Cecelia A. Murphy, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 15, 2010
0120091774 (E.E.O.C. Oct. 15, 2010)

0120091774

10-15-2010

Cecelia A. Murphy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.




Cecelia A. Murphy,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091774

Hearing No. 420-2008-00162X

Agency No. 200L-0586-2007103853

DECISION

On March 9, 2009, Complainant filed an appeal from the Agency’s January

29, 2009, final decision concerning her equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII

of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §

2000e et seq. The Commission deems the appeal timely and accepts it

pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,

the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as

a Police Officer at the Agency’s G.V. Sonny Montgomery VA Medical Center

facility in Jackson, Mississippi. On September 21, 2007, Complainant

filed an EEO complaint alleging that the Agency discriminated against

her on the basis of sex (female) when, on August 22, 2007, her supervisor

(S1) picked a penny up off the floor and told her to move so that people

would not think he was “eating her p----.”

At the conclusion of the investigation, the Agency provided Complainant

with a copy of the report of investigation (ROI) and notice of her

right to request a hearing before an EEOC Administrative Judge (AJ).

Complainant requested a hearing but the AJ denied the hearing request on

the grounds that Complainant had failed to comply with the June 9, 2008

Scheduling Order and the September 19, 2008 Order by not providing any of

the information requested by the AJ. The AJ remanded the complaint to the

Agency, and the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

Initially, the FAD assumed arguendo that Complainant had established

a prima facie case of sexual harassment. The FAD determined that the

Agency had rebutted Complainant’s claim by showing that the alleged

conduct could not be found to have occurred, was not unwelcome, and was

not sufficiently severe or pervasive. Specifically, the FAD concluded

that Complainant never reported the alleged incident to her superiors and

only informed two co-workers and the EEO Manager. Once the Acting Chief

(AC) became aware of Complainant’s allegations, he separated Complainant

from S1. Management’s subsequent investigation yielded no conclusive

findings since there were no witnesses to the alleged incident and the

only surveillance video of the conversation contained no sound or any

indication of an argument. Further, the surveillance video revealed

that after Complainant bent down to pick up the penny, her departure

seemed normal and she was not crying as she alleged. Complainant’s

co-workers stated, however, that she appeared emotional, upset, and angry

when discussing the incident with them. Complainant enlisted another

officer to relieve her from duty post, went home for the day, later

returned to seek medical attention, and took leave for the next two weeks.

The FAD speculated that a possible motivation for Complainant’s

allegations and a reason for her observed temperament was S1’s statement

to her before the incident that her yearly psychiatric evaluation was

months overdue and that her badge, credentials, and weapon would have to

be pulled as result if she did not undergo the examination scheduled for

the following week. The FAD noted that Complainant’s own testimony

focused more on the issue of the psychiatric evaluation rather than

the comment allegedly made by S1. In addition, the FAD found that the

record indicated that other police officers believed that it was not

unusual for Complainant and S1 to engage in similar banter. The FAD

found that Complainant failed to prove by a preponderance of evidence

that management’s stated reasons were pretextual. Accordingly, the FAD

concluded that Complainant had not been subjected to sexual harassment

as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that a non-biased viewer of the

surveillance video would find that she lost her composure after the

alleged incident. Further, Complainant alleges that the AJ acted

with bias and that she did not receive fair and impartial treatment.

As a result, Complainant requests that the Commission reverse the FAD.

The Agency contends that the AJ exhibited no bias and properly dismissed

Complainant’s hearing request because she did not respond in a timely

manner to his order. Further, the Agency maintains that Complainant

failed to prove by a preponderance of the evidence that the alleged

incident occurred, was unwelcome, or was sufficiently severe or pervasive.

Accordingly, the Agency requests that the Commission affirm the FAD.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de

novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), at 9-15 (Nov. 9, 1999) (explaining that the de novo

standard of review “requires that the Commission examine the record

without regard to the factual and legal determinations of the previous

decision maker,” and that EEOC “review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission’s

own assessment of the record and its interpretation of the law”).

AJ’s Sanction

The Commission must first address the AJ's decision to dismiss

complainant’s request for a hearing and remand the matter to the Agency.

The Commission's regulations afford broad authority to AJs for the

conduct of hearings, including the authority to sanction a party for

failure without good cause shown to fully comply with an order. See 29

C.F.R. § 1614.109 et seq.; Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 7-8 (Nov. 9, 1999).

