01A13241_01A13242
01-02-2003
Doris Lynn Lee and Ginger McDill, Complainants, v. Thomas E. White, Secretary, Department of the Army, Agency.
Doris Lynn Lee and Ginger McDill v. Department of the Army
01A13242; 01A13241
January 2, 2003
.
Doris Lynn Lee and Ginger McDill,
Complainants,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 01A13242; 01A13241
Agency Nos. BQECFO9811I0490; BQECFO9905J0180;
BQECFO9908J0220; BQECFO9811I0480
Hearing Nos. 110-A0-8487X; 110-A0-8488X;
110-A0-8489X; 110-A0-8490X
DECISION
Complainants timely initiated appeals from their individual final agency
decisions (FAD) concerning their complaints of 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 appeals
are accepted pursuant to 29 C.F.R. � 1614.405. The appeals have been
consolidated in this decision. For the following reasons, the Commission
affirms both FADs.
The record reveals that during the relevant time, complainants were
employed at the agency's Directorate of Engineering and Housing,
Billeting, Fort McClellan, Alabama, facility. Complainant McDill alleges
that, between April 1997 and 1998 she was harassed, based on her sex,
by her supervisor, S1. For example, she states that S1 was moody, often
calm one minute and explosively angry the next. She further states that
S1 screamed at her in front of customers and fellow employees, humiliated
her, including making inappropriate comments about her facial acne,
and criticized her for any insignificant infraction. Complainant McDill
states that she complained to S2, but S2 did nothing. Complainant McDill
thus sought EEO counseling and subsequently filed a formal complaint
on December 8, 1998, alleging that she was discriminated against,
as described. On February 11, 1999, Complainant McDill was advised,
via memorandum, that her position was being abolished effective April 19,
1999, due to the base closure. Complainant thereafter again sought EEO
counseling and subsequently filed a formal complaint on June 30, 1999,
alleging that she was discriminated against on the basis of reprisal
for her prior protected activity.
Concurrently, Complainant Lee alleges that, between July 1997 and 1998,
she was sexually harassed by S1, who was her co-worker.<1> As an example,
complainant states that S1 once commented on her jeans, said her �ass�
looked good in them, and often described what he would like to do to her.
Complainant Lee also stated that S1 once approached her with a screwdriver
in his hand and asked if she wanted to screw, explaining that he was
looking for a hole in which to put his screwdriver. Complainant Lee
further offers, by example, that on one occasion, S1 wiped his face
and told her he was cleaning off a place for her to sit down. S1 also,
allegedly, on one occasion bunched up his pants to emphasize his groin
and asked complainant if she wanted �some of that.� Complainant goes on
to allege that, on almost a daily basis, S1 acted suggestively toward her
and used profane and vulgar language, including an incident wherein he
explained that if a man shook his penis more than twice after urination,
he was playing with it, so it therefore stood to reason that if a woman
�pat� her genitals more than twice, she was also playing with herself.
Complainant Lee acknowledged that she sometimes participated in
the unprofessional behavior which the record reflects was common to
this office. She argued, however, that S1's comments and actions
went beyond her �cutting up,� and she was offended by his conduct.
Complainant Lee alleges that she told her supervisor at the time, S2,
about S1's offensive behavior, but S2 did not correct the behavior.
Complainant Lee admits, however, that when she told S1 that she was
offended by his comments and behavior, he ceased his offensive conduct.
Complainant Lee further alleges that she was harassed based on her sex by
S2 when, on July 8, 1998, she was sent home. Complainant Lee alleges she
was sent home so that S2 could �go through her files.� Complainant Lee
thus sought EEO counseling and subsequently filed a formal complaint,
also on December 8, 1998, alleging that she was discriminated against, as
described. Like Complainant McDill, Complainant Lee was also advised on
February 11, 1999, via memorandum, that her position was being abolished
effective April 19, 1999, due to the base closure. Complainant Lee
thereafter again sought EEO counseling and subsequently filed a formal
complaint on June 14, 1999, alleging that she was discriminated against
on the basis of reprisal for her prior protected activity.
