Sandra D. Kretschmar,) Appellant,) v.) Richard J. Danzig,) Secretary,) Department of the Navy,) Agency.)

Equal Employment Opportunity CommissionApr 5, 1999
01961851 (E.E.O.C. Apr. 5, 1999)

01961851

04-05-1999

Sandra D. Kretschmar,) Appellant,) v.) Richard J. Danzig,) Secretary,) Department of the Navy,) Agency.)


Sandra D. Kretschmar,)

Appellant,)

)

v.) Appeal No. 01961851

)

) Agency Nos. DON-90-63387-037

) DON-91-63387-005 ) DON-91-63381-042

) DON-92-63387-003

)

Richard J. Danzig,) Hearing Nos. 340-94-3016X

Secretary,) 340-94-3017X

Department of the Navy,) 340-94-3018X

Agency.) 340-95-3021X

________________________________)

DECISION

On January 8, 1996, appellant timely appealed the final decision of

the Department of the Navy (agency), concerning her complaint alleging

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts this

appeal in accordance with the provisions of EEOC Order No. 960.001.

For the Following reasons, the agency's decision is REVERSED in part

and AFFIRMED in part.

ISSUES PRESENTED

Agency Complaint No. 90-63387-37:

Whether appellant was sexually harassed in 1990.

Whether appellant was disparately treated in the terms and conditions of

her employment on the bases of her sex (female) and race (white) in 1990.

Agency Complaint Numbers 91-63387-005 & 92-63387-003:

3. Whether appellant was discriminated against on the bases of her sex

(female) and/or race when she was hired as a WG-4 instead of a WG-5 on

or about February 4, 1990.

Whether appellant was discriminated against on the bases of reprisal

(prior EEO activity), race, and sex when (a) she was removed from federal

service on or about September 10, 1990;

and when (b) her workers' compensation (OWCP) claim was allegedly

interfered with on or about July 18, 1990.

Agency Case No. 91-63387-042:

Whether appellant was discriminated against on the bases of her sex and/or

reprisal when (a) her desk containing her belongings was moved from its

usual location and placed in the middle of the warehouse; and (b) her

co-workers treated her differently, smirked at her, talked about her,

and ignored her.

BACKGROUND

At the time these complaints arose, appellant was employed as

a probationary Warehouse Worker, WG-4 with the agency's Public Works

Center, San Diego, California. Appellant filed several formal complaints

alleging discrimination as stated above under �Issues Presented.�

Appellant's complaints were consolidated and accepted for investigation

by the agency. Thereafter, appellant requested a hearing before an

EEOC administrative judge (AJ). A hearing was held on May 17-20, 1994;

August 2-4, 1994; and September 13, 1994. On May 26, 1995, the AJ issued

a recommended decision finding that appellant was not sexually harassed,

but was subjected to a hostile work environment because of her gender

(female); appellant was not otherwise disparately treated on the bases

of her race or sex regarding the terms and conditions of her employment;

appellant was not discriminated against on any bases when she was hired

as a Warehouse Worker, WG-4; appellant was not discriminated on any bases

regarding the processing of her workers' compensation claim; appellant

was subjected to discrimination when she was removed from her position

as a Warehouse Worker, WG-4, and appellant was retaliated against but

not discriminated against based on her race and sex when her desk was

moved, her personal belongings were missing, and her co-workers treated

her differently the day after she filed her EEO complaint.

In a final agency decision dated December 7, 1995, the agency essentially

adopted the AJ's recommended decision with regard to all findings of no

discrimination and rejected all of the findings of discrimination. On

appeal, appellant contends that the AJ's findings of discrimination were

correct and further argues that the AJ's findings of no discrimination

were incorrect based on the facts and evidence received at the hearing

and found in the record.

ANALYSIS AND FINDINGS

After a thorough review of the record, including the hearing transcripts

and the parties' statements on appeal, the Commission finds that the

AJ correctly set forth the facts giving rise to the complaint and the

law applicable to the case. As we discern no legal basis to reverse

the AJ's findings, we adopt her decision as our own in its entirety.

