0120081288
05-12-2008
Deborah R. Burton, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Deborah R. Burton,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120081288
Agency No. 075400040
DECISION
On January 16, 2008, complainant filed an appeal from a final agency
decision, dated December 13, 2007, regarding her equal employment
opportunity (EEO) complaint claiming unlawful 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 appeal is accepted in accordance
with 29 C.F.R. � 1614.405(a).
BACKGROUND
During the relevant time, complainant worked as an Administrative Support
Assistant, GS-0303/07, at the agency's Weather Forecast Office in Mobile,
Alabama. Complainant was the only female employee at the facility, with
the exception of a student trainee. Believing that a male co-worker
was harassing her, due to her sex, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On January 24, 2007, complainant filed a formal complaint claiming that
the co-workers actions created a hostile work environment.
In the instant final decision, the agency noted the following incidents
presented by complainant in support of her claim:
(1) On August 3, 2006, after sending the alleged harasser (hereinafter
"Employee P") an e-mail requesting that he complete a leave slip for
sick leave or initial his time car, Employee P stopped complainant in
the entrance to the Operations area, asked her if she was doubting that
he had "chigger bites on his ankles", unbuckled his belt and dropped
his jeans to the floor and started pointing to his ankles.
(2) After returning from administrative leave, on August 15, 2006,
Employee P asked complainant, "Do you want to frisk me to make sure I'm
clean?"
(3) On December 19, 2006, Employee P approached complainant about an
issue concerning his timecard and asked her, "What's the crisis today?"
Later that day, Employee P brought over a credit card statement to her
desk and tossed it across the counter into her face and said he could
not get "into the system" and that he was not going to reconcile the card
and turned and walked away. Complainant then picked up the paperwork and
followed him down the hall, intending to give the paperwork back to him,
told him that it was not her problem, and that he had to get in the system
and reconcile the card, to which he rudely replied, "What about his don't
you understand, I told you I can't get in the system and that's it."
(4) In an attempt to incite, embarrass, and belittle complainant in the
presence of others, on December 22, 2006, Employee P began complaining
in the Operations area that she had parked illegally in one of the
"handicap slots." He also asked her in front of other employees, if
she was disabled.
(5) Employee P often glares at her as a means to intimidate her.
(6) Employee P is uncooperative, resulting in her having to answer
questions about why she needs whatever she needs from him, has to ask
him for things many times, has to listen to him complain, and has to
print or recreate paperwork she needs back from him.
(7) Despite advising Agency management about the harassment, management
has failed to take effective action to halt the harassment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
she was subjected to discrimination as alleged.
As the office manager, complainant's duties include keeping time and
attendance records. According to the agency decision, on August 2, 2006,
complainant sent an e-mail to Employee P requesting a leave slip for the
sick leave he had taken on July 17, 2006. Complainant explained that,
in the alternative, P could come into the office to initial his time
card. The next morning, Employee P stopped complainant in the office
and explained that he had "chigger bites" and that was why he used sick
leave. Complainant purportedly responded that she was not questioning
his reason for the leave, but only needed him to sign his time card.
According to complainant, Employee P then "undid his pants and dropped
them to the floor" to show her the bites on his ankles. One witness saw
the incident occur, while another overheard what happened but did not
see Employee P pull his pants down.
Complainant reported the matter to complainant's supervisor, who then
called Employee P's second-line supervisor (who is also complainant's
immediate supervisor), the Meteorologist in Charge (MIC). The MIC spoke
with complainant and the two witnesses, and then contacted the regional
office as well as Human Resources. That day, Employee P was told to go
home on administrative leave until he was instructed to return to duty.
During Employee P's absence, an investigation was conducted.
On August 15, 2006, upon Employee P's return from administrative leave, he
said to complainant "Do you want to frisk me to make sure I'm clean?"
Complainant alleged that during December 2006, Employee P became very
"confrontational." For example, he asked her "What's the crisis
today?" On another occasion he purportedly threw his credit card
statement into her face saying he could not get it into the system
and had no intention of reconciling the statement. When complainant
attempted to give him back the document, he said "What about this don't
you understand . . . ." The agency found that Employee P had poor
administrative skills, often waited until the last minute to complete
paperwork, and had trouble with computers.
In late December 2006, complainant stated that because it was raining,
she temporarily parked in a "handicap spot" to bring packages into the
office. When she became preoccupied with work matters, complainant failed
to move her car. Employee P allegedly harassed complainant about her
actions, embarrassing her in front of the office. Employee P attested
that he has a disabled girlfriend and finds it is "frustrating not to
be able to find a parking spot."
