Tina M. Kratz, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionOct 9, 2003
01A24063 (E.E.O.C. Oct. 9, 2003)

01A24063

10-09-2003

Tina M. Kratz, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Tina M. Kratz v. Department of Transportation

01A24063

October 9, 2003

.

Tina M. Kratz,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 01A24063

Agency No. 1-01-1047R

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 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 an Air Traffic Control Specialist at the agency's Philadelphia

Air Traffic Control Tower. Complainant sought EEO counseling and

subsequently filed a formal complaint on January 21, 2001 (issue 1),

alleging that she was harassed on the basis of her sex by the Operations

Supervisor (OS) when she was hampered in her sequencing of aircraft on the

runway and when a comment was made about her having an odor. The agency

dismissed the complaint for untimeliness. Complainant appealed, and the

Commission reversed and remanded the complaint for further processing.

See Moore v. Department of Transportation, EEOC Appeal Number 01A13435

(August 8, 2001).<1> Upon remand, complainant amended her complaint,

alleging that she was subjected to unwanted touching on the basis of

sex and in reprisal for prior protected activity (issue 2).

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 found that, with respect to issue 1, complainant

failed to establish a prima facie case of sex based harassment.

Concerning issue 2, the agency found that complainant failed to establish

a prima facie case of sex harassment or retaliation. The agency concluded

that there was no discrimination. On appeal, complainant contends that

she continues to be harassed by others sympathetic to the OS who is on

extended leave. She asserts that the OS continues his illegal behavior.

The agency makes no contentions on appeal.

We find that this complainant should have been framed as one of sexual

harassment. The Commission's guidance points out:

The anti-discrimination statutes are not a "general civility code."

Thus, federal law does not prohibit simple teasing, offhand comments,

or isolated incidents that are not "extremely serious." Rather, the

conduct must be "so objectively offensive as to alter the 'conditions'

of the victim's employment." The conditions of employment are altered

only if the harassment culminated in a tangible employment action or

was sufficiently severe or pervasive to create a hostile work environment.

EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer

Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web

version) ("Vicarious Liability Enforcement Guidance"), at 4 [internal

notes and citations omitted]. To establish a prima facie case of

hostile environment harassment, a complainant must show that: (1)

she belongs to a statutorily protected class; (2) she was subjected to

harassment in the form of unwelcome verbal or physical conduct involving

the protected class; (3) the harassment complained of was based on the

statutorily protected class; and (4) the harassment affected a term or

condition of employment and/or had the purpose or effect of unreasonably

interfering with the work environment and/or creating an intimidating,

hostile, or offensive work environment. Humphrey v. United States Postal

Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

The harassment must have been "sufficiently severe and pervasive to alter

the conditions of complainant's employment and create an abusive working

environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);

see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

In the instant case, we find that complainant has failed to establish a

prima facie case of hostile work environment. Complainant is alleging

three instances of harassment. The investigation reveals that on November

8, 2000, the OS was supervising the complainant when the alleged aircraft

sequencing incident occurred. The investigation further reveals that

on the same day OS made a comment to a third party about an odor in the

building coming from someone in a skirt and complainant was the only

female on duty with a skirt. The OS admitted to touching complainant

on her arm on October 14, 2001. In this case, we find that the three

incidents of harassment at issue were not so severe or pervasive as to

have altered the conditions of complainant's employment by creating a

hostile work environment.

Concerning complainant's allegation of retaliation contained in issue

2, she can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case

of reprisal by showing that: (1) she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

she was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

Assuming, arguendo, that complainant states a claim of retaliatory

harassment, complainant did not establish a nexus between her EEO activity

and the touching incident. Therefore, we conclude that complainant has

been unable to establish a prima facie case of retaliation based upon

her EEO activity. Accordingly, 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

October 9, 2003

__________________

Date

1 Complainant filed the EEOC Appeal

No. 01A13435 under the name Tina M. Moore.