In support of our holdings we particularly note the agency's argument

asserting that the AJ made a legal error based on her factual findings,

as she concluded that the incidents appellant alleged created a hostile

work environment were not pervasive but were severe. Therefore, the

agency argues that there is no evidence that the incidents cited by

appellant were more than a few isolated actions. We disagree with the

agency's assessment of the facts and representation of the law regarding

appellant's claim of hostile environment. The Commission's case law

and policy guidance clearly states that harassment is actionable if

it is sufficiently severe or pervasive to alter the conditions of the

complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc. (510 U.S. 17, 21;

114 S.Ct. 367, 370 (1993)), Rideout v. Department of the Army, EEOC Appeal

No. 01933866 (November 22, 1995), and Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). While the trier of fact

should consider all relevant factors, no single factor (i.e. severity

of the offenses or frequency of the actions), is required to establish

a hostile or abusive work environment claim. Harris, 510 U.S. at 23;

114 S. Ct. at 371; EEOC Guidance at 6; and Cobb at 8. Consistent with

the policy and practice of determining whether a complainant's harassment

allegations are sufficient to state a hostile or abusive work environment

claim, the Commission has repeatedly found that the trier of fact must

consider all of the circumstances of the employee's work environment as

a whole and not just the alleged comments or incidents.

We further disagree with the agency's contentions that the record does

not establish that the actions by appellant's co-workers unreasonably

interfered with appellant's performance thereby creating an intimidating

hostile or abusive environment. The Commission has stressed that an

employee is not required to show any single factor in order to succeed on

a hostile environment cause of action. EEOC Guidance at 6. A female motor

vehicle operator testified about several offensive remarks and abusive

behavior that appellant's male co-workers subjected her to. The AJ made a

specific credibility finding determining that this corroborating witness

was credible. The Commission's review of the remarks and behavior

finds that they could reasonably be considered sufficiently severe

enough to create a hostile work environment. We further note that the

agency does not deny that these abusive incidents took place or that the

conduct complained of was �welcomed.� Finally, we agree with the AJ's

conclusion that appellant's supervisor had notice of the co-worker's

abusive behavior towards appellant but failed to take immediate and

appropriate corrective action. Based on these circumstances, the

Commission finds that the agency has failed to meet the criteria for

avoiding liability for hostile environment harassment based on sex.

Finally, the agency argues a different interpretation of the facts

surrounding appellant's removal. It further contends that even if it were

to accept the AJ's recommendation that the deciding officials comments

constituted direct evidence of retaliatory intent, there still would be

no violation of Title VII under the mixed motive theory. Under a mixed

motive theory the agency must prove, by a preponderance of the evidence,

that it would have made the same decision absent a discriminating factor

(reprisal). We find that the AJ more than adequately addressed this issue

in her RD and agree with her analysis of the allegedly nondiscriminatory

charges for removal made by the agency. We further find, as did the

AJ, that the agency failed to sustain its burden in a mixed motive

case, to prove by a preponderance of the evidence that it relied on

legitimate reasons for appellant's removal. In light of these findings,

the Commission finds no discernable basis on which to disturb the AJ's

finding of discrimination.

Finally, we find the agency's argument is without merit regarding the

AJ's finding of discrimination when appellant's desk containing her

belongings were removed from its usual location and placed in the middle

of the warehouse; and (b) when her co-workers treated her differently,

smirked at her, talked about her, and ignored her. Therefore, we find

no legal basis on which to disturb the AJ's holding on this issue.

We now turn to appellant's argument on appeal. Appellant essentially

contends that all of the AJ's findings of no discrimination should

be reversed. We disagree. In support of our holding we note that

the AJ made specific credibility findings regarding the credibility

of appellant's testimony on each issue she ruled against appellant.

It is the Commission's policy to defer to its judges on questions

of credibility. This is particularly true where the credibility

determination is based on witness demeanor or conduct as was the case in

the instant matter. See Watkins v. U.S.P.S., EEOC Appeal No. 01851205,

(1987), Juarez v. Department of Justice, EEOC Appeal No. 01872114 (1988),

citing Wren v. Gould, 808 F. 2d 493 (6th Cir. 1987).

