01962794
10-16-1998
Laura Berry, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Laura Berry v. Department of Housing and Urban Development
01962794
October 16, 1998
Laura Berry, )
Appellant, )
)
v. ) Appeal No. 01962794
) Agency No. PH-94-09
Andrew M. Cuomo, ) PH-94-10
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
________________________________)
DECISION
INTRODUCTION
On February 22, 1996, appellant initiated an appeal to the Equal
Employment Opportunity Commission (EEOC) from the final decision of
the Department of Housing and Urban Development, (agency), received
on February 2, 1996, concerning her equal employment opportunity (EEO)
complaint. Appellant alleged that the agency violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUES PRESENTED
The issue presented is whether appellant was subjected to sexual
harassment or a hostile work environment on the bases of her sex (female)
and in reprisal for her prior EEO activity when:
1) On November 3, 1993, the Field Office Manager questioned appellant
five times about her alleged sexual relationship with the Director of
Housing and Management Division;
2) Appellant was removed from the collateral-duty position of Federal
Women's Program Coordinator;
3) Her second level Supervisor allowed a co-worker to be improperly
involved in appellant's work assignments and the decision to remove
projects from appellant's workload;
4) Appellant's second level Supervisor did not share information equally
with all staff;
5) The second level Supervisor restricted appellant's use of a Government
Owned Vehicle for official business; and
6) The second level Supervisor and a co-worker allegedly spied on
appellant while she was trying to conduct official business.
CONTENTIONS ON APPEAL
On appeal, appellant contends that the incidents alleged in her complaint
show that she was subjected to both quid pro quo and hostile environment
sexual harassment.<1> She further contends that the agency failed to
investigate her complaint of sexual harassment. The agency offered no
comments in response.
BACKGROUND
Appellant filed two formal complaints, Agency Case No. PH-94-09 and Agency
Case No. Ph-94-10, alleging discrimination as stated above under "Issues
Presented." Subsequent to an investigation, the agency advised appellant
of her right to request either a hearing before an EEOC administrative
judge or an immediate final agency decision. Appellant requested a
final agency decision on the record. Thereafter, the agency issued a
final decision finding no discrimination.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that a violation of Title VII may be
predicated on either of two types of sexual harassment: (1) harassment
that conditions concrete employment benefits in return for sexual favors,
i.e. quid pro quo sexual harassment; and/or (2) harassment that, while
not involving a personnel action, is severe or pervasive enough to
create a hostile and offensive work environment. Meritor Savings Bank
F.S.B. v. Vinson, 477 U.S. 57, 62-67 (1986).
In order to establish a prima facie case of sexual harassment, for both
quid pro quo and hostile environment claims, appellant must prove, by a
preponderance of the evidence, that: (1) she belongs to a statutorily
protected group; (2) she was subjected to unwelcome sexual advances,
requests for sexual favors or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex, i.e. but for
appellant's sex she would not have been the object of the harassment; and
(4) the harassment affected a term or condition of employment, and/or
had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work
environment. Henson v. City of Dundee, 682 F. 2d 897 (11th Cir. 1982).
Hostile environment claims generally require a showing of a pattern of
offensive conduct unless the single incident is "unusually severe." See
EEOC Policy Guidance on Current Issues of Sexual Harassment at 15-16
(March 19, 1990).
Appellant may establish a prima facie case of reprisal by showing: 1)
that she engaged in protected activity, e.g., participated in a Title
VII proceeding; 2) that the alleged discriminating officials were aware
of the protected activity; 3) that she was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed
545 F. 2d 222 (1st Cir. 1976).
Considering the totality of the circumstances surrounding the alleged
incidents in appellant's complaint, the Commission finds that there has
been no showing of either quid pro quo or hostile environment sexual
harassment. We further find that the alleged discriminatory actions
cited by appellant constitute a group of isolated incidents that are
neither severe nor pervasive enough as to constitute discriminatory
harassment. See generally, Walker v. Ford Motor Co., 684 F. 2d 1355
(11th Cir. 1982).
First, the parties do not dispute that on November 4, 1993, during a
meeting, the Field Office Manager (RO 1) questioned appellant five times
regarding her alleged sexual relationship with the Director of Housing
and Management Division (the Director). On appeal, appellant contends
that RO 1's inappropriate questioning constituted both quid pro quo and
hostile environment harassment but offers no substantial evidence which
would support either legal theory. Additionally, there is no evidence
that RO 1 conditioned an employment benefit on the performance of sexual
favors or on appellant's response to his questioning. We note that two
other women were present during this meeting, and neither person reported
that the RO 1 suggested sexual favors or other employment benefits during
this meeting. Therefore, we find that appellant's allegations of quid
pro quo harassment are based on pure speculation as to what she believed
the RO 1 was trying to communicate to her through questions about her
relationship with the Director.<2>
Also, we find that RO 1's conduct, though inappropriate, does not
constitute verbal conduct that is sufficiently pervasive as to alter the
conditions of appellant's employment and, thereby, create an abusive
work environment. For instance, RO 1's questioning of appellant took
place in the company of appellant's representative, the Union President
(female), and an Administrative Officer (female). Thus, viewing the
totality of the circumstances, the Commission finds that this environment
was not intimidating or hostile. Appellant's representative immediately
instructed appellant not to answer RO 1's questions and to leave the
meeting. Therefore, at all times appellant's rights were protected,
and appellant was in control of the situation. Additionally, the
Commission notes that once the Union advised RO 1 that his questioning
was inappropriate, he never sought to question appellant again.
Regarding appellant's removal from the position of FWPC, RO 1 explained
that he removed appellant from the position because she had not done
much in the position. He further states that appellant made a statement
during an EEO Committee meeting that she was not doing anything and would
not do anything in the FWPC position because of the hostile working
environment at the agency. We note that the Director of Fair Housing
and Equal Opportunity (female, past EEO activity) also testified that
she witnessed appellant make a forceful statement at the EEO Committee
meeting, asserting that she was not going to conduct any program or
any activity in the FWPC because of the sexual harassment climate in
the office. The RO 1 stated that at the same time he removed appellant
from her position, he removed other Special Emphasis Coordinators, both
male and female, black and white. He contends that past EEO activity
had nothing to do with appellant's removal. Though appellant asserts
that she was removed from her collateral duty position of FWPC because
she would not answer RO 1's questions, we find no evidence to support
this contention. Therefore, we find that RO 1 successfully rebutted any
inference of discrimination appellant may have raised by articulating
a legitimate, nondiscriminatory reason for removing appellant from her
collateral duty position of FWPC. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Regarding appellant's third allegation, alleging interference with
her work assignments and her removal from projects, the Director and
appellant's second level Supervisor (RO 2) contend that it was in the
best interest of the Government to remove some projects from appellant's
supervision. According to the record, the agency received several
complaints regarding appellant's treatment of its client's employees.
Furthermore, RO 2 denied allowing a co-worker (CW)(male) to be improperly
involved in appellant's work assignments, and she denied that the CW
had any input in having projects removed from appellant's workload.
RO 2 stated that she only consulted with the Director before making any
changes in an employees' workload.
The CW contends that clients often called him asking questions relating
to the agency. He states that some clients did call and complain to
him about appellant's behavior, attitude, or the manner in which she
conducted herself with them. He states that he refused to discuss such
complaints and would direct them to RO 2.
Concerning appellant's issue four, RO 2 states that a manual published
in 1991 is appellant's only example of RO 2 allegedly not distributing
information equally to her staff. Appellant alleges that the CW was the
only person given a copy of the manual. RO 2 stated that the manual was
a guidebook that was issued before RO 2 became Branch Chief and while
the CW was Acting Chief. RO 2 states that she had nothing to do with
this issue. When appellant informed RO 2 that she needed a copy of the
guidebook, RO 2 got a copy and had it reproduced for all loan specialists.
RO 2 contends that she equally shared with every member of her staff,
information dealing with their program area.
RO 2 admits that she denied appellant the use of a Government Owned
Vehicle (GOV) to take home, in accordance with Departmental Policy issued
by RO 1, on February 14, 1994, and also outlined in 31 U.S.C., 1344.
RO 2 states that appellant frequently used the GOV for travel from the
office to her home for field work the following day and then would return
the GOV the day after the field trip.
RO 2 states that she limited appellant's overnight use of a GOV
in accordance with agency and Federal requirements but also as a
protection for appellant to avoid improper use which carried heavy
sanctions. She explains that this restriction came about as a result
of an incident where appellant abused her GOV privileges by failing to
return a vehicle following the completion of her work at a work site.
According to the record, following appellant's visit to the site, RO
2 received a complaint in writing from officials. The complaint stated
that appellant stayed at the site, chatting about personal concerns and
told the Property Manager that she had to stay there the full workday.
RO 2 adds that she informed appellant in writing that limiting her
overnight use of a GOV for transportation to and from her residence
would not impede her ability to perform her field work. The Director
also stated that appellant had not been denied the use of a GOV, but is
not allowed to take the vehicle home over-night.
Finally, with regard to appellant's final issue, RO 2 denied any
involvement with the CW's alleged spying on appellant. She stated that
on one occasion the CW sent her an inter-office mail message regarding an
incident concerning a telephone conversation where appellant asked CW to
leave the area near her desk. The Director stated, in his affidavit, that
appellant came to him alleging that the CW was spying on her for RO 2.
He states that he met with both CW and RO 2 and told them he did not
want anything that could appear to be monitoring appellant. The Director
also states that he found no basis for appellant's complaint.
Reviewing, the facts surrounding appellant's issues three through
five, the Commission finds that the agency successfully rebutted
any inference of discrimination appellant may have established by
articulating a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981). The Commission also finds that appellant has failed to show
that the explanations provided by the responsible agency officials were
pretext for prohibited discrimination. As for the CW's alleged conduct,
the Commission finds that appellant failed to provide any persuasive
evidence other than her bare assertions which would substantiate her
allegations.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision and find that appellant has failed to
prove, by a preponderance of the evidence, that the agency discriminated
against her.
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").
FROM THE COMMISSION:
Oct 16, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 Based on our review of the record, it appears that appellant alleges
quid pro quo harassment only with respect to her first issue concerning
the Field Office Manager questioning her about an alleged sexual
relationship with a Director.
2 In a September 5, 1995, letter to the agency, appellant states:
"On November 4, 1993, I believe that [RO 1] was trying to make several
points with his inquiry, including why he had not been a recipient of
sexual favors from me if I was handing them out all over the office.
I felt that he was soliciting sexual favors from me in exchange for
consideration of my request to change the EPPES narrative and rating."