01970280
02-23-2000
Sonia Ferrer Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Sonia Ferrer v. Department of the Navy
01970280
February 23, 2000
Sonia Ferrer )
Complainant, )
)
v. ) Appeal No. 01970280
) Agency No. DON-93-00181-007
Richard J. Danzig, ) EEOC No. 120-94-5303X
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the appeal in accordance with EEOC Order No. 960.001.<1>
On March 17, 1993, complainant, a GS-6 Police Officer at the St. Juliens
Creek Annex (SJCA), Norfolk Navy Shipyard, filed a formal EEO complaint
alleging discrimination on the basis of her sex (female) when she was
harassed by the receipt of a Christmas card from her immediate supervisor
on or about December 28, 1992. Complainant also alleged that she was
discriminated against on the basis of sex (female) and in reprisal
for reporting a charge of sexual harassment when she was subjected to a
hostile environment in the form of verbal remarks and other improper acts
by supervisors in her department. Following the agency's investigation
of complainant's complaint, complainant requested a hearing. A hearing
was held on June 20, 1994.
On September 16, 1996, the AJ issued a recommended decision finding
no discrimination. In his decision, the AJ noted that complainant
testified that prior to the incidents alleged in the complaint, she had
received harassing phone calls from the facility. The AJ found that an
investigation was conducted, but management could not determine who had
initiated the phone calls. Furthermore, the AJ found that the agency's
action was sufficient to place employees on notice that such conduct
was inappropriate.
With respect to the incidents alleged in her complaint, the AJ found that
complainant failed to establish a prima facie case of sexual harassment
when she received a Christmas card from her first line supervisor (male).
The record reveals that complainant's supervisor gave complainant a
Christmas card on or about December 28, 1992, wherein the following
was written:
Season's Greetings and all good wishes for the New Year. [printed
message].
Merry Christmas BB. I say that with love so don't get mad. Thanks
[complainant] for the job you did for me this year. Get off S.L. (sick
leave) and I'll make you Sgt. You would make a good one.
Merry Christmas [complainant].
(Signed) [supervisor]
The supervisor testified that the initials "BB" stood for "Big Butt," a
term he previously used in a joking manner with complainant. He also
testified that complainant used to call him, "Mountain Man" also
in a joking manner. Although the AJ found that the use of the term
"BB" was inappropriate, he found that the nickname as well as entire
message on the Christmas card was not sufficiently offensive, shocking
or pervasive to rise to the level of sexual harassment. Nonetheless,
the AJ also found that once complainant alerted management to the matter,
complainant's third line supervisor conducted a "preaction investigation."
Furthermore, complainant's supervisor was relieved of his supervisory
duties, reassigned away from complainant and suspended for five working
days for "conduct unbecoming a supervisor." Therefore, the AJ found that
once complainant reported the incident involving the Christmas card, the
agency took immediate and appropriate action to remedy the situation.
Indeed, complainant testified that the supervisor did not harass her
again. In sum, the AJ found that the agency was not liable for sexual
harassment based upon the Christmas card incident.
Complainant also alleged that subsequent to the initiation of her sexual
harassment complaint, she suffered additional acts of harassment which
constituted a hostile environment based on her sex and in reprisal for her
EEO activity. Specifically, complainant testified that in early 1993,
a cartoon was posted in the office showing a stork trying to swallow a
frog grasping the storks neck to avoid being swallowed. At the top of
the cartoon, someone had written, "[d]on't ever give up [supervisor]!"
Complainant testified that she felt the cartoon was offensive because she
assumed the cartoon was in support of the supervisor after she complained
about the Christmas card. Complainant's third line supervisor testified
that after he was notified of the cartoon, he had it removed.
Furthermore, also in 1993, complainant testified that someone wrote "suck
wad" on the duty roster. Complainant testified that she was offended by
the sexual connotation and gave the roster to her second line supervisor.
The second line supervisor testified he investigated the matter, but
could not find out who wrote the statement. He did however, inform the
sergeants that such remarks were inappropriate. The AJ found that both the
poster and the note on the duty roster did not constitute sex or
discrimination based on reprisal.
Complainant claimed that when a new supervisor took over as shift
supervisor, he instructed complainant and other female employees that they
could not go to the restroom or get coffee. Furthermore, complainant
stated that the new supervisor's strict rules were in reprisal for her
filing an EEO complaint, and in an attempt to get the other employees
to blame complainant for the institution of strict rules. The AJ found
that the new rules applied to all employees, not just complainant.
Furthermore, the AJ found insufficient evidence that the new supervisor
changed the rules in order to retaliate against complainant for her
prior EEO activity.
Assuming arguendo that complainant established a prima facie case of sex
and reprisal discrimination, the AJ found that the agency had articulated
legitimate, nondiscriminatory reasons for instigating the new policies.
The new supervisor testified that he did not deny restroom use when
necessary. He also testified that he instructed both male and female
employees to obtain coffee prior to beginning their shift and not to "hang
out" in Building 305, where the coffee machine was located. According to
the second line supervisor, the change in rules was ordered by higher
level management. Although the AJ found that the change in rules came
close to the commencement of her complaint, he found no evidence that the
agency discriminated against complainant when it initiated the new rules.
Lastly, complainant testified regarding a hostile environment which
existed during a sexual harassment training session. With respect to
this incident, the AJ found that however inappropriate, the fourth line
supervisor arranged for a second training session which occurred without
incident. Furthermore, the EEO Specialist who conducted the training
testified that the fourth line supervisor was supportive and sincere
about his concerns regarding sexual harassment issues at the facility.
The AJ also found that the training incident was isolated and did not
rise to the level of sexual harassment. Thus, the AJ found that once
alerted to the first shift's behavior during the training session,
the fourth line supervisor took immediate action to remedy the problem.
Accordingly, he found that this incident did not render the agency liable
for sexual harassment.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant
facts and properly analyzes the appropriate regulations, policies
and laws. The Commission has reviewed complainant's statement on
appeal and discerns no basis in which to disturb the AJ's finding of
no discrimination. On appeal, complainant argues that the AJ examined
each incident individually, and not cumulatively. Thus, complainant
argued the agency's actions amounted to sexual harassment or harassment
based on reprisal. While we do not condone the behavior exhibited by
complainant's co-workers or the language used by the supervisor in his
Christmas card, we agree with the AJ's finding that taken as a whole,
the incidents alleged do not constitute actionable sexual harassment
or harassment based on reprisal pursuant to Title VII. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 23, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ _________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.