Accordingly, based on the above findings, it is the decision of the Equal

Employment Opportunity Commission to concur with the AJ's recommended

decisions. Therefore, it is the decision of the Equal Employment

Opportunity Commission to REVERSE the final agency decision in part and

AFFIRM the agency's final decision in part. In accordance with this

decision, the agency shall comply with the order below.

ORDER

The agency is ORDERED to take the following remedial action:

1. Within sixty (60) days of receipt of this decision, the agency shall

offer appellant reinstatement to her position of Warehouse Worker, WG-4,

at the probationary level. Appellant shall be placed in a different

warehouse under the supervision of different supervisory officials in

order insure that the hostile environment will not recur. The offer

shall be made in writing. Appellant shall have 15 days from receipt

of the offer to accept or decline the offer. Failure to accept the

offer within 15 days will be considered a declination of the offer,

unless the individual can show that circumstances beyond her control

prevented a response within the time limit.

2. The agency shall award appellant back pay, interest, and all other

benefits she would have received absent discrimination. The agency shall

provide back pay to appellant from the effective date of discharge until

date of reinstatement. Appellant shall cooperate in the agency's efforts

to compute the amount of back pay and benefits due, and shall provide

all relevant information requested by the agency. If there is a dispute

regarding the exact amount of back pay and/or other benefits, the agency

shall issue a check to appellant for the undisputed amount it believes

to be due. Appellant may petition for enforcement or clarification of

the amount in dispute. The petition for clarification or enforcement

must be filed with the Compliance Officer, as referenced in the statement

entitled, Implementation of the Commission's decision.

3. If the offer of reinstatement is declined, the agency shall award

appellant a sum equal to the back pay she would have received computed

in the manner prescribed by 5 C.F.R. �550.805, from the effective date

of removal until the date the offer of reinstatement was declined.

Interest on back pay shall be included in the back pay computation.

The agency shall inform appellant, in its offer of reinstatement, of

the right to this award in the event the offer is declined.

4. The agency shall post copies of the attached notice at the United

States Navy, Public Works Center, San Diego, California. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

5. The agency shall provide training in the obligations and duties

imposed by Title VII to the supervisors responsible for the instant

action.

6. The agency shall pay appellant reasonable attorneys fees and costs

associated with the representation of all complaints upon which appellant

prevailed including the present appeal.

7. The agency shall reimburse appellant for reasonable cost of all

personal effects which were lost, or stolen as a result of the agency's

discriminatory actions.

8. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due appellant,

including evidence that the corrective action has been implemented.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to

File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil

action for enforcement or a civil action on the underlying complaint is

subject to the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993).

If the appellant files a civil action, the administrative

processing of the complaint, including any petition for enforcement,

will be terminated. See 29 C.F.R. �1614.410.

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:

4/5/99

______________________ ______________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission, dated , which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et al. has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The United States Navy, Public Works Center, San Diego, California,

supports and will comply with such Federal law and will not take

action against individuals because they have exercised their rights

under law.

The United States Navy, Public Works Center, San Diego, California,

has remedied the employee affected by the Commission's finding by

offering her reinstatement to her position of Warehouse Worker,

WG-4, or an equivalent sum, appropriate back pay and training in the

obligations and duties imposed by Title VII to the agency officials

responsible for the instant action. The United States Navy, Public

Works Center, San Diego, California, will ensure that officials

responsible for personnel decisions and terms and conditions of

employment will abide by the requirements of all Federal equal

employment opportunity laws.

The United States Navy, Public Works Center, San Diego, California,

will not in any manner restrain, interfere, coerce, or retaliate

against any individual who exercises his or her right to oppose

practices made unlawful by, or who participates in proceedings pursuant

to, Federal equal employment opportunity law.

________________________

Date Posted:

Posting Expires:

29 C.F.R. Part 1614