01A23398_r
05-20-2003
RheaDawn Phelps, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
RheaDawn Phelps v. Department of the Navy
01A23398
May 20, 2003
.
RheaDawn Phelps,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23398
Agency No. 02-65923-001
DECISION
Complainant filed a timely appeal from a final agency decision dated May
8, 2002, concerning her complaint of unlawful employment discrimination
brought pursuant to Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.
The record reveals that during the relevant time, the agency employed
complainant as a GS-12 Information Systems Security Manager at its Naval
Aviation Depot, Cherry Point, North Carolina facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on October 9,
2001, claiming sexual harassment by a co-worker, as evidenced by the
following incidents:
(1) In March 2001, while temporarily re-located to a work trailer, a
named co-worker (CW), intentionally touched complainant's breast with
his elbow, laughing immediately thereafter, and complainant objected
to this touching;
In April 2001, while still located in the trailer work space, CW grabbed
complainant's breast, and complainant told him never to do it again;
During this same time period, also in the work trailer, CW made several
obscene remarks to complainant, which she found offensive; and
In August 2001, two months after being re-located from the trailer to
another office, CW came to complainant's office and commented on her
change of hair color, attempting to solicit a concurring comment from
another worker, causing complainant to feel demeaned.
In her formal complaint, complainant further contends that after she was
re-located from the trailer, in June 2001, she reported CW's conduct to
their mutual first line supervisor (S1). Complainant avers that she did
not report the conduct sooner because she feared reprisal as long as she
still worked with CW in the trailer. Complainant contends that S1 did not
appear to be interested in her report of CW's conduct, and failed to take
any action. Complainant also contends that, to compound matters, S1 then
gave CW a performance award larger than the one she gave to complainant.
Because of S1's purported indifference and inaction, in early August
2001, complainant contacted the human resources office and reported the
sexual harassment that purportedly occurred in the trailer. Additionally,
in mid-August, complainant also contacted a second line supervisor (S2),
who professed to have no knowledge of the trailer incidents, but acted to
address the matter by immediately contacting the human resources office,
whereupon he learned that the matter was already under investigation.
A day or so later, incident 4 occurred, and complainant reported this
incident to S2 as well. The record reflects that S2 interviewed a
witness, who failed to confirm complainant's version of events, and
the record does not reflect that S2 took any further action regarding
incident 4.
At the conclusion of the investigation of complainant's EEO complaint,
in March 2002, the agency informed complainant 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 final decision, the agency found that complainant failed to
submit sufficient evidence to show that the incidents she identifies
were sufficiently severe and pervasive as to alter the conditions of
her employment. In reaching this conclusion, the agency noted that
CW denied all of the �trailer incidents� (incidents 1, 2, and 3 above)
alleged by complainant, and that he indicated that complainant herself
engaged in explicit personal conversations, and that she never objected to
CW about his language or content of his conversations. The agency also
found that CW averred that he did not intend the hair color remark as
demeaning, noting that he would have apologized for making such a remark.
Additionally, the agency determined that an internal investigation of
the trailer incidents, which was prompted by complainant's report to
the human resources office, failed to uncover sufficient evidence of the
alleged sexual touching, although noting that the investigator felt that
CW engaged in some degree of unacceptable behavior that upset complainant.
As a result, the agency found that CW received a Letter of Caution,
directing him to refrain from using language that could be interpreted
as sexual or offensive, prohibiting his contact with complainant, and
requiring him to undergo certain sexual harassment training. The agency
also indicated that S1 received a Letter of Counseling for failing to
report the sexual harassment in June 2001. Based on these findings,
the agency concluded that complainant failed to prove, by a preponderance
of the evidence, that she was subjected to sexual harassment.
As an initial matter, we note that because this is an appeal from
an agency final decision issued without a hearing before an EEOC
Administrative Judge, we apply a de novo standard of review. See 29
C.F.R. 1614.405(a).
The United States Supreme Court has recognized that a violation of Title
VII may be predicated on either of two types of sexual harassment: (a)
harassment that results in the employer taking a tangible employment
action against the employee; and (b) harassment that, while not resulting
in the taking of a tangible employment action, nevertheless creates a
hostile work environment. See Burlington Industries., Inc. v. Ellerth,
524 U.S. 742, 753-54 (1998).
To establish a prima facie case of hostile work environment due to
sexual harassment, a complainant must show that:
(1) she belongs to a statutorily protected class;
(2) she was subjected to unwelcome conduct related to her gender,
including sexual advances, requests for favors, or other verbal or
physical conduct of a sexual nature;
(3) the harassment complained of was based on sex;
(4) 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) there is a basis for imputing liability to the employer.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(Aug. 5, 1999)
Moreover, the harasser's conduct should be evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances.
See Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994).
In applying these legal standards to this case, we find that, on one
hand, the evidence of record consists of complainant's allegations,
as described in the enumerated incidents set forth above, and witness
statements attesting to CW's reputation for engaging in sexually
inappropriate conduct around women. On the other hand, the evidence
of record contains CW's denials, and witness statement attesting to
CW's reputation for gentlemanly conduct. In particular, one witness,
who also worked in the trailer with complainant and CW, attested that he
never observed CW conduct himself in an inappropriate manner, physically
or verbally, in complainant's presence, but could not say the same
for complainant. However, complainant contends that this witness is a
long-time friend of CW's, and that his testimony has limited credibility.
The record also contains the report of the agency's informal investigation
which found only enough evidence to raise a suspicion that CW engaged
in some sort of unacceptable behavior.
