0120102884
08-22-2012
Jane M. Kirk, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Jane M. Kirk,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102884
Hearing No. 430-2009-00553X
Agency No. 08-67001-00873
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 2, 2010 final order 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 final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Instrument Mechanic in the Agency's Fire and Emergency Services Division, Fire Prevention Branch in Camp Lejeune, North Carolina. Complainant and two other co-workers were hired in late-2006 and began working with a group that had been working together in the Prevention Branch for many years. One of Complainant's co-workers (CW1) began referring to Complainant and the other new employees as "spy" and "narc."
Around August 2007, Complainant brought in a talking, motion-activated parrot toy which uttered vulgar phrases. Complainant claimed that she brought it in to give to another co-worker (CW2) because she was trying to get rid of it and did not want it around her house. The parrot eventually ended up in the warehouse as an "alarm system" alerting employees when someone entered. Complainant claimed that she never intended for it to be placed in the warehouse and gave it to CW2 expecting him to take it home.
Complainant alleged that CW1, CW2, and others engaged in numerous sexually inappropriate conversations in the warehouse between August and December 2007. Complainant claimed that CW1 discussed his sexual fantasies and his desire to have sex with Complainant after giving her a date-rape drug. Co-workers testified that Complainant and CW1 "flirted" and that Complainant once placed her "butt in [CW1's] face" and said "You know you would like to hit that." Complainant alleged that CW2 was called a "stalker" by co-workers and sent her text messages stating "I love you" and "everybody hates you."
On December 19, 2007, CW1 became upset that Complainant had attended the Christmas party with senior managers. CW1 was angry that no other Prevention Branch employee had ever been invited to or attended the event. In his anger, CW1 called Complainant a slut and asked "What, did she spend the whole time under the table?" Complainant was not present when CW1 made the statements, but learned of the comments the next day. The next day, CW1 continued angrily ranting about Complainant. During an office meeting, CW1 allegedly stated to Complainant that he knew she was a spy since she had been invited to the Christmas party and that "he knew people." Complainant replied that "we all know people." CW1 then stated that he knew people that could make her "disappear."1 The Assistant Chief (AC) was alerted to CW1's conduct and subsequently conducted a preliminary investigation. AC instructed two employees to ensure that Complainant and CW1 did not interact with each other while he was out on vacation and their daily activities did not require that they interact. AC returned from vacation in January 2008 and began a more complete investigation into the situation. Subsequently, CW1 was suspended without pay for 14 days for his conduct.
Complainant alleged that as a result of the investigation into CW1's conduct, co-workers began retaliating against her. Specifically, a co-worker (CW3) would make "farting noises" when she walked by, called her a "narc" and "spy," and simulated shooting Complainant and another co-worker with a machine gun.
Complainant became frustrated with problems related to her pay and met with a former mentor/supervisor in another department. AC and the Fire Chief met with Complainant to discuss these issues and her going beyond her chain-of-command to resolve these issues in February 2008. During the meeting, Complainant became upset and stated that AC was incompetent. At that point, the Chief ended the meeting and Complainant claimed that when she tried to leave, AC and the Fire Chief blocked the door preventing her from going to Building 33, where the EEO Office was located. Complainant stated that she felt intimidated and cancelled her scheduled EEO appointment, but AC later told her she could go.
On March 21, 2008 (and amended on April 18, 2008), Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, a co-worker (CW1) called her a slut, stated he wanted to have sex with her by giving her a date rape drug, told her about his sexual fantasies, and made a death threat against her; she received text messages from another co-worker (CW2) who other co-workers called a "stalker"; and, figurines were placed in sexual positions around the office.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a joint hearing on the instant complaint and a co-worker's complaint on January 12 - 14, 2010.2
In his decision, the AJ determined that Complainant had failed to establish a prima facie case of sexual harassment. The evidence showed that the Prevention Branch was a factionalized workplace where non-actionable profanity, jokes, infrequent sexual conversations, and hostility among co-workers were common. More specifically, Complainant lacked evidence sufficient to establish the unwelcome element of a prima facie case of harassment. For example, as to the "talking" parrot, the AJ noted that Complainant was directly responsible for the parrot being in her workplace as she brought in the parrot and gave it CW2. Thereafter, the parrot was placed in the warehouse as an alarm system to warn employees when someone entered the warehouse. Complainant testified that it was given to her as a gag gift and she gave it CW2 rather than passing it on to another family member. Complainant admitted that she never complained to anyone about the parrot in the workplace and there was no evidence that management even knew about the parrot.
