01A00393_r
11-08-2001
Horace S. Anderson, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Horace S. Anderson v. Department of the Interior
01A00393
November 8, 2001
.
Horace S. Anderson,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A00393
Agency No. FNP-99-043
DECISION
Complainant filed a timely appeal from a final agency decision concerning
his complaint of unlawful employment discrimination brought pursuant
to Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The Commission accepts the appeal. See 29
C.F.R. � 1614.405.
Complainant claims sexual harassment by his female supervisor due to a
hostile work environment as evidenced by the following incidents:
(1) Complainant's female supervisor (FS) routinely addressed him as
�boo,� �love,� and �babe;�
(2) In Spring 1998, FS entered complainant's booth, placed her arms
around him, and kissed him on the neck;
On an unspecified date, FS unnecessarily leaned across complainant's desk
to reach a log book, positioning her breasts in complainant's face; and
Complainant heard rumors that FS brought in pictures of herself displayed
in provocative dress, as well as other rumors of sexually provocative
conduct.
Additionally, complainant claims harassment due to a hostile work
environment on the basis of sex (male) by FS as well as his female second
line supervisor as evidenced by the following incidents:
On October 22, 1998, SF called complainant a liar during an argument
when he claimed that she misrepresented his statements in a memorandum
to the second line supervisor concerning improper display of the flag;
On October 26, 1998, after SF signed off on complainant's log book
entries, she then questioned these entries; and,
On October 27, 1998, the second line supervisor failed to respond
to complainant's complaint about FS's conduct concerning the matter
addressed in claim 6.
The record reveals that during the relevant time, the agency's National
Park Service (Park Police) employed complainant as a GS-5 Security Guard
at its Brentwood Maintenance Facility in Washington, D.C. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on December 18, 1998. At the
conclusion of the investigation, the agency informed complainant of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its decision, regarding claim 1, the agency found that complainant
failed to identify any other sexually oriented remarks made by FS to
complainant, and concluded that, while inappropriate, this conduct did not
create a hostile work environment.<1> With respect to claims 2, 3 and 4,
the agency determined that complainant failed to provide any corroborating
evidence to show that these incidents actually occurred, or to otherwise
show that conduct as described was unwelcome or created a hostile
work environment. Furthermore, the agency found that complainant
failed to report this conduct to a responsible management official,
such that the agency had no knowledge of the alleged harassment in
question, and so could not be liable for failing to take prompt remedial
action. Finally, in considering claims 5, 6, and 7, the agency found
that while complainant demonstrated that these incidents occurred, he
failed to provided evidence that either FS or the second line supervisor
acted with the intent to harass him, or that these incidents otherwise
created a hostile work environment. Therefore, the agency concluded
that complainant failed to prevail in his claim of sexual harassment,
or harassment based on sex, due to a hostile work environment.
Complainant now appeals this determination. In response, the agency
requests that we affirm its determination.
In general, an employer creates a hostile work environment in violation
of Title VII when its actions are based on a protected characteristic
and are so severe or pervasive that they alter the conditions of the
employee's employment and create an abusive working environment. See
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation of
Title VII must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993);
Enforcement Guidance on Harris v. Forklift Systems, Inc. EEOC Notice
No. 915.002 (March 8, 1994) at 3, 6. In Faragher v. City of Boca Raton,
118 S. Ct. 2275 (1998), the Supreme Court stated that: �simple teasing,
offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the �terms and conditions of
employment.'�<2> Harassment is actionable only if the harassment to which
the complainant has been subjected was sufficiently severe or pervasive to
alter the conditions of the complainant's employment. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In addition to the above considerations, in order to establish a
prima facie case of sexual harassment a complainant must show that:
(1) he belongs to a statutorily protected class; (2) he was subjected
to unwelcome conduct related to his gender, including 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
897 (11th Cir. 1982); Faragher, supra. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. See EEOC Policy Guidance on Current Issues of
Sexual Harassment, EEOC Notice No. 915.050 (March 19, 1990).
Here, even assuming that all of the incidents identified by complainant
in support of both harassment claims are true, we find that the evidence
fails to show that these actions, viewed cumulatively, are sufficiently
severe or pervasive to create discriminatory changes in complainant's
work environment. The record reflects that complainant disliked FS,
and viewed her as unprofessional; however, there is no indication that
complainant felt intimidated by her conduct, or that her conduct in any
way interfered with the performance of his duties. In particular, we
find that none of the conduct at issue was particularly severe in terms
of offensiveness to complainant, even the touching described in claims
2 and 3, with complainant testifying that he was surprised, but not at
all threatened by FS, which is why he didn't report her conduct to a
management official. Additionally, we find that the conduct described
in claim 1 consisted of frequent, but �off-hand� comments, and that
remaining incidents each occurred in an isolated manner. Moreover, with
respect to incidents 6 and 7, it appears that both FS and the second
line supervisor were legitimately acting within the parameters of their
supervisory roles, and we further note that no adverse employment action
against complainant ultimately resulted. Finally, we concur with the
agency's finding that complainant did not report any of the referenced
conduct to a responsible management official, so that even if complainant
had been able to demonstrate harassment, the agency would nonetheless
avoid liability. See McCleod, supra.
Accordingly, we find that the agency properly determined that complainant
failed to prove that he was subjected to a hostile working environment
and/or that the agency failed to take appropriate actions. 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 agency's decision.
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
November 8, 2001
__________________
Date
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
______________________________
1The agency noted that because it found FS's use of these terms to
be unprofessional, and because affidavit evidence verified that FS
frequently addressed her subordinates using these and similar terms, it
would undertake corrective action. In its response to the appeal, the
agency further indicates that it had completed this corrective action,
consisting of individual counseling of FS, as well as providing her with
extensive EEO training.
2While Faragher addressed sexual harassment, the Supreme Court's analysis
drew upon standards set forth in cases involving harassment on other
protected bases, and the Commission has always taken the position that
the same basic standards apply to all types of prohibited harassment.
See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.007 (June 18, 1999).