Valerie K. Welle, Complainant,v.Donald L. Evans, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionApr 14, 2004
01A41228_r (E.E.O.C. Apr. 14, 2004)

01A41228_r

04-14-2004

Valerie K. Welle, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.


Valerie K. Welle v. Department of Commerce

01A41228

April 14, 2004

.

Valerie K. Welle,

Complainant,

v.

Donald L. Evans,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A41228

Agency No. 00-63-00061D

Hearing No. 260-A1-9071

DECISION

Complainant appeals to the Commission from the agency's December 11, 2003

decision finding no discrimination. Complainant alleges discrimination on

the bases of sex (female), disability (depression and kidney disease), and

retaliation when she was subjected to a sexually hostile work environment

and subsequently terminated. On September 30, 2003, after a hearing, an

Administrative Judge (AJ) issued a decision finding no discrimination.<1>

Specifically, the AJ found that complainant failed to establish that

she was subjected to a hostile work environment. With regard to the

termination, the AJ found that, assuming complainant established a

prima facie case, the agency articulated a legitimate, nondiscriminatory

reason for its actions which complainant failed to rebut. The agency

issued a decision on December 11, 2003, adopting the AJ's decision.

Complainant now appeals from the agency's December 11, 2003 decision.

The record indicates that during the relevant time, complainant was

employed by the agency responsible for conducting the decennial census.

Complainant was hired as the Assistant Manager for Administration of

the Des Moines Local Census Office. She was responsible for ensuring

that appropriate paperwork was filled out to hire sufficient temporary

employees to staff the Des Moines Local Census Office, and to ensure

that employees of the office were paid in a timely manner.

We find that complainant has failed to show that she was subjected to a

sexually hostile work environment. According to complainant's testimony,

she was subjected to a sexually hostile work environment when there were

"conversations about femi-Nazis, how it was impossible to find a virgin

anymore for sacrifice; . . . [and when co-workers] got their pagers, they

were set to vibrate and . . . would talk about vibrators and . . . the

benefits of such devices." She alleges that co-workers talked about

"dumb blondes and they talked about both [B]lack and Hispanic women, and

imitated them." Complainant argues that when "someone blew their nose,

they would make jokes about blow jobs," which resulted in a conversation

about "blow-up dolls."

Complainant argues that sexual jokes were told including jokes about

orgasms. Complainant testifies that on one occasion, her co-workers,

being census workers, made jokes about "premature enumeration."

This comment lead to talk about "[Bob] Dole and erectile dysfunction."

We first address complainant's sexual harassment claim. Hostile work

environment sexual harassment is actionable only if the harassment

to which complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of his employment. Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). To establish

a prima facie case of hostile work environment sexual harassment, a

complainant must show that: (1) she was subjected to unwelcome conduct

related to her gender, including sexual advances, requests for favors, or

other verbal or physical conduct of a sexual nature; (2) the harassment

complained of was based on sex; (3) the harassment had the purpose or

effect of unreasonably interfering with her work performance and/or

creating an intimidating, hostile, or offensive work environment; and

(4) there is a basis for imputing liability to the employer. McCleod

v. Social Security Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999)

(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).

Our review of the record reveals that the AJ correctly determined that

the complained of conduct did not rise to the level of actionable sexual

harassment. First, the record is devoid of witnesses to corroborate a

sexually hostile work environment. The closest evidence of corroboration

is found in a co-worker's affidavit. He indicates that he was present

during the joke about "premature enumeration." However, following the

joke, he affirms that complainant rebutted with a joke of her own, to

which complainant admitted during the hearing. Specifically, after the

"premature enumeration" joke, complainant recounted a story about working

in a bait shop, making fishing lures, and being promoted to a "master

baiter." Most of complainant's incidents are not corroborated. However,

assuming arguendo that they were corroborated, there is no indication

in the record that such conduct was based upon her sex. Therefore, we

find that complainant has not shown, by a preponderance of the evidence

that she was subjected to a sexually hostile work environment.

With regard to the termination, we find complainant has not shown

discrimination. We will assume for this decision, without making

a finding on whether complainant is a person with a disability,

that complainant established a prima facie case of sex, disability

and retaliation. However, the agency articulated a legitimate,

non-discriminatory reason for the termination which complainant failed to

show is pretext for discrimination. Specifically, the record indicates

that complainant was terminated because she had problems processing

payroll. The Regional Director that terminated complainant reasoned

that if complainant was having a problem processing payroll at the time

of her termination, she was "probably going to have problems when [the

census office] had a larger number of employees." Complainant failed to

prove that the agency's reason was pretext for discriminatory animus.

Complainant has not shown, by a preponderance of the evidence, that

she has been discriminated against on the bases of sex, disability

or retaliation.

The agency's decision finding no discrimination is AFFIRMED.

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

April 14, 2004

__________________

Date

1The AJ's September 30, 2003 decision

contained a typographical error which the AJ rectified by letter dated

November 26, 2003. The November 26, 2003 letter indicates that page seven

of the decision contained an error. Specifically, the last sentence

on page seven read "[for] the above reasons, I recommend a finding

of discrimination," but should have read "[f]or the above reasons,

I recommend a finding of no discrimination."