that she was subjected to sexual harassment
as the Staff Manager allowed a male employee to display a picture of a
naked female posterior, despite her complaints. She alleged that when
she complained to the male employee, he told her that if she did not
like it she should not come in his work area. She argued that avoiding
the area was not practical as that employee often served as the acting
supervisor. She alleged that on another occasion a female employee made
a sexual comment to her. She indicated that the Staff Manager told her
that she could file a grievance based on the incident with the comment,
but that he did nothing to correct the situation.
Appellant asserted that as a result of the working environment she
suffered a stroke. She stated that she developed a hypertension disorder
as a result of the stress.
Employee A, who was not in the same unit as appellant but sat near her,
stated that he saw the Staff Manager and his staff act in ways to clearly
upset appellant. He also stated that he observed the inappropriate
picture in Employee B's office.
The Staff Manager indicated that appellant was provided with a position
description in October 1991. He stated that he did not instruct other
staff members to report deficiencies in appellant's performance to him.
He stated, however, that appellant's performance was deficient, as
she had poor interpersonal skills and failed to improve in her tasks.
He stated that appellant made complaints to him that other staff members
were rude to her, but that when he investigated the incidents, the other
person involved stated that appellant was rude to them. He indicated
that he often covered the telephones for appellant while she was on break.
He denied that at any time during the team building exercise did he tell
the facilitator that he did not care what was done with appellant.
With regard to the allegation that he did not respond to appellant's
complaint of a vulgar picture in another employee's office, the Staff
Manager stated that he had never been made aware by appellant or anyone
else of such picture. He stated that he was unaware of any statement of
a sexual nature made to appellant by another female employee. He also
indicated that he was unaware of appellant's health problems until on
one occasion she told him of physical abuse by a former spouse that lead
to a seizure once while she was driving.
Employee B (male) denied that he displayed an inappropriate picture
in his office. Employee C (female) stated that she was never given
instructions to report appellant's deficiencies, or to treat her in a
specific way. She stated that appellant was responsible for altercations
with co-workers. According to Employee C, employees were hesitant about
approaching appellant for fear that she would yell at them. She also
stated in her affidavit that she never made a sexually suggestive comment
to appellant. She also indicated that others in the office assisted in
covering the phones.
The Management Consultant, who also conducted the off-site meeting with
staff members, stated that at the time she worked with AAF-20 as the
acting supervisor, she observed that most of the staff was comprised of
individuals who held previous social and personal relationships because
of common assignments in Baltimore. When it was clear that appellant and
the Staff Manager had an adversarial relationship that was poorly managed,
the "bonded members" of the staff aligned themselves with the behavior of
the Staff Manager. She stated that she believed that appellant attempted
to fulfill the needs of the unit, but that she could not rise above the
problems. The Management Consultant stated that when she was the acting
supervisor for AAF-20, appellant performed satisfactorily.
In a hearing before the Office of Workers Compensation Programs,
the Management Consultant indicated that appellant was reactive to the
hostile stimuli around her and that her tone of voice would often change
or she would cry, which would further aggravate her relations. In the
course of that hearing the consultant stated that a female employee made
a complaint against appellant as a result of an argument. As part of
a mediation between the two, the other employee agreed to a detail to
put space between her and appellant.
In its final decision, the agency determined that appellant failed to
establish quid pro quo sexual harassment as there was no indication that
appellant's submission to or rejection of unwelcome conduct was used
as the basis for an employment decision. It also stated that appellant
failed to show that the alleged offensive conduct unreasonably interfered
with her ability to function in her position.
On appeal, appellant argues that while the agency specifically points
out that Employee A is her brother, it does not make his sworn testimony
about her working conditions less credible. She also argues that the
harassment was so severe and pervasive that she was required to apply
for disability retirement.
Appellant also submits a sworn statement from an employee who worked
on the same floor who stated that some of appellant's male counterparts
called her a "stupid broad." This employee indicated that when he spoke
to the Staff Manager regarding the picture in Employee B's office, the
Manager responded, "Oh that stupid broad, she's not able to handle her
own job, and is looking for something to bitch about today." Appellant
argues that such statement indicates that the Staff Manager was aware
of the inappropriate picture but failed to take appropriate action, such
as inquiring with other employees as to whether they had seen it.
ANALYSIS AND FINDINGS
We note in reviewing appellant's allegations that she is alleging that she
was subjected to both harassment based on sex and sexual harassment. In
order for harassment to be considered conduct in violation of Title
VII, the conduct need not seriously affect an employee's psychological
well-being or lead the employee to suffer psychological injury. Rather,
as stated in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), a
case involving a claim of discrimination based on sex, the applicable
standard provides that Title VII is violated when the work place is
permeated with discriminatory behavior that is sufficiently severe or
pervasive to create a discriminatorily hostile or abusive environment.
This standard requires an objectively hostile or abusive environment,
one that a reasonable person would find hostile or abusive. See Harris
v. Forklift Systems, Inc., 114 S.Ct. 367, 371 (1993).
The severity of the alleged harassment must be determined from a totality
of the evidence. One of the critical components in this type of claim
is the environment. Evidence of the general work atmosphere as well of
incidents of specific hostility directed toward the complainant, is an
important factor in analyzing such a claim. Hall v. Gus Construction,
842 F.2d 1010 (8th Cir. 1988).
We find that appellant has not established that she was subjected to
harassment based on her sex. To prevail on a claim of harassment,
a complainant must show that (1) she belongs to a protected group;
(2) she was subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of employment and create an abusive or
hostile environment; and (3) the harassment was based on an impermissible
factor such as race. See generally, Taylor v. Dept. of the Air Force,
EEOC Request No. 05920194 (July 8, 1992).
First, we note that appellant belongs to a protected group. We also note
that while appellant was subjected to a series of acts and a general
work environment that involved criticism and confrontation with most
of her co-workers, we do not find that such acts were sufficiently
severe to create a hostile work environment based on appellant's sex.
Despite the evidence that appellant's daily work environment was permeated
with less than civil exchanges between appellant, her supervisor, and
her co-workers, the record does not indicate that these acts were based
on appellant's sex. The record indicates that the hostility was likely
initiated by the circumstances of appellant's reassignment to AAF-20,
and perpetuated by the prior relationships of the other staff members.
Although evidence indicated that appellant was not treated in a civil
manner, other testimony showed that appellant was often difficult to
approach with work. Despite appellant's arguments that she was not
assisted in her performance of duties because she was not given a job
description, the Staff Manager's affidavit refuted this representation.
Furthermore, the affidavits of the Staff Manager and other staff members
indicate that appellant was provided with assistance for the telephones.
Although appellant argued that her performance review was not fair,
she has not provided evidence that her performance was showing a course
of improvements. The agency has offered legitimate, nondiscriminatory
reasons for its actions toward appellant. Appellant has not shown that
these reasons are not credible, and she has not established that the
agency's reasons for its actions were based on her sex.
Furthermore, we find that appellant failed to establish that she was
subjected to a hostile environment based on sexual harassment. While
appellant argued that she was subjected to acts of a sexual nature in
her work environment, the record does not indicate that these incidents
were severe or pervasive enough to result in a hostile environment for
appellant. Appellant asserted that she was addressed with a remark
concerning sexual activity on one occasion by a female co-worker.
There was no indication from the record that the alleged remark
was so severe as to sufficiently alter appellant's work environment.
Additionally, we find that the display of the inappropriate photograph,
as described by appellant, in another employee's work area would not
by itself subject appellant to pervasive environment of inappropriate
sexual content. Accordingly, we find that appellant failed to establish
discrimination on these issues.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision finding no discrimination.
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. 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 (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