Upon agreement by all parties, the two complaints of Complainant Lee
and the two complaints of Complainant McDill were consolidated by the
agency's Office of Complaint Investigations (OCI) for investigation
and reporting, because of the similarity of issues and commonality of
witnesses. At the conclusion of the investigation, both complainants were
informed of the right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Both complainants requested a hearing initially. Both subsequently,
however, withdrew their hearing request and asked that the agency issue
a final decision.
In its FAD relative to Complainant McDill, the agency concluded that
she established a prima facie case of discrimination on both of her
claimed bases. The agency further found, however, that complainant
failed to rebut the proffered explanations of the agency as being a
mask for discriminatory animus. The agency concluded that S1 had an
abrupt, direct and harsh management style, and that Complainant McDill
was not singled out for poor treatment. The agency further argued that
Complainant McDill was hyper-sensitive, finding that she often perceived
actions as being personal when they clearly were not. Several co-workers
offered statements to this effect. Moreover, the agency denies that any
of this treatment was based on Complainant McDill's sex. Regarding her
termination, the agency concluded that this was a business related
decision based on the closure of the base and facility.
On appeal, Complainant McDill's attorney contends that S1's behavior was
reprehensible and should have been addressed by the agency. She notes
that one agency witness, S1's supervisor, stated that he counseled
S1 about �his manner in dealing with civilian employees.� The appeal
further offers the statement of another agency employee who testified
that S1 raised his voice to females to make a point. The agency requests
that we affirm its FAD.
In Complainant Lee's FAD, the agency concluded that while she established
a prima facie case of sex and reprisal discrimination, she similarly
failed to rebut the reasons proffered by the agency. Specifically,
the agency found that Complainant Lee and S1 often engaged in making
sexual remarks and telling sexual jokes with each other, but that this
was consensual. The agency concluded that when the behavior became
a problem for Complainant Lee, and she told S1 it was a problem,
it immediately stopped. Moreover, the agency stated that S2 did
take action when she was advised, by complainant's EEO complaint, of
harassment in the office. S2 asked that an investigation be conducted
into the allegations. The investigation also found that the behavior
in the office was inappropriate but consensual between all parties.
The agency further determined that Complainant Lee was not harassed
based on her sex when she was sent home. The agency found that because
Complainant Lee was under a doctor's order to stay home from work,
S2 acted appropriately. The agency concluded that complainant did not
demonstrate that this action was taken because of her sex. Finally,
regarding Complainant Lee's termination, the agency concluded that
this was a business related decision based on the closure of the base
and facility.
On appeal, Complainant Lee argues that her conversations with S1
were not consensual, and that the reason she did not complain to S2
prior to filing her complaint was because she believed to do so would
have been pointless based on the close relationship between S1 and S2.
Complainant Lee further argues that the agency was on notice, prior to her
filing an EEO complaint, that S1 sexually harassed women in the office.
ANALYSIS
Harassment Based on Sex
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. Harassment is actionable only if the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In order to establish a prima facie case of harassment based on sex,
a complainant must show membership in a protected group, and severe or
pervasive harassing conduct, such that it alters the conditions of her
employment, that would not have occurred except for her membership in
that protected group. 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).
While it is abundantly clear from the record that Complainant McDill
was subject to severe and pervasive conduct that did in fact alter her
working conditions, we nonetheless find that Complainant McDill did
not demonstrate that S1's behavior was based on a protected basis, i.e.,
there is no evidence that S1's offensive conduct toward Complainant McDill
would not have occurred if she were a man. Membership in a particular
protected class did not render one a target for S1's offensive conduct.
According to the record, all employees of the facility who encountered S1
on a regular basis were subject to the same treatment. Thus, Complainant
McDill has failed to establish a claim of unlawful harassment.
