05A30718
05-23-2003
Iris C. Mizokami, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Iris C. Mizokami v. Department of the Navy
05A30718
05-23-03
.
Iris C. Mizokami,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A30718
Appeal No. 01A23207
Agency No. 97-00311-015
Hearing No. 370-98-X2586
DENIAL OF REQUEST FOR RECONSIDERATION
Iris C. Mizokami (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Iris C. Mizokami v. Department of the Navy, EEOC
Appeal No. 01A23207 (April 3, 2003). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b). For the reasons set forth herein, complainant's request
is denied.
The issue presented is whether complainant was discriminated against on
the basis of sex when she was allegedly subjected to sexual harassment
(hostile work environment) between May and June 1997.
Complainant was employed as a Mechanical Engineer, GS-830-11, at Pearl
Harbor Naval Shipyard (the facility) in Honolulu, Hawaii. During the
relevant period, complainant worked in the Other Productive Work (OPW)
group at the facility. Complainant asserted that the �work leader�
(WL), who gave her assignments and provided appraisal input regarding
her performance in OPW, engaged in physical contact with her which
she found offensive. Believing she was a victim of discrimination,
complainant filed a formal complaint.
After the agency issued the report of investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). Following a hearing,
an AJ issued a decision finding no discrimination. The AJ found that,
although complainant established a hostile work environment claim when
she was harassed by WL, complainant nevertheless failed to report the
harassment to WL's supervisor, choosing instead to inform the union
steward. The AJ further determined that, once complainant reported the
harassment, the agency took prompt and immediate action to ameliorate
the situation. Ultimately, the AJ found that, because there was no
tangible employment action, the agency established an affirmative
defense in accordance with Faragher v. Boca Raton, 524 U.S. 775 (1998).
The AJ concluded that the agency was not liable for WL's conduct.
In its final decision, the agency implemented the AJ's decision.
Complainant filed an appeal from the final agency decision with
the Commission. In the previous decision, the Commission affirmed
the agency's decision, and found that the AJ's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, was supported by the record.
In her request for reconsideration (RTR), complainant contends, in
pertinent part, that: (1) the WL took a tangible employment action,
namely her dismissal from the OPW group; (2) the agency failed to
effectively respond and remedy her complaint of sexual harassment; and
(3) she made reasonable efforts to report the sexual harassment when
she contacted the EEO office.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is
defined as "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding that discriminatory intent did not exist is a factual finding.
See Pullman - Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. In her RTR, complainant argues that a tangible employment
action was taken such that the agency cannot invoke the Faragher defense.
Specifically, she asserts that she was dismissed from the OPW group.
The record indicates, however, that during a meeting between complainant,
WL, and a union representative, concerning a �miscommunication� over
a work project, the parties reached a general agreement, initiated by
complainant, that complainant would return to her previous position.
At the time this meeting took place, complainant had yet to report the
harassment to anyone at the agency. Therefore, since complainant
voluntarily left the group, we find that there was no tangible
employment action. Complainant further maintains that the agency failed
to effectively respond and remedy her complaint of sexual harassment. We,
however, find that, once complainant notified the agency of WL's actions,
the agency investigated the allegations, directed WL to stay away from
complainant, and issued WL a letter of caution. Complainant notes that WL
frequented her workspace and made his presence conspicuous to complainant
after the agency directed him to stay away from her. She fails to present
evidence establishing that she informed management of WL's subsequent
actions, however, and it is undisputed that the physical contact stopped.
The Commission discerns no basis to disturb the AJ's decision. Therefore,
we find that the AJ's decision, finding no discrimination, was proper.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A23207 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____05-23-03______________
Date