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