Joseph Davis, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01971686 (E.E.O.C. Apr. 2, 1999)

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.