0120062642
11-15-2007
Wendy W. Betzler, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Wendy W. Betzler,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200626421
Hearing No. 340-2003-3346X
Agency No. 0261338002
DECISION
On March 20, 2006, complainant filed an appeal from the agency's February
17, 2006 final order concerning her equal employment opportunity (EEO)
complaint alleging 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. For the following reasons, the Commission AFFIRMS the
agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Softlines Division Manager, NF-4, at the agency's Exchange Store
in Port Hueneme, California.
On January 22, 2002, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against when she was subjected
to a hostile work environment on the basis of sex (female) as follows:
1. On February 14, 2000, the Navy Exchange Service Command, Director
of Logistics, threatened complainant's career, placed his arm around
complainant's shoulders, and on another occasion he put his hand over
her shoulder, sliding it down her arm to her hand, which he proceeded
to hold for a second before letting go.
2. On August 25, 2000, the General Manager for the Port Hueneme Navy
Exchange, came into complainant's office and stood very close to her,
then touched the nape of complainant's neck under her hairline, and stated
"Well, don't you look pretty in pink."
3. On September 29, 2000, the General Manager asked complainant to
dinner in order to discuss her work performance review provided by the
previous General Manager. During dinner, the General Manager offered
to help complainant's career if she would trust him, do as he says,
and stay sweet.
4. On November 19, 2000, complainant met with the General Manager
regarding problems she was having with three coworkers. During this
meeting with the General Manager, the General Manager informed complainant
that the problem was her and not with the people she had mentioned.
The General Manager further informed complainant that she was overbearing
and unapproachable.
5. On November 21, 2000, the General Manager began yelling at complainant
during the Associate rally. Complainant stated that the General Manager
screamed, "Stop being such a fucking victim" and that he reached out as
if to grab her by the neck and choke her.
6. On January 7, 2001, a sexually graphic graffiti was written in the
Associate restroom stating, "[Wendy] sucks [Person A's] dick".
7. On February 7, 2001, the General Manager stated to complainant and
the Loss Prevention Manager that "you two remind me of Frick and Frack".
8. On February 8, 2001, the Receiving Manager joked to complainant about
how everyone knows about complainant and the Autoport Manager.
9. On February 21, 2001, the General Manager made statements about a
special relationship complainant had with the Loss Prevention Manager
and requested that she keep him informed regarding anything going on
with the Loss Prevention Manager.
10. On March 8, 2001, the General Manager called complainant into his
office and asked what her plans were regarding her relocation back to
San Diego. The General Manager offered his assistance regarding her
relocation and informed her that the District Manager wanted him to
facilitate her move out of the Exchange system.
11. On March 29, 2001, the General Manager told complainant that her
perception is reality, considering the hostility between her and the
Hardlines Division Manager.
12. On April 20, 2001, complainant and the General Manager had a
discussion where complainant claims that the General Manager went into
her office, shut the office door, and began yelling at her. Complainant
also contends that the General Manager stated that he was the General
Manager and he would do whatever he wanted to do and that she was not
to question him. Complainant also alleges that the General Manager told
her that she was overbearing.
13. On April 30, 2001, the General Manager went into complainant's office
and threw operating statements on her desk and, and as he walked away,
he stated "Here, if you have nothing better to do."
14. On May 3, 2001, the General Manager called complainant into his office
and informed her that the Receiving Manager was afraid to tell her that
he had seen some of her subordinates goofing off in the Shoe Department.
15. On May 17, 2001, complainant contends that the General Manager
ignored her request for assistance regarding a coworker's interference
with her ability to supervise her subordinates. Complainant alleges
that the General Manager responded by telling complainant to resolve it
on her own.
16. On June 26, 2001, complainant was handed a piece of paper by one
of her subordinates from the customer restroom. It was a sign that
asked the customers to not dispose of sanitary napkins in the toilet.
Someone had written on the sign "[Person A] and Wendy."
17. On July 15, 2001, the General Manager forwarded complainant's
e-mail regarding missing shipments of uniforms to the Navy Exchange
Systems Headquarters. Complainant contends that the General Manager
later informed her "I have read your e-mail at least a dozen times to find
something to blame you for, but I can't find anything wrong with it."
18. On August 25, 2001, the General Manager had a discussion with
complainant regarding the issues that exist between complainant and the
Hardlines Division Manager.
19. On September 20, 2001, complainant walked into the administrative
office of the Port Hueneme Navy Exchange and overheard the General
Manager telling a coworker that he felt a special relationship between
complainant and the Loss Prevention Manager was a conflict of interest
and solicited her opinion.
20. On October 18, 2001, complainant was issued a Letter of Caution by
the General Manager.
21. On October 31, 2001, complainant submitted a letter of resignation
effective November 9, 2001, because of the alleged hostile work
environment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing and issued a decision on
January 10, 2006, finding that no discrimination occurred.
The AJ found that complainant's testimony contained significant
discrepancies and inconsistencies. With regard to the incident cited
in the first claim, the AJ found that complainant did not refute her
former supervisor's testimony that the Acting District Manager had not
touched her. The AJ noted with regard to the incident referenced in
claim (2) that the Hardlines Division Manager who shared complainant's
office testified that the General Manager did not touch complainant on
the day in question and did not use the word pretty. As for the incident
cited in claim (3), the AJ found that complainant's contention that the
General Manager met with her offsite in order to make sexual advances was
contradicted by the record which clearly established that the District
Manager instructed the General Manager to meet with complainant out of the
worksite to discuss complainant's performance evaluation. The AJ based
his finding that complainant lacked credibility in part on the testimony
of the Loss Prevention Manager that contradicted complainant's assertion
that they did not have a sexual relationship. Further, the AJ found that
complainant's testimonial demeanor, deportment and posture appeared wholly
inconsistent with her claims that she was intimidated or had fears about
the repercussions of any of her supervisors or coworkers. The AJ noted
that complainant appeared to lack sincerity and her testimonial demeanor
and disposition did not give the appearance of a person who would let
a situation get out of her control. The AJ found that complainant's
testimonial demeanor was consistent with the testimony of several
officials and coworkers who described her as controlling, disdainful,
dismissive and condescending.
