01A22550
05-08-2003
Brandy Chapa-Tesar, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Reclamation), Agency.
Brandy Chapa-Tesar v. Department of the Interior
01A22550
05-08-03
.
Brandy Chapa-Tesar,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Reclamation),
Agency.
Appeal No. 01A22550
Agency No. WBR-00-018
Hearing No. 320-A1-8042X
DECISION
Complainant initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the complainant's appeal from the agency's final order in the
above-entitled matter pursuant to 29 C.F.R. � 1614.405.
The issue presented in this appeal is whether complainant proved, by a
preponderance of the evidence, that she was discriminated against because
of her sex (female) and national origin (Hispanic) and in retaliation for
engaging in previous EEO activity when she was subjected to a hostile work
environment caused by threats, with sexual harassment beginning in 1999.
The agency complied with all procedural and regulatory prerequisites.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On October 18-22, 2001, a hearing was held. Subsequently, the AJ issued
a decision finding no discrimination. Thereafter, the agency issued a
final decision adopting the AJ's decision as its final order.
The record indicates that complainant was employed by the agency as a
Voucher Examiner. She became friends with B-1, a GS-14 Supervisory
Accountant. Although B-1 was a supervisor at the same facility as
complainant, he did not directly supervise her. B-1 and complainant,
who were both married, became involved in an extra-marital relationship.
The relationship began in 1997 and continued until August 1999.
Based on documentation contained in the record, i.e., the hearing
testimony, copies of letters, telephone records and transcripts of
telephone messages, the AJ reached the following conclusions:
in August 1999, complainant was told by B-1 that he wanted to end
their relationship;
complainant, who had thought B-1 would leave his wife, became despondent;
complainant, on an almost daily basis, began to call and leave messages
for B-1;
these messages were, at times, angry, threatening and apologetic;
in September 1999, complainant began sending letters to B-1's wife
about her relationship with B-1;
between August 1999 and January 2000, complainant began receiving prank
telephone calls and telephone calls where the caller would just hang up;
complainant and her husband began receiving letters from an anonymous
source, e.g., a letter to complainant's husband, containing a hotel key,
which stated, �Ask you [sic] wife what she did in this hotel room;�
a letter was sent to Personnel that alleged complainant and another
employee were smoking marijuana and asked others to buy it;
another letter to complainant's husband stated, among other things, that
he should tell complainant to return a pager and �no more calls from
[a male name] about HIV;�
a letter was sent to the Jefferson County Mental Health Division,
which maintained that complainant was suicidal; and
B-1 received a telephone call from an individual posing as a private
investigator.
In January 2000, A-1, the Director of the Finance Office and B-1's
supervisor, received an e-mail from an employee indicating that
complainant and B-1 were �sparking inter-office controversy.� The
employee further indicated that complainant was �flagrantly� discussing
her affair with B-1 with other employees. At the time, B-1 was in a
travel status. A-1 traveled to B-1's location and discussed the matter
with him. B-1 acknowledged that there had been a relationship and
indicated that he had tried to end the affair, but complainant was making
it difficult. A-1 directed B-1 to contact A-2, the Assistant Director of
Human Resources, who advised B-1 to send a letter to complainant asking
her to cease all communications with him. B-1, by e-mail dated January
31, 2000, complied with A-2's advice.
Complainant met with Agent T of the Federal Protective Service. She asked
him to investigate her receipt of the anonymous letters. Complainant
maintained that B-1 was sending the letters and was harassing her.
Although Agent T spoke to A-1 and conducted an investigation, he later
testified at the hearing that he was unable to substantiate who was
sending the letters to complainant. On January 31, 2000, complaint,
by e-mail, informed A-2 that she did not want to take action against
B-1 at that time. If the harassment continued, complainant indicated
that she would take necessary action. On February 4, after accusing
B-1 of staring at her, complainant sought EEO counseling with regard
to her harassment claim. B-1 also sought EEO counseling regarding his
claim that complainant harassed him. On or about February 14, 2000,
agency officials provided both complainant and B-1 specific workplace
restrictions that were designed to minimize their contact. Subsequently,
B-1 was moved to a different building. An investigation by management
into the matter determined that no sexual harassment had occurred.
However, B-1 was detailed to another city until May 31, 2000.
The AJ found that complainant failed to establish a prima facie case of
sexual, retaliatory or national origin harassment. Complainant's claim,
according to the AJ, rested on two separate types of conduct, i.e.,
the letters and phone calls that she received. Among other things,
the AJ found insufficient evidence in the record to establish that the
conduct in question was clearly related to complainant's national origin
or prior EEO activity. Moreover, the AJ found that there was no basis
for imputing liability to the agency, because there was no evidence that
the anonymous letters sent to complainant were from any agency official,
including B-1. In this regard, the AJ relied on the testimony of Agent
T that although he personally suspected that B-1 sent the letters to
complainant, he could not prove that this was the case. This reasoning,
we find, would also apply to the anonymous telephone calls received by
complainant and her husband.
EEOC Regulation 29 C.F.R. � 1614.405(a) provides that 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
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency action
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
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
____05-08-03______________
Date