Incidents 1 and 2
With respect to the touching incidents, as reflected in incidents 1
and 2, we find that there are no witnesses, and complainant presents no
tangible evidence that her claims are true. We find that complainant
fails to demonstrate that these incidents occurred as claimed, and so
fails to satisfy any of the elements of the prima facie case set forth
above regarding these incidents.
Incident 4
Regarding incident 4, we find that CW admits that this incident
occurred, he disputes that his comments were sexually inappropriate or
otherwise demeaning to complainant.<1> We also find that a witness to
incident 4 (the co-worker who CW attempted to solicit a comment), who
appears to be impartial and credible, provided affidavit testimony that
this was a fairly innocuous exchange, devoid of sexual innuendo.<2> While
complainant contends that she felt demeaned by CW's comment about her
change in hair color, we conclude that the record fails to support that
a �reasonable person,� in complainant's situation would have found his
comments to be sexually offensive. Even when viewed within the context
of her entire claim of sexual harassment, we find that complainant here
fails to satisfy prongs 2 and 3, and so fails to establish a prima facie
case of sexual harassment regarding incident 4.
Incident 3
Regarding CW's purportedly sexually offensive verbal conduct, as
reflected in incident 3, we again find that there are no witnesses to
support this claim. Moreover, we note the affidavit evidence generally
describing CW's reputation for sexually harassing conduct is contradictory
and inconsistent. Additionally, while we find that the witness who worked
in the trailer along side CW and complainant could best describe whether
or not the atmosphere was tinged with sexual harassment, we agree with
complainant that his credibility is at least somewhat diminished given
his long-time friendship with CW.
Notwithstanding this inconclusive affidavit evidence, however, given
that the report of the agency's informal investigation reflects that
CW probably engaged in some sort of inappropriate conduct, short of the
touching, as well as the evidence that CW was officially reprimanded for
this conduct with a Letter of Caution, we find that complainant presents
sufficient evidence to demonstrate that incident 3 occurred as claimed.<3>
Therefore, we find that as to incident 3, complainant established prongs
1, 2, and 3, of a prima facie case of sexual harassment due to a hostile
work environment. See McCleod, supra.
Next, in addressing whether complainant satisfies prong 4 of the prima
facie case analysis with respect to incident 3, we note that harassment
is actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Here, despite careful review of the record, we find no evidence to suggest
that the sexual harassment claimed by complainant adversely interfered
with her ability to do her work, or her overall work conditions.
In responding to this question in her affidavit, complainant vaguely
indicates that she felt �depressed� and could not tell her husband for
a long time because she felt �filthy.� In this regard, we note that
while the comments alleged to be uttered by CW are clearly vulgar, and
apparently occurred on at least an occasional basis, possibly more,
the conduct was nonetheless confined to a two to three month period,
and the statements, while offensive, were not of a threatening or
intimidating nature.<4>
Moreover, we find that complainant claims that she became upset after
she reported sexual harassment to S1 in June 2001, because instead of
S1 investigating the situation and reprimanding CW, she instead gave
him a larger performance award than complainant received. While we
note that complainant avers that incident 4 marked the point at which
she could endure no more, we
also note that complainant admits that there were no acts of sexual
harassment by CW toward her from June 2001, until incident 4 occurred
in mid-August 2001. We also note that the human relations office had
begun its investigation of complainant's report of sexual harassment
immediately prior to incident 4. Additionally, although complainant
contends that she became so stressed she could no longer come to work,
we find that she presents no evidence to corroborate her claimed stress
level. We note that complainant claims that she is under a physician's
care for stress, but she presents no documentary evidence to confirm
this, or to otherwise describe the nature and extent of her emotional
suffering as it relates to the claimed sexual harassment.
Therefore, we find that incident 3, even when considered within the
entire context of complainant's sexual harassment claim, had neither the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment,
such that complainant fails to establish a prima facie case of sexual
harassment regarding this incident.
Therefore, after careful review of the record, and considering
complainant's entire sexual harassment claim, we find that complainant
fails to demonstrate a prima facie case of sexual harassment due to a
hostile work environment.<5>
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.<6>
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 20, 2003
__________________
Date
1CW attests that complainant dramatically changed her hair color from
brunette to blonde, and that he commented that he thought the brunette
color was preferable, engaging a co-worker to voice his opinion, which
he declined to do.
2Two other witnesses identified by complainant did not observe enough
of this exchange to be able to offer pertinent testimony.
3In describing incident 3, complainant sets forth the following in
her formal complaint: �At the time of these incidences (referring to
incidents 1 and 2), [CW] made several comments of a sexual nature that
were unwelcome. He stated on several occasions that he would like to
�f�k� [a named] co-worker. He stated he would like to perform oral sex
on [a named co-worker] by commenting that he would like to �have her
for lunch.' On other another occasion as I was leaving work for the day,
[CW] told me to be a good wife and �go home and f--k your husband.'�
4As opposed to the �several� comments alleged in her formal complaint,
complainant, in her affidavits, instead avers that the comments by
CW were made �daily.� However, we find that complainant provides no
corroboration whatsoever for either statement.
5Because we find that complainant fails to demonstrate a prima facie case
of sexual harassment due to a hostile work environment, we do not reach
the issue of whether the agency successfully asserted an affirmative
defense to avoid liability. See EEOC Policy Guidance on Current Issues
of Sexual Harassment, N-915-050, No. 137 (March 19, 1990);
6In her formal complaint, complainant also avers that the agency denied
her request for leave as reprisal for reporting the sexual harassment.
This matter was not raised during EEO counseling, and it was not addressed
during the investigation or in the agency's final decision. Therefore,
if she has not already done so, we advise complainant that should she
wish to pursue this matter, she should contact an EEO Counselor thereon.