01964401
10-01-1998
Robert Williams, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Robert Williams v. Department of the Navy
01964401
October 1, 1998
Robert Williams, )
Appellant, )
)
v. ) Appeal No. 01964401
) Agency No. 93-63139-001
John H. Dalton, ) Hearing No. 370-95-X2302
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
DECISION
On May 13, 1996, Robert Williams (appellant) timely appealed the
Department of the Navy's (agency) final decision, dated April 15, 1996,
concluding he 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.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
The record establishes that at the time of the events at issue,
appellant was employed by the agency as an Accounting Technician in the
Comptroller's office at the Naval Air Reserve in Alameda, California.
On March 18, 1993, appellant filed a formal EEO complaint with the agency,
alleging that because of his race (black), sex (male) and/or retaliation
for engaging in prior protected activity:
(1) he was subjected to a hostile work environment when, at a January
7, 1993 birthday celebration, a management official gave him a stuffed
toy monkey and his coworkers gave him several birthday cards which he
considered insulting; and
(2) he was not selected, in January 1993, for promotion to the position
of Supervisory Financial Operations Analyst, GS-501-7/9, advertised
under vacancy announcement no. 92-98.
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).
The evidence of record established that on January 7, 1993, during
a luncheon attended by male and female coworkers of various racial
backgrounds, appellant's manager (the acting Comptroller) (white female)
gave him a stuffed toy monkey as a birthday gift. Appellant testified
that he viewed the gift as insulting and harassing because blacks have
historically been referred to as monkeys and because he believed the
elongated toes and fingers conveyed vulgar sexual implications. Appellant
also stated that he objected to the birthday cards he received at the
luncheon. The first, from a coworker (American Indian female) contained
the message: "Here Are Some Big Bucks For Your Birthday!" Opening the
card revealed a picture of two large dollar bills. The second card,
signed by a group of appellant's coworkers, had the following message:
"You're a year older Big Boy, so try to keep a stiff one . . . upper lip,
that is!!" Appellant testified that he viewed the terms "big bucks" and
"boy" as racially derogatory. Neither card was signed by the manager
who gave appellant the monkey.
The manager denied any discriminatory intent to the gift or cards.
She stated that it was customary in the department to go out for lunch on
employee birthdays. She said she bought the stuffed monkey because she
thought it was "cute" and asserted she had given other employees stuffed
animals in the past. She denied having any intent to hurt appellant
and stated she did not know that a monkey might have offensive racial
connotations to a black man. Two black female coworkers of appellant
also did not attribute any hostile or discriminatory motive to the
supervisor, testifying that she often gave gifts of a similar nature to
other employees in the department.
With regard to appellant's claim concerning his nonselection for
promotion, the evidence established that he applied for the position,
was rated as "highly qualified", and was interviewed on January 14,
1993, along with four other candidates. The selection was made by a
three-member board. One of the board members was the acting Comptroller,
the same manager who gave appellant the monkey. The position was awarded
to a white female employee. Board members stated that they determined
that supervisory skills and a financial accounting background were
their two primary criteria for the selection, and they asked all the
candidates the same questions designed to elicit information relevant
to these factors. Board members said that while appellant performed
satisfactorily during his interview, they determined that the selectee's
performance was much stronger. They conceded that appellant had
strong technical skills, but said he did not display much insight into
the role of a supervisor in his responses to the interview questions.
The selectee, on the other hand, conveyed the impression that she could
handle any situation using her good problem-solving abilities.
The record also established that appellant's retaliation claim arose from
the fact that in February 1992, less than a year before his nonselection,
he contacted the office of his Congressman, requesting an investigation
into the hiring and promotional practices at Alameda, which he alleged
were biased against blacks and other minorities. The Congressman
conducted an inquiry based on this allegation. However, there was no
evidence presented to suggest that the management officials involved in
the selection decision at issue were aware that the complaint to the
Congressman's office originated with appellant. Appellant testified
that he requested anonymity from the Congressman, and never spoke with
any relevant management officials about his complaint.
On February 2, 1996, following a hearing at which eight witnesses
testified, the AJ issued a decision recommending a finding that no
discrimination had occurred. First, the AJ concluded appellant had
failed to establish a case of race or sex-based harassment because
the evidence did not indicate that the conduct complained of was so
severe or pervasive that it created a hostile working environment.
With regard to appellant's allegations of illegal retaliation, the AJ
concluded appellant had not established a prima facie case because
the evidence did not support a finding that the relevant management
officials were aware of appellant's prior oppositional activity.
Finally, while finding appellant had raised an initial inference of
race and/or sex discrimination with regard to his nonselection for
promotion, AJ went on to note that agency witnesses had articulated
legitimate, nondiscriminatory reasons for the actions taken in this
matter. The AJ further held that appellant failed to establish that
the agency's articulated reasons for its actions were unbelievable or
that its actions were more likely motivated by discrimination.
On April 15, 1996, the agency adopted the findings 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 appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's findings of no discrimination. The Commission notes
that the AJ made specific credibility findings based on the demeanor
of witnesses at the hearing. Such findings are entitled to deference
by the Commission. Muller v. United States Postal Service, EEOC
Request No. 05900634 (October 12, 1990). See also, Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951). Our independent review
of the record reveals those credibility findings to be consistent with,
and corroborated by, the weight of the other evidence presented.
The Commission takes special note of appellant's claim that he was
subjected to racial and sexual harassment. 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 a careful
review of all the evidence of record, and considering all of appellant's
arguments presented on appeal,<1> the Commission concurs with the AJ's
holding that appellant has failed to establish that he 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 1, 1998
__________________ _______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 Including appellant's assertion that the AJ displayed a lack of
understanding about the racially sensitive nature of the incident which
formed the basis of his harassment allegations.