Cindy Gergely, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 5, 2000
01a03091 (E.E.O.C. Jul. 5, 2000)

01a03091

07-05-2000

Cindy Gergely, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Cindy Gergely v. Department of the Navy

01A03091

July 5, 2000

Cindy Gergely, )

Complainant, )

) Appeal No. 01A03091

v. ) Agency No. 98-39228-001

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning her allegation that the agency violated Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal

is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the complainant has established

that the agency discriminated against her based on sex (female) when

she was allegedly harassed by a co-worker.

BACKGROUND

During the period in question, the complainant was employed as a Sales

Clerk at the agency's base in Norfolk, Virginia. The complainant

filed a formal complaint in March 1997 in which she raised the issue

identified above. Following an investigation, the complainant did not

request a hearing and the agency thereafter issued a final decision

(FAD) dated February 16, 2000, finding no discrimination. It is from

this decision that the complainant now appeals.

The complainant alleged that, shortly after being hired, another employee

(Employee A) began harassing her. In particular, the complainant

testified that Employee A told co-workers that she was �bossy,� and

stated further, �[Employee A] acted like she had animosity towards me.

She would talk about me behind my back and I could hear her. When I

would walk up to ask her why she was talking about me, she would deny

she was doing so. She would also ask me unnecessary questions.� In

response, Employee A denied having ever said or done anything to the

complainant that was unwelcome, and, in support of her position, none

of the individuals interviewed during the investigation had ever heard

Employee A refer to the complainant in a derogatory manner.

ANALYSIS AND FINDINGS

It is well-settled that harassment based on an individual's sex

is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57

(1986). In order to establish a claim of harassment under that basis,

the complainant must show that: (1) she belongs to the statutorily

protected class; (2) she was subjected to unwelcome conduct related to

her membership in that class; (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. Enforcement Guidance on Harris v. Forklift Systems Inc.,

EEOC Notice No. 915.002 (March 8, 1994).

In this case, the only example of unwelcome conduct the complainant has

identified is being called �bossy� by Employee A. Even assuming that this

is true, the statement does not, by itself, constitute discriminatory

harassment. Furthermore, although the complainant testified that she

heard Employee A �talk behind her back,� she has not identified what

Employee A allegedly said about her. In this regard, we note that

none of the witnesses who provided statements had ever heard Employee A

make derogatory statements about the complainant. For these reasons,

the Commission finds the complainant has not established a claim of

harassment. Accordingly, we find the complainant has not established

that she was discriminated against based on her sex.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that she was discriminated against as

alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-05-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

01 On 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.