01971686
04-02-1999
Joseph Davis, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joseph Davis v. Department of the Navy
01971686
April 2, 1999
Joseph Davis, )
Appellant, )
)
v. ) Appeal No. 01971686
) Agency No. DON9565923010
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
________________________________)
DECISION
Appellant timely initiated an appeal from the Department of the Navy's
(hereinafter referred to as the agency) final decision on his EEO
complaint. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
In an October 28, 1994 statement, appellant--a WG-10 Electrician--
reported that on the previous day, he and his wife had observed a
co-worker (black, male) expose himself and perform a biological function
on the flightline near a helicopter. Thereafter, appellant filed the
instant complaint alleging hostile environment sexual harassment based on
sex (male) and race (white).<1> Appellant asserted that upon completion
of the biological function, the co-worker also engaged in an action of
a sexual nature. Appellant raised additional allegations as well, e.g.,
that management failed to take corrective action; allowed the co-worker
to "stalk" him; allowed the co-worker's friends to harass him and to
subject him to laughing, joking, and humiliation, and so on.
Agency officials conducted an investigation and the co-worker admitted
to having performed the biological function because of the urgency of
the situation. As a result of the incident, the co-worker was suspended
for five days. He also pleaded guilty to a charge of indecent exposure
in a criminal court.
The agency complied with all procedural and regulatory prerequisites
and, on September 30, 1996, an EEOC Administrative Judge (AJ) issued a
recommended decision (RD) without a hearing, finding no discrimination.
With respect to the race discrimination claim, the AJ found that appellant
was unable to establish a prima facie case. With respect to the sexual
harassment claim, the AJ found that this was a single incident in which
the act did not appear be of a sexual nature and that, even if it was
of a sexual nature, the facts showed that the co-worker was unaware of
anyone else's presence. The AJ further found that even if appellant had
established a prima facie case of hostile environment sexual harassment,
the agency was not liable because the action was not sufficiently
severe or pervasive to alter the conditions of appellant's employment
and because the agency took immediate and appropriate corrective action.
Thereafter, the agency issued a final decision adopting the AJ's RD
in its entirety. Appellant now appeals from the FAD but raises no new
arguments or contentions.
After a careful review of the record, the Commission finds that the AJ's
RD finding no discrimination, accurately summarized the relevant facts
and correctly applied the appropriate regulations, policies, and laws.
We, therefore, discern no basis for disturbing the AJ's findings of
fact and conclusions of law with respect to appellant's complaint.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
April 2, 1999
___________________ ___________________________
DATE Frances M. Hart
Executive Officer
1Appellant's wife also filed an EEO complaint based on the same incident.
The EEOC AJ consolidated the complaints and issued a recommended decision
without a hearing, finding no discrimination. Thereafter, the agency
issued two separate final decisions. Appellant's wife's appeal was
docketed as EEOC Appeal No. 01972462 and shall be addressed therein.
Record evidence showed that in March 1998, she filed a civil action on
the same matter.