01983069x
02-16-2000
Eric C. Anderson, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eric C. Anderson, )
Complainant, )
) Appeal No. 01983069
v. ) Agency No. AR000980155
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of religion (Jewish), sex (male), and reprisal in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> For the following reasons, the Commission affirms the FAD.
ISSUE PRESENTED
The issue presented is whether complainant has shown by preponderant
evidence that he faced discriminatory harassment by his supervisor and
his co-worker on the bases of sex (male), religion (Jewish), or reprisal
(prior EEO activity).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as Auditor at the agency's Nellis Air Force Base, Nevada facility.
Complainant alleged that he was harassed by his supervisor and co-worker
on several occasions between August 21, 1996 and October 2, 1996.
Complainant alleges that during this time period: Co-worker slapped him in
the face when he discussed the enforcement of regulations regarding toll
calls; Co-worker made comments to complainant regarding his inability
to move heavy objects; on September 6, 1996, complainant reported these
two incidents to his supervisor who decided to have complainant and
Co-worker discuss the situation and �work this out�; on September 12,
1996, his supervisor raised his arm to return a �Nazi-like� salute he
received from another individual at a conference; and on September 20,
1996, complainant overheard Co-worker discussing with others the �Good
Old Boys Network� which complainant regarded as male-bashing comments.
On September 20, 1996, complainant contacted the EEO office contending
that he was being discriminated against with respect to words and
actions of his supervisor and a co-worker. Complainant's supervisor,
upon being informed of his contact with the EEO office, called complainant
at home three times in one night, in order to discuss the allegations.
Complainant filed a formal complaint on November 4, 1996, identifying
thirteen incidents of alleged harassment. By letter dated March 20,
1997, the agency accepted all but two incidents for investigation and
an investigation was conducted on August 4, 1997.
At the conclusion of the investigation, complainant requested that
the agency issue a final agency decision. The agency issued a FAD
on February 12, 1998. The FAD concluded that complainant failed to
establish a prima facie case of harassment because he failed to prove
that the alleged events occurred or that the events rose to the level
of discriminatory harassment. Further, the FAD found that complainant
failed to establish a prima facie case of reprisal discrimination because
the alleged events occurred before he participated in EEO activity.
Therefore, the agency found no discrimination and denied relief.
On appeal, complainant contends that the agency failed to consider a
number of his arguments. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Discriminatory Harassment
Complainant alleged that he suffered from discriminatory harassment based
on his religion and sex. It is well-settled that harassment based on
an individual's sex and religion is actionable. See Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that: (1)
he belongs to the statutorily protected classes; (2) he was subjected
to unwelcome conduct related to his membership in those classes; (3)
the harassment complained of was based on sex and religion; (4) the
harassment had the purpose or effect of unreasonably interfering with his
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, complainant alleged a number of incidents which he felt
created a hostile working environment. He claims that his supervisor
and co-worker made offensive comments and gestures regarding his
religion and sex which made him feel uncomfortable at the workplace.
Upon review of the record, the Commission concludes that complainant
demonstrated that he is a member of the protected classes and that the
events alleged were sufficient to rise to the level of conduct which
would create a hostile work environment. In particular, we find that
physical touching by Co-worker constitutes a hostile work environment.<2>
However, the Commission finds that complainant fails to establish a
nexus between the hostile work environment and his sex and religion.
Therefore, the Commission finds that complainant failed to demonstrate
that he suffered from discriminatory harassment. Accordingly, we affirm
the FAD with regard to complainant's allegation of discrimination based
on a hostile work environment.
Per Se Violation
Complainant also alleges reprisal when his supervisor called him at
home regarding his EEO activity initiated on September 20, 1996 in
reference to this instant complaint. His supervisor was informed of
complainant's EEO contact. Upon hearing the information, the supervisor
contacted complainant three times, at least two of which concerned the
EEO complaint. Upon review of the record, the Commission finds that
the supervisor's action violated the letter and spirit of the EEOC
Regulations and evidences a per se interference with the EEO process.
The agency has a continuing duty to promote the full realization of equal
employment opportunity in its policies and practices. See 29 C.F.R. �
1614.101. This duty extends to every aspect of agency personnel policy
and practice in the employment, development, advancement, and treatment
of employees. See 64 Fed. Reg. 37,644, 37,655 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.102). Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to insure a continuing affirmative application and
vigorous enforcement of the policy of equal employment opportunity.
See 29 C.F.R. � 1614.102(a)(5); see also Binseel v. Department of the
Army, EEOC Request No. 05970584 (October 8, 1998).
Here, the supervisor's attempts to discuss complainant's EEO contact
served to have a potentially chilling effect on the ultimate tool that
employees have to enforce equal employment opportunity, the filing of
a complaint. Based on the Commission's duty to insure the integrity of
the EEO process and the undisputed evidence of unlawful action in the
instant case, the FAD is REVERSED to find that a violation of the EEOC
regulations has occurred. The agency shall, as set forth in the order
below, take all actions necessary to insure that managers and supervisors
act in accordance with the EEOC regulations and, in particular, refrain
from acting in such as complainant's supervisor that may discourage use
of the EEO process.
CONCLUSION
After a review of the entire record, the Commission finds that the FAD is
REVERSED in part, to find that the agency engaged in a per se violation
of the EEOC regulations. In order to remedy its violation of the EEOC
Regulations, the agency shall take the steps contained in the following
Order.
ORDER
The agency is ORDERED within sixty (60) days to arrange EEO training
for complainant's supervisor to insure that he acts in accordance with
the EEOC regulations and, in particular, refrains from any action and/or
statements which restrain or interfere with the EEO process. The agency
shall take all actions necessary to insure that managers and supervisors
act in accordance with the EEOC regulations and, in particular,
refrain from any action and/or statements which restrain or interfere
with the EEO process within ninety (90) days. The agency shall also,
as outlined below, post the attached notice regarding its commitment to
equal employment opportunity. The agency is further directed to submit
a report of compliance to the Compliance Officer, as provided in the
paragraph below entitled "Implementation of the Commission's Decision."
The report shall include supporting documentation verifying that the
corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Nevis Air Force Base, Nevada
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
Feb 16, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________ _____________________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________, which found that
a violation of 29 C.F.R. � 1614.101 has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Air Force, Nellis Air Force Base, Nevada, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law. The
Department of the Air Force, Nellis Air Force Base, Nevada, will not
act in such a manner as to discourage use of the EEO process.
The Department of the Air Force, Nellis Air Force Base, Nevada, has
undertaken all corrective action as set forth in the Commission's Order
and will not act in any manner that will discourage the use of the EEO
process. The Department of the Air Force, Nellis Air Force Base, Nevada,
will ensure that supervisors and managers will abide by the requirements
of all Federal equal employment opportunity laws.
The Department of the Air Force, Nellis Air Force Base, Nevada, will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to Federal
equal employment opportunity law.
Date Posted: ____________________
Posting Expires: ________________
1 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.
2 The Commission further notes that complainant's supervisor's decision
to have complainant, who believed that Co-worker was harassing him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., meet with Co-worker to discuss the situation
was ill-advised.