Thereafter, on February 12, 2007, complainant's first-line supervisor
issued Employee P a Notice of Proposed Five Day Suspension, charging him
with "Conduct which Violates the Common Decency." The notice discussed
the pants incident, the credit card statement incident, and the parking
space remarks. The MIC agreed with the proposal and Employee P was
suspended from July 23, 2007 until July 30, 2007.
The agency concluded that while the alleged conduct occurred, complainant
failed to present a prima facie case of hostile work environment. The
agency noted that it did not condone Employee P's behavior (i.e. dropping
his pants in the workplace). However, the agency determined that this
action was not taken in a sexual manner. The agency found, instead,
that Employee P had dropped his pants to make the point that he had a
condition which justified his use of sick leave. The incident occurred
where any employee, male or female, could have witnessed his behavior.
Moreover, the agency stated Employee P offered to show his bites to a male
co-worker who walked by. The agency found that Employee P's actions were
"childish, boorish, and inappropriate" but were not "clearly hostile or
patently offensive so as to substantially affect the work environment
. . . ."
With respect to complainant's claim of retaliatory harassment by Employee
P, the agency concluded that she failed to establish that the mistreatment
was based on her EEO activity. The events that followed complainant's
"opposition", on December 22, 2006, would not dissuade a reasonable
person from making a charge of discrimination.
Even assuming arguendo that complainant did establish that she was
subjected to actionable harassment based on her sex and prior EEO
activity, the agency concluded that it took prompt and appropriate
corrective action. Management sent Employee P home immediately following
the August 3, 2006 incident, and conducted an investigation. Employee P
was instructed not to communicate directly with complainant. Finally,
Employee P was issued a five-day suspension.
CONTENTIONS ON APPEAL
On appeal, complainant argues that Employee P "has had trouble getting
along with several staff members but his actions toward me were elevated
to an unacceptable level because he believed he could get away with his
outrageous behaviors because he is a man and I am a female." After filing
her EEO complaint, she contends that the harassment continued. Employee P
accused complainant of harassing him, damaging his personal property and
identity theft. Further, complainant asserts that "it took management
a year to take any punitive action during which time [Employee P's]
bizarre behaviors continued . . . ."
In response, the agency requests that we affirm its finding of no
discrimination. The agency also asserts that the complainant has unfairly
raised new incidents of alleged harassment by Employee P (i.e. Employee
P wrote on his desk blotter that complainant had "screwed [him] off"
and reported to a supervisor that she had harassed him.) These incidents
were not counseled or investigated. The agency argues that complainant
should not be permitted to selectively introduce new events on appeal.
Regarding her contention that a prima facie case has been established,
the agency contends that even if the incidents did constitute a severe or
pervasive hostile work environment, complainant did not establish a causal
connection between the incidents and her protected bases. Acknowledging
that some witnesses suggested that Employee P may have dropped his pants
in front of complainant due to her sex, the agency found the testimony
was speculative and uncorroborated.
The agency agrees that Employee P's conduct is "inexcusable and
embarrassing," but that it is not the type of behavior to support of
violation of Title VII. According to the agency, complainant has not
shown that the actions were objectively abusive or hostile or taken to
harass her because of her sex.
Regarding the basis of reprisal, the agency asserts that complainant did
not engage in any "opposition" until December 22, 2006. The agency
further asserts that complainant did not show that she was harassed by
Employee P due to her EEO activity.
Finally, the agency believes that management responded immediately and
took appropriate corrective action. An investigation was immediately
initiated following the August 3, 2006 incident, and Employee P was
placed on administrative leave. Thereafter, Employee P was suspended
for five days and ordered to avoid contact with complainant.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
In order to establish a prima facie case of sexual harassment, the
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). 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).
Based on a review of the instant record, the Commission finds that
complainant has failed to establish a prima facie case of sexual
harassment. Complainant has not shown that Employee P's conduct was
based on her sex. With respect to the August 2, 2006 incident, Employee
P attested that he would have "dropped his pants" to a man or woman
that was challenging him about taking sick leave. A male co-worker who
overheard the exchange, and came to see what was going on, attested that
Employee P asked him if he wanted to see his chigger bites. Further,
the MIC attested that Employee P "has been giving us problems for years"
and has been angry with (male) supervisors and co-worker in the past.
Another agency official stated that Employee P "has been generally
uncooperative with several other persons in the office . . . ."
Similarly, with respect to complainant's claim of retaliatory harassment,
the record does not show that Employee P's actions were motivated by
complainant's use of the EEO process. While Employee P's conduct was
unprofessional, offensive, and belligerent, we do not find that the
events were based on complainant's sex or in reprisal for her prior EEO
activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 12, 2008
__________________
Date
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0120081288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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