01996819
02-14-2002
Andrea C. Love, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Andrea C. Love v. Department of Veterans Affairs
01996819
February 14, 2002
.
Andrea C. Love,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996819
Agency No. 93-2012
DECISION
INTRODUCTION
On September 3, 1999, Andrea C. Love (complainant) filed a timely
appeal from the July 23, 1999 final decision of the Department of
Veterans Affairs (agency) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e-16 (1994 & Supp. V 2000). The appeal is
accepted in accordance with 29 C.F.R. � 1614.405. For the reasons that
follow, the agency's decision is affirmed.
ISSUE
The issues presented in this appeal are whether the complainant has
proven, by a preponderance of the evidence, that, because of her sex and
in reprisal for protesting the repeated and unwanted sexual advances of
her supervisor:
1) complainant was sexually harassed by her supervisor from January,
1989 through September, 1992;
her supervisor deleted her name from a list containing employees who
worked on a Home Oxygen Cost Study;
on September 4, 1992, she received a less than outstanding performance
appraisal, which also contained unnecessary hostile and nasty remarks;
in February, 1992, she received an unwarranted written counseling from
her supervisor.
Complainant additionally alleged that because of her sex and in
retaliation for contacting an equal employment opportunity (EEO)
counselor,
on September 21, 1992, she was ordered by her supervisor to return
early from a work-related conference; and
on September 25, 1992, she was removed from her position as Prosthetic
Regional Manager and detailed to another position.
BACKGROUND
At the time this complaint arose, complainant was employed as a program
analyst, serving as the agency's Prosthetic Regional Manager for an
assigned region. Complainant asserted that beginning in January, 1989
and continuing through her reassignment in September, 1992, she was
sexually harassed by her second-line supervisor (S), when he told her he
wanted to make love to her and made other lewd and suggestive comments;
he sent her numerous postcards; he slipped notes under her apartment door;
he sent her flowers; he kissed her in an elevator and repeatedly asked
her out. Complainant asserted that the events recounted in the issues
enumerated above occurred because she refused S's sexual advances, and
because she sought EEO counseling. None of complainant's allegations
of sexual harassment were corroborated, and in fact, witnesses attested
that not only did they never observe any sexual harassment by S, but it
was complainant who remarked that she was infatuated with S. S denied
any sexual harassment, and attested that it was complainant who made
overtures to him. S acknowledged that he sent cards to complainant and
asserted that from time to time he sent cards to employees. Copies of
cards contained in the record show that none contain sexual innuendo.
In its final decision, issued in the absence of a hearing request,
the agency found no sexual harassment on S's part, but found that it
did retaliate against complainant by reassigning her after she made
her informal complaint of sexual harassment discrimination. The agency
reinstated complainant to her former position with back pay, interest,
and benefits or training she would have otherwise earned but for the
retaliatory actions. The agency committed that it would cease engaging
in retaliation and provide complainant a workplace free from hostility,
offensive conduct or abuse, that she would not be retaliated against
for having pursued the instant complaint, and that it would consider
taking appropriate action against those officials who retaliated against
complainant. The agency directed the complainant to submit objective
evidence of her compensatory damages, and agreed to pay attorney's fees
and costs, upon submission of an appropriate verified statement of fees
and costs. Finally, the agency stated that it would post conspicuously
for 60 days a notice stating that it had violated discrimination laws.<1>
Complainant presented no argument on appeal; the agency argued that
complainant's appeal was untimely and that the agency's final decision
should be affirmed.
ANALYSIS
In order to establish a claim of sexual harassment, complainant must
show that: (1) she belongs to a statutorily protected class; (2) she was
subjected to unwelcome conduct related to her gender, including sexual
advances, requests for favors, or other verbal or physical conduct of a
sexual nature; (3) the harassment complained of was based on sex; (4)
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) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Equal Employment Opportunity Commission Enforcement (EEOC) Guidance on
Harris v. Forklift Systems Inc., (March 8, 1994); Adams v. United States
Postal Service, EEOC Appeal No. 01976860 (Sept. 15, 2000)
Timeliness
In order to be considered timely, an appeal must be submitted within
30-days of receipt of a final agency action. 29 C.F.R. � 1614.402. The
agency's final decision is dated July 23, 1999. The agency produced no
evidence of the date of receipt by complainant. In her September 3, 1999
appeal to the Equal Employment Opportunity Commission (EEOC), complainant
asserted that she received the agency's final decision on August 10, 1999.
Because the agency produced no evidence of complainant's receipt date,
and where complainant asserted that she received the final decision less
than 30-days before she filed her appeal, we find her appeal timely filed.
Sexual Harassment
After a review of the record in its entirety, it is the decision of
the EEOC to affirm the agency's final decision. Complainant adduced
no evidence that she was subjected to unwelcome conduct related to
her gender. While S did send postcards to complainant, the absence of
sexual innuendo in any of S's writings and the absence of any evidence of
observed sexual harassment lead to the conclusion that sexual harassment
did not occur. Complainant's assertions that S sexually harassed her were
not borne out by the record. We have considered complainant's unsworn
declaration and the record of her EEO counseling as evidence that the
alleged discriminatory events occurred, and conclude that when compared
with the sworn attestations of her co-workers, the preponderance of
the evidence does not support complainant's view of the facts regarding
sexual harassment. We further conclude that the evidence supports the
agency's finding of retaliation.
CONCLUSION
For the reasons set out above, the agency's decision is affirmed and
remanded consistent with the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. If the agency has not done so, it shall reinstate the complainant
to the position of Regional Prosthetics Manager, GS-14, retroactive to
October 1, 1992 with back pay (less interim earnings), interest, and any
and all benefits or training she would otherwise have earned or received
but for the prohibited discrimination;
2. If the agency has not done so, within ten (10) calendar days of the
date this decision becomes final, the agency shall give complainant notice
of her right to submit objective evidence in support of her claim for
compensatory damages. This evidence should be submitted within forty-five
(45) calendar days of the date complainant receives the agency's notice.
The agency shall complete the investigation on the claim for compensatory
damages within ninety (90) calendar days of the date this decision
becomes final. Thereafter, the agency shall process the claim for
compensatory damages in accordance with 29 C.F.R. � 1614.108(f);
3. If the agency has not done so, it shall consider taking disciplinary
action against the employee(s) responsible for the discrimination herein.
The agency shall report its decision in its Compliance Report. If the
agency has taken or decides to take disciplinary action, it shall identify
the action taken in its Compliance Report. If the agency decides not
to take disciplinary action, it shall set forth in its Compliance Report
the reason(s) for its decision not to impose discipline;
4. 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 complainant (if
any), including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
If the agency has not done so, the agency is ordered to post at its
Central Office facility copies of the attached notice. 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.
ATTORNEY'S FEES (H0900)
If complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
February 14, 2002
__________________
Date
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-16 (1994 & Supp. V 2000) 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Department of Veterans Affairs, Central Office, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of Veterans Affairs, Central Office, has been found to
have retaliated against an employee because of her participation in
Equal Employment Opportunity protected activity, and has been ordered to
pay back pay and damages to the employee. The Department of Veterans
Affairs, Central Office, 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
and will not retaliate against employees who file EEO complaints.
The Department of Veterans Affairs, Central Office, 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: _________________________
1 We note that complainant's appeal did not challenge the agency's remedy.