01973502
09-03-1999
Janet R. Conner, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Janet R. Conner v. Tennessee Valley Authority
01973502
September 3, 1999
Janet R. Conner, )
Appellant, )
) Appeal No. 01973502
v. ) Agency No. 0712-96084
)
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. Appellant
alleges she was retaliated against when she was harassed by the co-worker
("CW") she filed her initial sexual harassment against. This appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED as CLARIFIED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a Contract Laborer, at the agency's Sequoyah Nuclear Plant. Appellant
alleged that between April 19, 1996 and May 15, 1996, she was subjected
to following harassment:
(1) on April 19, 1996, CW advised two men on an elevator not to touch
her because a certain individual on the elevator would tell everything;
(2) on April 19, 1996, CW, while driving in the parking lot, circled
appellant twice;
(3) on May 3, 1996, a co-worker informed appellant that CW had advised
him and another co-worker not to talk to appellant because she would
file a sexual harassment claim;
(4) on May 7, 1996, CW, while driving an agency vehicle, swerved toward
appellant who was walking to her car;
(5) On May 10, 1996, while entering the work area, CW followed so closely
behind appellant that appellant could feel CW's breath on the back of
her neck. CW also told a co-worker that "You better watch me so I don't
do anything"; and
(6) on May 15, 1996, CW slammed a bathroom door in appellant's face and
hit her foot.
Appellant informed the agency's Human Resource Officer ("HRO") of
the incidents. HRO stated that management investigated appellant's
allegations and was unable to substantiate her harassment claim.
Believing she was a victim of discrimination, appellant sought
EEO counseling and, subsequently, filed a complaint on July 9, 1996.
The agency accepted the complaint for processing, and at the conclusion of
the investigation, appellant was granted thirty days to request a hearing
before an EEOC Administrative Judge or an immediate FAD by the agency.
Appellant requested that the agency issue a FAD.
The FAD concluded that appellant failed to establish a prima facie
case of reprisal because she presented no evidence demonstrating that
she suffered any adverse employment action. The FAD further found that
while it was inappropriate for CW to have discussed appellant's prior EEO
complaint with co-workers, management took prompt action in investigating
the allegations and by holding a meeting with all concerned where it was
explained that improper conduct would not be tolerated. As a result,
the FAD found that appellant had suffered no retaliation.
Appellant makes no new contentions on appeal. The agency requests that
we affirm the FAD and for the first time contends that since appellant
was a Contract Laborer, she is not covered by the statute.<1>
ANALYSIS
Initially, while the FAD provided the traditional reprisal analysis
to appellant's complaint, we note that appellant's allegations were
of retaliatory harassment. As such, we find that the FAD applied the
incorrect legal standards. For the reasons stated below, we however
find that the FAD reached the correct conclusion of no retaliation.
In order to prevail on her claim of retaliatory harassment, appellant
must demonstrate that: 1) she engaged in protected activity; 2) she
was subjected to severe or pervasive harassing conduct; i.e., that she
has been subjected to more than a single incident or a group of isolated
incidents of harassing conduct<2>; and 3) the harassing conduct was based
on her participation in EEO activity. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9.
To avoid liability for hostile environment harassment, an agency
must show that: 1) the acts/conduct complained of did not occur; 2)
the conduct complained of was not unwelcome; 3) the alleged harassment
was not sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment; 4)
immediate and appropriate corrective action was taken as soon as the
employer was put on notice; and/or 5) there is no basis for imputing
liability to the employer under agency principles. See Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986).
After a careful review of the record, the Commission finds that appellant
failed to present sufficient credible evidence establishing that she
was subjected to retaliatory harassment. In reviewing the allegations
which led to appellant's complaint, we find that the incidents were not
sufficiently severe or pervasive to constitute a hostile environment.
The evidence surrounding some of appellant's allegations is conflicting.
In response to appellant's allegations, CW stated that: (1) she did not
remember making any statements regarding appellant's prior EEO activity;
(2) she circled the parking lot while helping a co-worker look for
his car; (3) she swerved the company vehicle attempting to avoid a
chug hole; and (4) she closed and locked the bathroom door because she
had been instructed to avoid confrontation with appellant. While the
FAD found that CW had in fact inappropriately discussed appellant's
prior EEO complaint, we find that these incidents are isolated and
not sufficiently severe to constitute a hostile environment. We also
find that the incidents are not reasonable likely to deter appellant
or others from engaging in protected activity. Finally, we note that
management acted promptly in response to appellant's allegations.
Management investigated the allegations and held a meeting with the
parties stressing that inappropriate conduct would not be tolerated.
CONCLUSION
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
modified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Since the agency did not raise this contention when processing the
complaint or in its FAD, we find that to allow the agency to raise this
argument on appeal would prejudice appellant. Appellant has had no
opportunity to develop facts or otherwise respond to this contention. As
a result, we will not address this contention.
2 In addition, the Commission has stated that "[t]he statutory retaliation
clauses prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others
from engaging in protected activity. Of course, petty slights and trivial
annoyances are not actionable, as they are not likely to deter protected
activity." EEOC Notice No. 915.003 (May 20, 1998), Compliance Guidance
on Investigating and Analyzing Retaliation Claims.