0120110998
09-19-2014
Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120110990
Agency No. BIA-09-0014
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 15, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency FAD which found that Complainant failed to show that she was subjected to harassment or discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Cook Corrections, GS-06 at the Agency's Blackfeet Agency Corrections Office in Browning, Montana. Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when:
1. October 9, 2008, her supervisor told her about him having a blood clot in his private parts close to his penis and that he needed to undergo an operation to have it removed;
2. On October 20, 2008, her supervisor yelled at her telling her that she was in big trouble, when he questioned her about having an inmate in her car and told her inmates are not allowed in her car;
3. On November 10, 2008, her supervisor delivered her performance appraisal to her and said that he would have rated her higher if he had done it and then he laughed;
4. On December 31, 2008, her supervisor informed her that all non-essential employees could leave work one hour early for the day because of the bad winter weather conditions, but he chose not to tell her until 10 minutes prior to her quitting time; and
5. Her supervisor would come into the Complainant's work area in the kitchen on a weekly basis and sometimes at least three times a week, claiming he was checking the fire extinguisher. He would proceed to look around the kitchen for no apparent reason, when the requirement to check the fire extinguisher is only once a month.
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant failed to show that she was subjected to harassment and failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. With respect to claim 1, Complainant failed to establish that she was subjected to sexual harassment. In summary, the Agency found that while in the kitchen, Complainant's supervisor asked her for the address of the VA hospital. She asked why he needed to go there and he responded that he had a blood clot and needed surgery. She asked where the blood clot was located and he said his penis. When she did not seem to understand he pointed to his groin. Thereafter, Complainant went to Human Resources (HR) and maintained that the supervisor had used the word penis and had pointed to the area. An immediate investigation was conducted. Witnesses indicated that Complainant had acknowledged that she was the one that lead the discussion and asked about specifics of the surgery. The investigation also noted that Complainant frequently sought out the supervisor for casual chats even after her harassment complaint. With respect to claim two, the supervisor acknowledged that he told Complainant that she should not have an inmate in her car smoking. The supervisor had been warned by Internal Affairs that this prohibited practice had to be discontinued. The supervisor admitted that he might have yelled because he believed that they would both be disciplined if Complainant was caught.
Regarding claim three, management maintained that Complainant's performance appraisal was completed by the Director as the supervisor was new and had not been in the office long enough that he could complete the appraisal. As he had day-to-day contact with Complainant, the supervisor merely opined that she would have been given a higher rating if he had been allowed to complete the appraisal. Management explained that with respect to claim four, Complainant's supervisor was not involved. Another supervisor told Complainant that all employees could leave early because of the weather. Complainant was not finished with some of her duties in the kitchen so she decided to stay and finish them. When she finished her duties she made the supervisor aware that she was leaving. With respect to claim five, after Complainant noted that she did not feel comfortable with the supervisor coming to check the cleanliness of the kitchen and the state of the fire extinguisher on a daily basis, the Director assigned this duty to the Lead Correctional Officer. Management noted that while fire extinguisher safety checks were usually done on a monthly basis, it was not uncommon for supervisors, and especially new supervisors, to check things more frequently. The Agency found that Complainant failed to provide any evidence which suggested that the supervisor's actions were unwelcome. The Agency found that the evidence gathered in the investigation showed that the supervisor had not been inappropriate with Complainant. Further, the Agency found that with respect to Complainant's disparate treatment claims based on sex and reprisal, the evidence showed that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext. Regarding the harassment claims, the Agency found that the incidents complained of were isolated matters that were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant did not provide a brief. The Agency however requested that the FAD's finding be affirmed.
ANALYSIS AND FINDINGS
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 Agency's final decision. With respect to Complainant's sexual harassment claim, it is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a claim 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 McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982).
In the instant case, we find that while Complainant is a member of a statutorily protected class, she failed to show that she was subjected to unwelcome conduct related to her sex, that the harassment complained of was based on her sex, or that the harassment had the purpose or effect of unreasonably interfering with her work performance or and/or creating an intimidating, hostile or offensive work environment. We find the record shows that the supervisor asked for directions/address to the VA hospital and Complainant initiated a conversation with him. She asked questions that resulted in the information being provided. Furthermore, there is no indication that the supervisor brought this up again and so we find that this one time incident was not severe or pervasive enough to establish a hostile work environment.
With respect to the remaining claims, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. Complainant has not provided any evidence which indicates that the Agency's nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved in this complaint. We also find that the remaining incidents, when considered together, are not severe or pervasive enough to establish a hostile work environment.
Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred. The Agency's FAD is AFFIRMED.
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
_____9/19/14_____________
Date
2
0120110990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110990