01981170
10-30-1998
Debbi Cunningham, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Debbi Cunningham v. Department of Transportation
01981170
October 30, 1998
Debbi Cunningham, )
Appellant, )
)
v. ) Appeal No. 01981170
) Agency No. DOT 4-97-009
Rodney E. Slater, ) Hearing No. 220-97-5244X
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
___________________________________)
DECISION
On November 19, 1997, Debbi Cunningham (appellant) timely appealed
the final decision of the Department of Transportation (agency), dated
November 7, 1997, 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 alleged that she had
been discriminated against on the basis of her sex (female) when she
was harassed and subjected to a hostile working environment by a male
coworker and management failed to take appropriate action. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant was employed by the agency as an
air traffic controller at the Mansfield, Ohio, Air Traffic Control Tower.
Appellant explained that she and the alleged harasser, a male air traffic
controller (hereinafter referred to as "Coworker A"), had been in the
same training program. She failed the course, but was later reinstated
as the result of an EEO settlement and placed at the Mansfield Tower.
Coworker A was already working there when she arrived in October 1991.
Appellant alleged that Coworker A harassed her from the day she arrived
until he transferred to another facility in October 1996. She noted,
however, that from sometime in 1993 they worked on different shifts,
and there were only two or three occasions since that time when their
shifts overlapped. As examples of the harassment, appellant alleged
that: (1) Coworker A refused to work with her and would reschedule
his shifts to avoid her; (2) he would complain to management about her
controlling abilities and reported alleged operational errors on her
part; (3) he refused to train her, give her position relief briefings
or coordinate verbally with her; (4) he was rude to her; (5) he went
AWOL (absent without approved leave) when told to work with her; (6)
he "forgot" to relay a message to her from her husband; and (7) he
filed a grievance against appellant and her husband concerning their
early departure from work on July 26, 1996. Appellant also alleged
that another male coworker joined in the harassment by signing a note
in support of Coworker A's grievance against appellant and her husband,
by refusing to relieve appellant on one occasion for a break, and by
making comments about appellant being treated more favorably concerning
her yearly agency-required physical exam.
On November 15, 1996, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as 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 November 4, 1997, the AJ, pursuant to 29 C.F.R. �1614.109(e), issued
a decision without a hearing, concluding discrimination had occurred
in these matters. In that decision, the AJ held that even if all
appellant's allegations were regarded as true, it would not establish that
the alleged harassment was sufficiently severe or pervasive to constitute
a violation of Title VII. Instead, the AJ found that the weight of
the evidence established the existence of a personality conflict between
two coworkers who were usually separated on different shifts. While the
coworkers were of different genders, the AJ noted no evidence to support
the allegation that the hostility was the result of sex discrimination.
On November 7, 1997, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination. 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 discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. The Commission
noted that 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.
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.
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 30, 1998
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations