01A23092
05-06-2003
Pauletta Essiam, Complainant, v. Alfred V. Rascon, Director, Selective Service System, Agency.
Pauletta Essiam v. Selective Service System
01A23092
May 6, 2003
.
Pauletta Essiam,
Complainant,
v.
Alfred V. Rascon,
Director,
Selective Service System,
Agency.
Appeal No. 01A23092
Agency No. SSS-0101
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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 for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Purchasing Agent at the agency's National Headquarters in Arlington,
Virginia. Complainant sought EEO counseling and subsequently filed a
formal complaint on October 10, 2001, alleging that she was discriminated
against on the bases of sex (female):
(1) she was sexually harassed by her supervisor who made unwanted sexual
remarks and innuendos that were so severe that they affected her ability
to work, and he made it difficult to work when she did not return his
sexual advances; and,
her supervisor denied her the potential for promotion, continued career
growth and training due to the hostile work environment.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of sexual harassment and that she had not been denied
the potential for promotion, continued career growth and training due
to the hostile work environment caused by sexual harassment. On appeal,
complainant makes no new arguments. The agency requests that we affirm
its FAD.
The record reveals that complainant began working for the agency in 1990.
She stated in her affidavit that she began working for her supervisor
in 1998. At that time, she stated that she became friends with him,
sharing rides and a good rapport. She stated that in October of 2000, he
called her into his office and told her that her work habits had changed.
She stated that she explained to him that she had marital problems and
was going through a disturbing separation. She avers that he said,
"I appreciate you coming forth to tell me this but you being a woman
and me being a man, we could end up in bed."
She claimed that on another occasion in October of 2000, she brushed
up against him and he said to her, "I don't like it when you rub your
breasts against me." She stated that on October 28, 2000, he asked her
about a man that he had seen in her car while off duty. She stated that
the supervisor said to her that he thought that she was not dating anyone
and it was too early for her to start dating men she did not know well.
She stated that she told him that she was uncomfortable with his comments
about her private life. Thereafter, she stated that he critiqued her
work by accusing her of not following procedures and talking with a
contractor after she was told not to do so. She stated that her workload
was reduced and another female employee, with whom her supervisor was
friendly, was chosen for the Support Service Specialist position.
In his affidavit, the supervisor stated that he originally had a
cordial relationship with complainant in that he received a ride
home from her when his automobile was being repaired and had working
lunches with her. With respect to her allegation about the comment he
made when she rubbed against him, the supervisor stated that, while
he stood at the receptionist's desk, complainant rubbed her breasts
against him from behind. He stated that he told her, "[p]lease do not
rub your breasts on my back; it is not appropriate for a professional."
He stated that she did not respond to his comment. He denied that he
had ever sexually harassed complainant but did admit that he asked her
about a man he saw in her automobile while off duty. He contended that
he made this statement to complainant while walking down an aisle and
it was a passing conversation. He stated that he did not make any other
comments to her at that time regarding her dating life.
The reason why the relationship changed, he stated, was that she started
coming in to work late, being dishonest in the work she claimed to have
done, disappearing during work hours and signing in earlier than she
actually arrived. He stated that she ignored his order to not talk
to the contractor. He stated that the selectee was selected for the
Support Service Specialist position because she had duties that were
more closely aligned to the position than complainant's duties and he
felt the selectee was more qualified than the other eligible candidates.
In his affidavit, the contractor stated that while he did not observe
the supervisor sexually harass anyone, he observed that the supervisor
and complainant had an antagonistic relationship at the time he worked
there from February 2001 to April 2001. He stated that the supervisor
would harass the complainant but did not provide any specific examples.
He stated that he was harassed by the supervisor who would accuse him
of spending too much time talking to complainant and would not allow
him to use the office equipment.
The coworker who sat at the receptionist's desk stated in her affidavit
that she observed the incident where complaint brushed up against
the supervisor. She stated that she was talking to the supervisor
and he turned his body slightly and his elbow or upper arm brushed the
complainant's breast. She stated that she did not think that he knew that
the complainant was behind him. She stated that she could not recall
what he said but he was visibly upset and did not like what happened.
She further stated that she did not believe that the incident was sexual
harassment by the supervisor and that she never observed him sexually
harassing any employees.
It is well-settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish
a prima facie case of sexual harassment, the complainant must prove,
by a preponderance of the evidence, the existence of five elements: (1)
that she is a member of a statutorily protected class; (2) that she was
subjected to unwelcome conduct related to her sex; (3) that the harassment
complained of was based on her sex; (4) that the harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Here, the complainant has alleged that the supervisor sexually harassed
her on three occasions in October of 2000. Concerning the comment he
allegedly made about their ending up in bed together, the supervisor
denied making the comment and there were no witnesses to the comment.
The statement from complainant and her supervisor contradict each other
and we cannot find with certainty that the supervisor discussed with
complainant their possibly participating in a sexual act. Aside from
her own bare assertion, she failed to offer any corroborating evidence
to support her contention. See EEOC Policy Guidance on Current Issues
of Sexual Harassment, No. N-915-050 (March 19, 1990) (1990 Guidance),
p. 12. Thus we find that complainant did not establish that she was
subjected to unwelcome sexual conduct.
With respect to the incident where the complainant rubbed against
the supervisor, both the supervisor and the coworker stated that
complainant's breasts touched the supervisor. Both the complainant and
the supervisor agree that he stated that he did not want her rubbing her
breasts against him. In assessing whether the complainant has set forth
an actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering, inter alia,
the nature and frequency of offensive encounters and the span of time over
which the encounters occurred. See 29 C.F.R. 1604.11(b); 1990 Guidance;
Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
However, as noted by the Supreme Court in Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory
changes in the 'terms and conditions of employment." The Court noted
that such conduct "must be both objectively and subjectively offensive,
[such] that a reasonable person would find [the work environment to be]
hostile or abusive, and ... that the victim in fact did perceive to be
so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
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 the instant complaint, the statements revealed that the supervisor was
upset by the contact with complainant and told her to stop rubbing her
breasts against him. Based on the record, we find that his statement
for her to stop rubbing her breasts against him did not constitute an
unwelcome sexual advance.
Concerning the third incident, where the supervisor asked complainant
about a man in her automobile while she was off duty, there were no other
witnesses to this incident except for the supervisor and complainant.
Their affidavits are consistent regarding his questioning her about a man
in her automobile. However, complainant contended that he had discussed
her dating life and he stated that he did not. The alleged comments were
unwelcome to her as she stated that she complained to him at that time.
Assuming, arguendo, that the comments were made and based on complainant's
sex, complainant failed to establish that the comments were sufficiently
severe or pervasive to render the work environment hostile. Unless the
conduct is quite severe, a single incident or isolated incidents of
offensive sexual conduct or remarks generally do not create an abusive
environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
A "hostile environment" claim generally requires a showing of a pattern
of offensive conduct. The incident described does not indicate that
the alleged conduct described is more than an isolated incident. The
complainant has been unable to show a pattern of offensive conduct.
Thus we find that complainant did not establish that she was subjected
to sexual harassment.
With respect to the allegation regarding the denial of promotion,
continued career growth and training due to the hostile work environment,
the Commission finds that since complainant was unable to show that there
was a hostile work environment due to sexual harassment, the complainant
was not denied a promotion, continued career growth and training because
of sexual harassment.
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 FAD.
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
May 6, 2003
__________________
Date