01A10493
12-28-2001
Janet A. Newton, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Janet A. Newton v. Department of Agriculture
01A10493
December 28, 2001
.
Janet A. Newton,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A10493
Agency Nos. 970110; 980046
Hearing Nos. 260-98-8087X<1>; 260-99-8199X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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. Complainant alleges she
was discriminated against on the bases of her sex and in reprisal for
prior EEO activity under Title VII when:
she was issued a letter of caution regarding her behavior with a
co-worker (CW);
she was reprimanded for her use of sick leave;
she was allegedly sexually harassed by CW; and
she was subjected to hostile work environment harassment by CW.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Food Inspector at the agency's
Schuyler, Nebraska, plant, filed a formal EEO complaint with the agency
on December 9, 1996, alleging that the agency had discriminated against
her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination on any of her claimed bases. Specifically, the AJ found
that complainant failed to demonstrate that similarly situated employees
not in her protected classes were treated differently under similar
circumstances. The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions listed at one
and two. The AJ found that, with respect to the letter of caution,
both complainant and CW were issued a letter about their behavior
as a means of stopping the behavior. With regard to the reprimand,
the agency stated that complainant's behavior warranted such action as
her sick leave balance was low and its use was questionable. Finally,
as to the sexual and sex-based harassment by CW, the AJ concluded that
none of the behavior by CW was so offensive or outrageous so as to alter
the conditions of complainant's employment, nor did it have the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive working environment.
The agency's final decision implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
Further, she states that the AJ erroneously limited her testimony
to events occurring between December of 1994 and December of 1996.
The agency requests that we affirm its final decision.
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. National Labor Relations Board, 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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for her prior EEO activity or were motivated by discriminatory
animus toward her sex. We further note that, while the behavior of CW was
inappropriate, so too was the behavior of complainant. While comments of
a vulgar or sexual nature are not appropriate in the work place, whether
in a joking manner or otherwise, and the agency would be wise to make this
clear to all of its employees, we nonetheless have carefully reviewed the
record and discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
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
December 28, 2001
__________________
Date
1 This number and two other numbers, 140-99-8101X and 360-98-8087X,
were used interchangeably by the Administrative Judge, thus it is unclear
which is correct.