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