01A13362
07-25-2002
Emilia P. Moore, Complainant, v. Defense Commissary Agency Agency.
Emilia P. Moore v. Defense Commissary Agency
01A13362
July 25, 2002
.
Emilia P. Moore,
Complainant,
v.
Defense Commissary Agency
Agency.
Appeal No. 01A13362
Agency Nos. 98DEANAE027 & 99EANHG029
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Sales Store Clerk at the agency's Commissary Store at its Little
Creek Amphibious Base in Norfolk, Virginia. Complainant sought EEO
counseling and subsequently filed formal complaints on May 6, 1998,
and May 11, 1999, alleging that she was discriminated against on the
bases of sex (female), religion (Catholic), and reprisal for prior EEO
activity when:
she was harassed based on her religion because she did not participate
in bible classes held in the office;
she was sexually harassed by her first-line supervisor (S1) and then
treated poorly by S1 after rebuffing her advances; and
on March 24, 1999, she was denied a detail to the �computer room� after
S1 interfered and told complainant's second-line supervisor (S2) not
to detail complainant.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant made
a timely request for a hearing. An EEOC AJ was assigned and subsequently
issued a scheduling order, which included the date by which prehearing
statements and witness lists was to be submitted, as well as the date for
the prehearing conference. Complainant failed to produce the required
documents to the AJ, and failed to appear for the pre-hearing conference.
Thus, the AJ returned the file to the agency for issuance of a FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of harassment based on her religion. The agency
stated that bible classes were not held at the facility, but rather on
one occasion complainant's co-workers and a supervisor (S3) discussed the
previous Sunday's sermon. The agency further found that after complainant
expressed her displeasure with the topic of conversation, S3 apologized,
as well as one of the co-workers, and all conversation of that nature
ceased. Although complainant further alleged that she was asked whether
she attended church services and called heathen and tramp by co-workers,
the agency found that the record evidence did not support this claim.
With respect to complainant's claim of sexual harassment, the agency found
that the record evidence did not support her position. The agency further
found that complainant did not complain about the alleged harassment to
anyone. The agency found that S1 was excessively rude to complainant,
but that S1 was also rude to another employee of the facility, making
it unlikely that S1 treated complainant differently because of her sex
or because complainant rebuffed S1's alleged advances.
Finally, regarding her claim that she was denied a detail in retaliation
for rebuffing advances, the agency found that complainant was not,
in fact, denied the detail. Rather, the agency concluded, complainant
was merely confused about the detail to which she was being assigned.
S2 stated that when he told complainant she was being detailed to the
computer room, he meant the �outer room� where she was to work with
another supervisor in supply, not the �inner room� where the server and
other equipment are located. Complainant was detailed to the �outer
room� and perceived this as interference from S1, because she thought
she was being detailed to the �inner room.� Thus, the agency concluded
that complainant was not subject to reprisal by S1.
On appeal, complainant is silent. The agency requests that we affirm
its FAD.
ANALYSIS
Harassment
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 or
religion, 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.<1> 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).
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of harassment discrimination.
Specifically, we find that complainant has proffered no evidence
to support her contentions that she was harassed based her sex or
religion. Regarding the claim of religious harassment, the record
evidence overwhelmingly indicates that bible classes were not held
at the facility. Further, all witness statements corroborate the
agency's position that there was a singular impromptu discussion that
precipitated complainant's ire. The evidence furthers makes clear that
once complainant complained, the behavior ceased. There is no evidence
of further conduct by any employee at the facility.
With respect to the claim of sexual harassment, complainant again
failed to offer any evidence to support her claim. Complainant states
that S1 touched her often and in a manner that made her uncomfortable.
Complainant further states, however, that she asked S1 to stop touching
her and S1 did. Thus, even assuming all the incidents complained of
actually occurred, they are not sufficiently severe or pervasive to
amount to an actionable claim of harassment.
Reprisal
Complainant 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).
Herein, assuming complainant engaged in protected activity by asking
S1 to stop sexually harassing her, complainant nonetheless fails to
demonstrate that she was subsequently subjected to adverse treatment as
a result. S2 credibly stated that complainant was merely confused about
the terminolgy used to describe the detail, but that complainant did
get the detail he originally intended. The record further indicates
that there was no interference or influence from S2. Accordingly,
we find that complainant has failed to establish a prima facie case
of reprisal discrimination. Therefore, after a careful review of the
record, including arguments and evidence not specifically addressed in
this decision, we affirm the FAD.
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
July 25, 2002
__________________
Date
1 Harassment that is targeted at an individual because of his or her
sex violates Title VII even if it does not involve sexual comments
or conduct. Thus, for example, frequent, derogatory remarks about
women could constitute unlawful harassment even if the remarks are
not sexual in nature. See 1990 Policy Guidance on Current Issues of
Sexual Harassment, subsection C(4) (�sex-based harassment - that is,
harassment not involving sexual activity or language - may also give
rise to Title VII liability . . . if it is �sufficiently patterned or
pervasive' and directed at employees because of their sex�).