Where a party, inter alia, fails to respond to an order of an AJ,

the AJ may, as appropriate, take action against the non-complying

party pursuant to 29 C.F.R. § 1614.109(f)(3), i.e., an AJ may: (1)

draw an adverse inference that the requested information would have

reflected unfavorably on the non-complying party; (2) consider the

requested information to be established in favor of the opposing party;

(3) exclude other evidence offered by the non-complying party; (4)

issue a decision fully or partially in favor of the opposing party: or

(5) take other action deemed appropriate. Before sanctions are imposed,

the Commission requires that the AJ notify the parties of what sanctions

or other actions may be imposed for failure to comply with the AJ's

order. EEO-MD-110, at 7-6.

In his dismissal notice, the AJ indicated that Complainant failed to

comply with the Scheduling Order, or with the September 19, 2008 Order

extending the deadline for discovery completion. The AJ noted that

Complainant was informed that “a failure, in the absence of a timely

request for an extension, to respond to the order, would be considered

abandonment or a waiver of her request for a hearing.” Further, the

AJ stated that Complainant failed to submit any information requested in

the Scheduling Order and she failed respond to the Agency’s November

24, 2008 Motion for Sanctions. The AJ determined that to hold a

hearing where there was no indication that Complainant would call any

witnesses would result in a waste of resources. As a result, the AJ

remanded the complaint to the Agency for a FAD. The Commission finds

that the imposition of a sanction in this case was properly in the AJ's

discretion given Complainant's failure to comply with the AJ’s order.

As the sanction of dismissing the hearing request was within the AJ's

discretion, he properly then remanded the case to the agency to issue

a decision on the record.

Sexual Harassment

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion or prior

EEO activity is unlawful, if it is sufficiently severe or pervasive.

Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998)

(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (DC. Cir.1985)); EEOC

Enforcement Guidance on Harris v. Forklift Systems., Inc. (Enforcement

Guidance) at 3, 9 (Mar. 8, 1994). In determining whether a working

environment is hostile, factors to consider are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with

an employee's work performance. See Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court

has stated that: “Conduct that is not severe or pervasive enough to

create an objectively hostile work environment-an environment that a

reasonable person would find hostile or abusive-is beyond Title VII’s

purview.” Harris, 510 U.S. at 22 (1993).

In order to establish a prima facie case of sexual harassment, Complainant

must prove, by a preponderance of the evidence, the existence of five

elements: (1) that she is a member of a statutorily protected class;

(2) that she was subjected to unwelcome conduct related to her sex;

(3) that the harassment complained of was based on her sex; (4) that

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 (5) that there is a basis for imputing

liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,

903 (11th Cir. 1982); see also Oncale v. Sundowner Offshore Serv., Inc.,

523 U.S. 75, 81 (1998) (Title VII “forbids only behavior so objectively

offensive as to alter the ‘conditions' of the victim's employment.”).

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March

8, 1994).

An employer is subject to vicarious liability for harassment if it

is “created by a supervisor with immediate (or successively higher)

authority over the employee.” Burlington Industries, Inc., v. Ellerth,

524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton,

524 U.S. 775, 11b S.Ct 2275, 2292-93 (1998). When the harassment does not

result in a tangible employment action being taken against the employee,

the employer may raise an affirmative defense to liability. The agency

can meet this defense, which is subject to proof by a preponderance

of the evidence, by demonstrating: (a) that it exercised reasonable

care to prevent and correct promptly any harassing behavior; and (b)

the complainant unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Burlington, 118 S.Ct. at 2270; Faragher, 118 S.Ct. at 2293;

Enforcement Guidance Vicarious Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Upon review of the record, the Commission finds that Complainant has

failed to prove, by a preponderance of the evidence, that she was

subjected to sexual harassment. Specifically, the Commission finds

that Complainant failed to present persuasive evidence that the conduct

complained of occurred as alleged. We note that the record does not

contain any witness testimony corroborating either Complainant's or S1's

version of the events. Further, even assuming the incident occurred

as Complainant alleges, S1’s conduct, while inappropriate, was not

frequent, severe, physically threatening, or an unreasonable interference

with Complainant’s work performance. The Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Dep’t Health and Human Serv., EEOC Request No. 05940481

(Feb. 16, 1995). Accordingly, the Commission finds that Complainant

has failed to show that she was subjected to discrimination as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission AFFIRMS

the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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

77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

October 15, 2010

Date

2

0120091774

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120091774