01A41550
06-24-2004
Mark R. Goudeau, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons) Agency.
Mark R. Goudeau v. Department of Justice
01A41550
June 24, 2004
.
Mark R. Goudeau,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Bureau of Prisons)
Agency.
Appeal No. 01A41550
Agency No. P-01-0223
Hearing No. 330-2002-8256X
DECISION
INTRODUCTION
Complainant filed an appeal with the Commission from a final order by the
agency finding no discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the reasons that follow,
the Commission affirms the agency's final order.
ISSUE PRESENTED
The issue presented is whether between August, 2001, and June 20,
2002, complainant was subjected to sexual harassment and a hostile work
environment based on his gender (male).
BACKGROUND
Complainant filed a complaint in which he set forth the above-referenced
claim of discrimination. The agency investigated the complaint and
notified complainant of his right to request a hearing before an EEOC
Administrative Judge (AJ). After a hearing, the AJ issued a finding
of no discrimination. The agency implemented the AJ's decision in its
final order. It is from this order that complainant now appeals.
Complainant is employed as Chief Pharmacist at the Bastrop Correctional
Facility (facility) in Bastrop, TX, providing therapeutic drug
administration to inmates. He alleges that he has been harassed on
the basis of his sex by a female Physician's Assistant (PA), who is a
co-worker in the facility's Health Services department. The PA does
not work directly in the pharmacy with complainant; they do, however,
report to the same supervisor.
According to complainant, the PA's harassing behavior started in late
1996 with inappropriate touching incidents. He alleges that the PA
frequently �rub(bed)� or �grind(ed)� her breasts into his arms and/or
shoulders when working close to him. Although the pharmacy work area
is compact, complainant states that he has never been inappropriately
touched by anyone else besides the PA. Complainant also alleges that the
PA deliberately placed herself in a position to make such contact occur.
Complainant did not tell the PA not to rub her breasts against him, but
he states that he made body movements away from the PA to communicate
his objection. The PA denies that such contact ever occurred.
Complainant never stated his objection to the contact directly to the
PA because he believes she is �protected,� and because he feared
retaliation from his boss and coworkers. Complainant believes the
PA is protected because past misdeeds have gone unpunished. He also
believes the PA maintains a social relationship with their supervisor.
Complainant states that another reason he did not report the touching
incidents initially was because he feared he might be preyed on by the
inmates for being a man making a sexual harassment claim against a woman.
He believes this would be considered a �sissy� complaint in the �macho�
prison environment.
In February, 1997, the PA began to harass complainant, he alleges,
by making inappropriate and derogatory remarks in the health services
log, which is intended to track medical issues and concerns. The log
is located at the front office of the health services unit, and can
be viewed by all staff and some inmates. Complainant believes the
remarks in question, such as references to the pharmacy being dirty,
were directed at him and were critical of his handling of the operations
of the pharmacy. These events began to occur, according to complainant,
shortly after his fiancee moved in with him. Complainant believes the PA
became aware of the seriousness of his relationship and began to harass
him because she was lonely and felt rejected. Other allegations of the
PA's harassing behavior include referring to complainant as a �m-----
f-----� and �that f---ing pharmacist,� attempts to discard $5,000
worth of expired medication for which complainant was responsible,
and claims in the log that the pharmacy was out of medication that was,
in fact, available. In addition, complainant alleges that the PA found
frequent excuses to be in the pharmacy (up to 15 or 20 times per day),
unnecessarily set up medical equipment and �pill lines� very close to
the pharmacy, and made oral remarks about how �great� he looked after
he returned from a vacation.
Complainant believes the PA's harassing behavior was in retaliation for
his rejection of her sexual and romantic advances.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
Complainant contends that the AJ erred when she 1) misstated certain
facts, including the PA's work schedule, her access to the pharmacy
area, and the negative impact of the PA's derogatory log comments on
complainant, and 2) failed to consider relevant testimony.
ANALYSIS AND FINDINGS
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).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993).
In order to establish a prima facie case of such harassment, complainant
must prove, by a preponderance of the evidence, the existence of five
elements: (1) that he is a member of a statutorily protected group;
(2) that he was subjected to unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment of which he complained is based on sex; (4) that
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with his work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) that there is a basis for imputing liability to the employer.
Henson v. City of Dundee, 682 F.2d 987, 903-05 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's situation. Enforcement Guidance
on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant is a member of a statutorily protected group (male).
To prove the existence of the second element of the prima facie case,
complainant must show that he was subjected to verbal or physical conduct
of a sexual nature. Complainant states that the physical conduct
consisted of the PA rubbing and/or grinding her breasts against his
shoulders or arms when working alone with him in the pharmacy. If the
contact did in fact occur, the question is if it was of a sexual nature.
The evidence does not support such a finding. Complainant described the
pharmacy work area as �fairly small�; therefore, as the AJ noted in her
decision, inadvertent body contact is more likely in such an environment.
The AJ was not persuaded by complainant's arguments that the contact
was intentional. We agree. Although complainant alleges that the PA
was in the pharmacy area far more than necessary, sometimes against
facility policy, that fact alone does not tip the evidence back toward
a conclusion that any resulting contact was sexual.
Complainant also alleges that the PA referred to him as a �m-----
f-----� and �that f---ing pharmacist.� Those terms, taken alone, do not
necessarily have a sexual connotation, and therefore do not constitute
verbal conduct of a sexual nature. Likewise, the PA's comment that he
looked �great� after returning from vacation does not necessarily have
a sexual meaning or indicate sexual intent.
Complainant also has not established that the PA's alleged harassment was
based on his sex. There is no evidence in the record supporting a finding
that the PA's conduct was directed toward complainant because he is a man.
The PA has been described by complainant as �loud� and �obnoxious,� and
it has been noted that she used profanity like a �sailor.� Complainant
also indicated that the PA sometimes made disparaging log entries about
other staff members as well. Although he contends that she made many
more about him than anyone else, the evidence still does not support a
connection between the PA's behavior and complainant's sex.
Because complainant has not proven the existence of the second and third
elements of a prima facie case of sexual harassment, we need not consider
whether any harassment of which he was a target had the purpose or effect
of unreasonably interfering with his work environment and/or creating an
intimidating, hostile, or offensive work environment. We also need not
consider whether there is any basis for imputing liability to the agency.
CONCLUSION
After a careful review of the record in its entirety, including
consideration of complainant's contentions on appeal, the agency's
response thereto, and arguments and evidence not specifically addressed
in this decision, we affirm the final agency order because the AJ's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
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
June 24, 2004
__________________
Date