01a03091
07-05-2000
Cindy Gergely, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Cindy Gergely v. Department of the Navy
01A03091
July 5, 2000
Cindy Gergely, )
Complainant, )
) Appeal No. 01A03091
v. ) Agency No. 98-39228-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her allegation that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the complainant has established
that the agency discriminated against her based on sex (female) when
she was allegedly harassed by a co-worker.
BACKGROUND
During the period in question, the complainant was employed as a Sales
Clerk at the agency's base in Norfolk, Virginia. The complainant
filed a formal complaint in March 1997 in which she raised the issue
identified above. Following an investigation, the complainant did not
request a hearing and the agency thereafter issued a final decision
(FAD) dated February 16, 2000, finding no discrimination. It is from
this decision that the complainant now appeals.
The complainant alleged that, shortly after being hired, another employee
(Employee A) began harassing her. In particular, the complainant
testified that Employee A told co-workers that she was �bossy,� and
stated further, �[Employee A] acted like she had animosity towards me.
She would talk about me behind my back and I could hear her. When I
would walk up to ask her why she was talking about me, she would deny
she was doing so. She would also ask me unnecessary questions.� In
response, Employee A denied having ever said or done anything to the
complainant that was unwelcome, and, in support of her position, none
of the individuals interviewed during the investigation had ever heard
Employee A refer to the complainant in a derogatory manner.
ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's sex
is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under that basis,
the complainant must show that: (1) she belongs to the statutorily
protected class; (2) she was subjected to unwelcome conduct related to
her membership in that class; (3) the harassment complained of was based
on sex; (4) 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) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). 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).
In this case, the only example of unwelcome conduct the complainant has
identified is being called �bossy� by Employee A. Even assuming that this
is true, the statement does not, by itself, constitute discriminatory
harassment. Furthermore, although the complainant testified that she
heard Employee A �talk behind her back,� she has not identified what
Employee A allegedly said about her. In this regard, we note that
none of the witnesses who provided statements had ever heard Employee A
make derogatory statements about the complainant. For these reasons,
the Commission finds the complainant has not established a claim of
harassment. Accordingly, we find the complainant has not established
that she was discriminated against based on her sex.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that she was discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
07-05-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
01 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.