Janet A. Newton, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 28, 2001
01A10493 (E.E.O.C. Dec. 28, 2001)

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.