The AJ found that based on the totality of the circumstances, the
identified hostile work environment incidents did not occur because of
complainant's sex but were a result of complainant's personality which
offended, or was misunderstood, by her coworkers, as well as the affair
that complainant and the Loss Prevention Manager attempted to conceal.
The AJ observed that a witness who worked with complainant in the Naval
Exchange and a prior place of employment testified that complainant
had personality conflicts with her coworkers, although he thought she
was misunderstood. The AJ noted that this coworker testified that he
thought complainant was a little paranoid, yet a good person and skillful
manager. According to this witness, at both places of employment people
were intimidated by complainant's direct communication style and body
language. This witness also testified that complainant had a tendency
to get defensive and suspicious very quickly when she felt any type of
threat or she perceived that someone did not like her. This witness also
testified as to the perception of coworkers that complainant was not
an active or willing team player, and that subordinates, counterparts
and superiors often were uncomfortable and felt somewhat threatened
knowing that she was always writing notes regarding conversations and
behaviors.
The AJ observed that complainant grouped the General Manager's actions
into categories of denigrating her character; finding problems with her
performance; and putting words in her mouth/creation of hostility with
coworkers. However, the AJ stated that complainant offered substantial
testimony that the General Manager acted similarly to other employees,
two of whom were male. As for the General Manager's alleged anger and use
of vulgar language, the AJ noted that complainant's testimony indicated
that such conduct was directed to males as well as female employees.
The AJ found that the General Manager's use of such language on several
occasions had no obvious or even subtle connection to sex or sexual
acts, but instead conveyed anger regarding employees' job performance.
With regard to the graffiti related incidents, the AJ stated that the
conduct, while offensive, does not rise to the level of harassment for
which Title VII offers a remedy and he did not find such conduct, either
viewing the incidents on their own or cumulatively to be so severe or
pervasive that a hostile work environment based on sex was created.
The AJ found that complainant did not proffer any evidence except for
her own subjective conclusions which would reasonably suggest that the
underlying motivation of these persons she suspected of writing the
graffiti was that of complainant's sex.
Complainant argues that the Loss Prevention Manager was not a credible
witness and that the AJ erred in believing his testimony. Complainant
denies that she had an affair with the Loss Prevention Manager.
Complaining claims that the Loss Prevention Manager lied about having
an affair with her in order to protect his job as he had been negligent
in his duties and was caught committing a felony. Complainant argues
that the Letter of Caution was false and that the General Manager would
use any lie or false statement to initiate the procedure to fire her.
With regard to the graffiti, complainant maintains that there were
several instances of graffiti concerning the alleged affair between
her and the Loss Prevention Manager. Complainant states that in all of
these instances Management was notified and it did nothing other than
remove the graffiti. Complaint states sexual harassment training was
not held and that no attempt was made to stop the graffiti.
In response, the agency asserts that the AJ correctly noted that
complainant had no witnesses who would confirm her perception of the
alleged incidents. The agency argues that complainant's version of the
incidents contains significant discrepancies and inconsistencies. The
agency notes that even assuming that all the identified incidents occurred
in the manner as described by complainant, the AJ nevertheless found
that complainant failed to establish a prima facie case of harassment
based on sex. Further, the agency states that the AJ concluded that the
incidents either standing alone or cumulatively were not so egregious
as to render complainant's work environment hostile under Title VII.
The agency maintains that the AJ had ample opportunity to conclude that
complainant was not to be believed due to her demeanor.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
In order to establish a prima facie case of sexual harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that she is a member of a statutorily protected
class; (2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that
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) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994).
Upon review of the record, it is evident that except for the grafitti
related incidents, the matters at issue largely are based on complainant's
version of events as opposed to the version presented by various
individuals. We agree with the AJ that complainant's testimony was
generally lacking in credibility in comparison with that of the General
Manager and other agency personnel. Indeed, the record supports the
agency's position that complainant's difficulties at work were largely
due to her overbearing and contentious personality. Further, to the
extent that the General Manager may have used offensive language on
occasion, the evidence does not support the position that such remarks
were based on complainant's sex. As for the episodes of grafitti, the
record indicates that the grafitti was promptly addressed by the agency
and that the incidents, while offensive, were not of sufficient severity
or pervasiveness to constitute a hostile work environment based on sex.
As for complainant's claim of sexual harassment with regard to other
incidents, we find that complainant's testimony lacked credibility in
comparison with both that of her former supervisor who testified that the
Acting District Manager/Director of Logistics did not touch complainant
and that of the General Manager who testified that the dinner off the
worksite with complainant was devoid of sexual overtures or innuendo
and instead was focused on discussing her performance evaluation.
Upon review of the record, the Commission finds that the AJ's decision
finding no sexual harassment is supported by substantial evidence.
The agency's decision finding no discrimination is AFFIRMED.
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
November 15, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
??
??
??
??
2
01200626
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120062642