The AJ found that CW1 credibly denied allegations related to him discussing his sexual fantasies with Complainant. CW1 admitted that he once angrily called Complainant a slut and that he asked about the circumstances surrounding Complainant's attendance at the Christmas party. The AJ found, however, that the infrequent and isolated comments were not sufficiently severe or pervasive to alter the terms or conditions of Complainant's employment. Further, the AJ found that credible testimony established that Complainant's work relationship with CW1 was interpreted as them engaging in sexual bantering on more than one occasion. In one situation observed by co-workers, Complainant flirtatiously "put her butt in [CW1's] face" and said to him, "You know you'd like to hit that." Another situation involved Complainant placing her leg on CW1's thigh while they were outside of the warehouse with other co-workers sitting in chairs.
The most serious allegation of harassment relates to CW1's alleged implied death threat to Complainant; however, the AJ found that this threat was not as Complainant had portrayed. CW1, a former part-time bounty hunter, testified that Complainant first asked him whether he knew anyone who could "take care" of her son-in-law. The record revealed that Complainant's comments were investigated and two investigative entities found insufficient evidence to bring criminal charges against her. Complainant contended that CW1 told her that he could make her disappear, that her body would not be found, and that he "knew people." CW1 testified the conversation in question actually was related to Complainant's contention that a colonel on base was assisting her daughter in getting a job. Complainant stated that she "knew people" and CW1 stated that he "knew people" too. CW1 testified that another co-worker present made the comment about finding Complainant's body in the New River with chains. The AJ determined that no witness provided credible testimony to corroborate Complainant's allegations and Complainant herself stated, during one of the investigations into the competing allegations, that she and CW1 never had any problems besides jokes about her being a spy.
Additionally, Complainant alleged that she received text messages from "the stalker" CW2 that were initially romantic and became threatening. The AJ noted that Complainant continued to interact with CW2 outside of work, even to the point of inviting him to a bar where her daughter worked or other bars where they danced together. While Complainant did not report CW2 to the police or the Agency, one night at dinner with co-workers, Complainant had a friend contact CW2 via text message threatening him. The AJ determined that credible hearing evidence established that the "stalker" related to his ability to quickly arrive at an emergency situation or fire alarm and not to any alleged conduct toward women. The AJ concluded that while CW2 had a romantic interest in Complainant, the record did not support the contention that any of CW2's text messages were severe or pervasive enough to create a hostile work environment.
Finally, Complainant contended that "sexually-positioned" figurines were visible to her and co-workers during daily meetings and men's magazines were all over the warehouse. The AJ determined that Complainant failed to mention to anyone that she was offended by the figurines. Further, as to "Playboy"-style men's magazines, the evidence indicated that there was never more than one men's magazine at any given time in the warehouse. After observing Complainant's demeanor and listening to her and her co-workers' testimony, the AJ concluded Complainant's contention that she was offended by a men's magazine was not credible.
Even assuming that Complainant had established a prima facie case of sexual harassment, the AJ found that there was no basis for liability against the Agency. Complainant claimed that she repeatedly complained to AC about sexual harassment, however, the AJ found there was no credible evidence that she complained to him about anything other than her pay and about the "juvenile" hostile work environment, which occurred in late-February 2008. Further, management took swift and appropriate action after it learned of CW1's sexually derogatory comments. After conducting a preliminary investigation, AC arranged for Complainant and CW1 to not interact with each other while he was out on vacation. When he returned from vacation, he conducted a more complete investigation and CW1 was ultimately issued a 14-day suspension for his conduct. Thus, the AJ found that Complainant's sexual harassment claim failed.
Next, Complainant claimed that she was subjected to a retaliatory hostile work environment by her co-workers after reporting CW1's alleged conduct. One incident alleged involved a co-worker CW3 mimicking pointing and shooting a machine gun. The AJ determined the hearing evidence revealed that this gesture stems from CW3 mimicking a professional wrestler which long-term co-workers interpreted as a greeting CW3 had been doing for years. Nonetheless, the AJ found that there was no evidence that Complainant reasonably feared for her safety or was intimidated by this one-time incident. Additionally, Complainant alleged that she was stared at and laughed at when entering the room, was called "narc" or "spy," and CW3 made "fart noises" when she walked into meetings. The AJ noted that Complainant testified that she was called "spy" on her first day in the Prevention Branch, well before she complained to AC about CW1's comments. Further, the AJ added that co-workers used similar names about other co-workers. The AJ concluded that the infrequent comments were nothing more than childish behavior and there was no evidence of retaliatory animus towards Complainant. As a result, the AJ found that Complainant had not been subjected to sexual harassment or a retaliatory hostile work environment as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ made findings of fact which support her allegations that she was subjected to a hostile work environment, but reached the wrong legal conclusion. Specifically, Complainant argues that the AJ fragmented her claim and failed to examine whether the incidents as a whole constituted a hostile work environment. Further, Complainant challenges the AJ's finding that the work atmosphere was simply juvenile and not a sexually hostile work environment. Finally, Complainant contends that there is a basis for imputing liability for the hostile work environment as she showed that management was aware of the incidents and AC's testimony to the contrary was not credible. Accordingly, Complainant requests that the Commission reverse the final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Sexual Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. 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 at 6.