Further, with respect to Complainant Lee's claim of being harassed based
on her sex when she was sent home from work, we find that there is no
evidence that this action was taken because of Complainant Lee's gender.
S2 stated that Complainant Lee was sent home because she was under a
doctor's orders to be at home and S2 felt she was bound by such orders.
Whether this was the case or not, Complainant Lee proffered no evidence
to rebut this non-discriminatory reason. Therefore, Complainant Lee
has failed to establish a claim of harassment based on her sex.
Sexual Harassment
To establish a prima facie case of sexual harassment, a complainant
must show that: (1) she belongs to a statutorily protected class; (2)
she was subjected to unwelcome conduct related to her gender, including
sexual advances, requests for favors, or other verbal or physical conduct
of a sexual nature; (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 McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing 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).
Complainant Lee failed to establish a prima facie case of sexual
harassment under both prongs two and five, as enumerated above. First,
Complainant Lee failed to demonstrate that she was subjected to unwelcome
conduct at the hands of S1. The record indicates that Complainant Lee
engaged in inappropriate behavior with S1, including telling sexual jokes
and engaging in discussions of a sexual nature. Witness statements
overwhelmingly confirm that the interchange between Complainant Lee
and S1 was consensual. Based on the record, we find that Complainant
Lee actively participated in the complained of behavior. Next, while
we note that at some point in time Complainant Lee was no longer amused
by S1's conduct, and was instead offended, the record demonstrates that
the offending conduct ceased as soon as Complainant Lee conveyed her
displeasure to S1. Thus, there is no basis for imputing liability to
the agency. Accordingly, we find that Complainant Lee cannot establish
a prima facie case of sexual harassment.
Reprisal
Complainants can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
she engaged in a protected activity; (2) the agency was aware of her
protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 26, 2000).
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), we
find that both complainants established a prima facie case of reprisal
discrimination. Shortly after filing their complaints, both complainants
received letters notifying them that their positions were being abolished
as part of the base closure process. Both complainants allege that
they were selected as part of the first wave of people to lose their
jobs, instead of one of the later or last waves, because of their prior
complaints. The agency, however, asserts that both complainants were in
a non-duty status at the time the decision of which positions were to be
abolished first was made. S1 stated that he and S2 decided to abolish the
positions of Complainant McDill and Complainant Lee because their duties
were being done by other people already, given their non-duty status.
As rebuttal, both complainants offer the statements of three witnesses,
which were not themselves made part of the record but were instead
summarized by an EEO counselor. The witnesses, according to the
counselor, allegedly opined that both complainants had been treated
unfairly. The statement of the counselor, however, does not make
clear whether the unfair treatment was for having filed a complaint,
or for other actions. Complainants interpreted this summary of witness
statements as relating to the issue of being put in the first wave of
abolished positions unfairly, because of their prior protected activity.
While this is certainly a reasonable interpretation, the preponderance
of the evidence does not support complainants' position. We are not
persuaded that, more likely than not, complainants' prior protected
activity was a motivating factor in their positions being abolished in
the first wave. Moreover, S1 testified that the two complainants herein
were not the only individuals whose positions were abolished in accordance
with the base closure procedures in the February 11, 1999, wave.
Finally, the record supports the agency's articulated position that it
abolished both complainants' positions in the first wave, because other
people were already performing their respective duties, as both were
in a non-work status. S1 testified that because they were already
out of the office with their duties sufficiently absorbed, it made
sense to formally abolish their positions. We are not persuaded that
discriminatory animus was the motivating factor for abolishing the
positions of both complainants early. Therefore, we affirm the final
agency decisions finding no discrimination as to both complainants.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 2, 2003
__________________
Date
1 For clarification, two supervisors, S1 and S2, are named as the
responsible management officials in each complaint. Both complainants
had interactions with S1 and S2. At all relevant times, S1 and S2 were
in Complainant McDill's chain of command. S1 was not in complainant
Lee's chain of command, but was her co-worker, as noted above, during
the alleged sexually harassing incidents.