Upon careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record, and there is nothing to undermine his credibility determinations. Having reviewed the transcript, it is clear that the AJ found the Agency's witnesses and management officials more credible than Complainant, and Complainant's disagreement with his findings does not constitute objective evidence. However, the Commission finds that the AJ erred as a matter of law in determining that the incidents as a whole were not sufficiently severe or pervasive to establish a sexually hostile work environment. The record testimony established that CW1 called Complainant a slut and made other sexual derogatory comments about her, men's magazines and figurines in sexual positions were found around the warehouse, Complainant was subjected to sexual advances through text messages from CW2, and CW2 placed a vulgar "talking" parrot he received from Complainant in the workplace. By the end of March 2008, Complainant was out on stress leave and later began receiving workers' compensation benefits. The Commission determines that these incidents were sufficiently severe to alter the terms and conditions of Complainant's employment and to create an abusive work environment.
Nonetheless, the Commission agrees with the AJ and finds that substantial evidence in the record establishes that Complainant failed to show that there was a basis for imputing liability upon the Agency. An Agency is liable for harassment by a co-worker or other non-supervisor when it "knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. � 1604.11(d). Whether the Agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment.
In the instant case, the AJ found that management acted appropriately when it learned of the harassing behavior. Specifically, when AC learned of CW1's comments, AC immediately conducted a preliminary investigation into the comments before going out on vacation. Hr'g Tr., at 73. Before leaving for vacation, AC ensured that Complainant and CW1 did not interact with each other and would not be left alone together. Id. at 78. AC testified that he was not aware of any other incidents and Complainant never expressed to him that she felt she was being sexually harassed. Id. at 160. Further, the Fire Chief testified that he took smoke breaks with Complainant and she never complained to him about harassment; rather, she inquired once about the investigation into CW1's comments. Hr'g Tr., at 1133-35. After a full investigation was complete into his conduct, CW1 was suspended for 14 days.
There is no claim or evidence that any similar conduct or incidents involving CW1 recurred. Additionally, other employees were subsequently disciplined when their conduct was discovered after Complainant left the Prevention Branch. Substantial evidence in the record supports that Agency management took appropriate action on any alleged harassing conduct that Complainant brought to their attention. Therefore, the Commission agrees with the AJ and concludes that the Agency has met its burden to show that it exercised reasonable care to stop the harassing behavior. Accordingly, the Commission finds that there is no basis for liability.
Retaliatory Hostile Work Environment
Complainant claimed that she was subjected to a retaliatory hostile work environment from her co-workers after reporting CW1's conduct. Specifically, CW3 mimicked shooting a machine gun, co-workers laughed at her and made crass noises as she walked by, and she was called "narc" and "spy." The Commission agrees with the AJ that these incidents were not sufficiently severe or pervasive to establish a retaliatory hostile work environment. The Commission notes that Complainant testified that the nicknames "narc" and "spy," while inappropriate, were given to her and other co-workers almost immediately upon their entering the Prevention Branch. Further, the AJ credited co-workers' testimony that CW3's mimicking was related to his impression of a professional wrestler that he often did around the warehouse. The record is clear that the Prevention Branch was rife with personal conflicts and inappropriate behavior; however, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Thus, the Commission finds that substantial evidence in the record supports that the alleged incidents were not based on retaliatory animus.
Finally, Complainant claimed that AC and the Chief attempted to block her from attending an EEO appointment. AC testified that during a meeting with the Chief regarding her pay and following chain-of-command in dealing with those issues, Complainant called him incompetent which resulted in the meeting ending. Hr'g Tr., at 166. Both AC and the Chief denied blocking Complainant's exit from the meeting. Complainant thereafter attended an appointment with the EEO Office in Building 33. At the time, AC was unaware of what appointment Complainant was attending; just that she was going to Building 33. Hr'g Tr., at 92-93. The record reveals that Building 33 houses many offices, including Labor Relations and the EEO Office. The record testimony reveals that AC only counseled Complainant about the proper procedures for informing management about appointments during the workday. The Commission finds that substantial evidence supports that management did not act with retaliatory animus. As a result, the Commission finds that Complainant was not subjected to a retaliatory hostile work environment as alleged.
CONCLUSION
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 final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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 (Nov. 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:
______________________________ August 22, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 In addition, in January 2008, CW1 reported that Complainant had attempted to hire him to kill her son-in-law. The Naval Criminal Investigation Service investigated the matter, but no criminal charges were filed against Complainant.
2 The co-worker's complaint concerned retaliatory harassment and termination. The AJ found in favor of the co-worker solely with regard to the termination claim. The Agency did not appeal the AJ's findings.
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0120102884
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102884