Diana L. Pope, Complainant,v.Louis Caldera, Secretary, Department of the Army, (Army Corps of Engineers), Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01975488 (E.E.O.C. Apr. 26, 2000)

01975488

04-26-2000

Diana L. Pope, Complainant, v. Louis Caldera, Secretary, Department of the Army, (Army Corps of Engineers), Agency.


Diana L. Pope v. Department of the Army

01975488

April 26, 2000

Diana L. Pope, )

Complainant, )

) Appeal No. 01975488

v. )

) Agency No. AWGIFO9609G0070

Louis Caldera, )

Secretary, )

Department of the Army, )

(Army Corps of Engineers), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and reprisal (prior EEO activity), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> Complainant alleges that the agency failed and refused to

take prompt and effective action to stop and prevent ongoing harassment

by another federal employee. The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, we AFFIRM the agency's decision.

The record reveals that during the relevant time, complainant was

employed as a Purchasing Agent, at the agency's St. Louis District Office.

Complainant stated that between December 1994 and April 1996, she received

various items<2> from an anonymous person. In August 1995, complainant

raised her concerns with her supervisor and indicated that she believed

the responsible individual was an employee of the U.S. Coast Guard, a

different agency housed in the same building. Complainant's supervisor

advised her to bring her concerns to the agency's Security Office.

After a meeting with complainant and her supervisor, the Security

Office contacted Coast Guard Intelligence. After complainant identified

three potential suspects, the agency's Security Office and Coast Guard

Intelligence investigated and eliminated the three named individuals

as suspects. Upon advice from the Security Office and her supervisor,

complainant contacted the St. Louis City Police Department and filed a

report of the incidents.

In September 1995, complainant began to suspect another U.S. Coast Guard

employee ("CGE"). After confronted with complainant's allegations, CGE

admitted to giving complainant the various items. CGE stated that he

believed that he and complainant had a relationship and that she knew

he had sent the items.<3> After CGE was revealed, the Circuit Court

for the City of St. Louis issued a restraining order against him and

the U.S. Coast Guard ordered him to avoid any contact with complainant.

Complainant's supervisor instructed complainant not to go on the Coast

Guard floor of the building without being accompanied and provided a

"buddy" when complainant was required to be on that particular floor.

Complainant indicated that she felt that the agency did not do everything

necessary to identify CGE and rectify the situation. She stated that

they refused to fingerprint the items because they believed that it was

a Coast Guard problem. She further stated that the agency did not put

the necessary pressure on the Coast Guard to remove CGE from the facility.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on September 12, 1996.

The agency accepted the complaint for processing, and at the conclusion

of the investigation, complainant was granted thirty days to request a

hearing before an EEOC Administrative Judge. After complainant failed

to request a hearing, the agency issued a final decision finding no

discrimination.

The FAD concluded that complainant failed to establish a prima facie

case of reprisal discrimination because she presented no evidence of

any prior EEO activity. The FAD also concluded that complainant failed

to establish sexual harassment because: (1) the items sent by harasser

were not sexual in nature; and (2) once she informed agency management of

the problem, it took prompt and effective action to stop the harassment.

On appeal, complainant makes no new contentions, and the agency requests

that we affirm the FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), Hochstadt v. Worcester Found. for

Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd

545 F.2d 222 (1st Cir. 1976) and Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), the Commission finds that complainant failed to

present sufficient credible evidence demonstrating that she was subjected

to unlawful discrimination. We agree with the FAD that complainant

failed to present any evidence that she had any prior EEO activity which

is necessary to establish a prima facie case of retaliation. As for

complainant's sexual harassment claim, we also agree with the FAD that

complainant failed to establish she was a victim of sexual harassment.

The Supreme Court has established that sexual harassment in the workplace

violates Title VII and is actionable as a form of sex discrimination.

Meritor Savings Bank v. Vinson, 477 U.S. 57, 62-67 (1986). In analyzing

sexual harassment claims, the Court has identified two types of sexual

harassment: (a) harassment that conditions concrete employment benefits

on sexual favors ("quid pro quo" sexual harassment); and (b) harassment

that, while not directly affecting economic benefits, creates a hostile

or offensive working environment. Id. In this case, complainant

alleges that she was victim of the hostile environment type harassment.

To establish a prima facie case of hostile environment sexual harassment,

a 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> (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 McCleod v. Social

Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing

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).

To avoid liability for hostile environment harassment, an agency must

show that: 1) the conduct complained of did not occur; 2) the conduct

complained of was not unwelcome; 3) the alleged harassment was not

sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment; 4) immediate

and appropriate corrective action was taken as soon as the employer

was put on notice; or 5) there is no basis for imputing liability to

the employer under agency principles. See EEOC Enforcement Guidance:

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

(explaining standard for agency's liability for co-worker harassment).

Based on a review of the record, we find that complainant has failed to

establish a prima facie case of sexual harassment. We agree with the

agency that complainant has not demonstrated that the conduct directed

at her was sexual in nature or that, but for her sex, she would not have

been subjected to the treatment. The letters and gifts do not alone

suggest that CGE was making sexual advances or engaging in verbal or

physical conduct sexual in nature. Furthermore, there is no indication

that complainant's sex was the reason for CGE's behavior. The evidence

indicates that CGE believed that he and complainant were engaged in a

platonic relationship and that his actions were a means of supporting a

friend through difficult times. Complainant failed to explain how CGE's

delusional belief that they were engaged in a friendship constituted

sexual harassment. Finally, while we find that complainant failed to

establish a prima facie case of sexual harassment, we note that once

complainant informed the agency of her concerns, the agency took immediate

and appropriate corrective action, including investigating the facts,

coordinating with the Coast Guard Intelligence, referring her to the

local police, and providing her with a "buddy" when it was necessary

for her to be on CGE's floor. Therefore, after a careful review of the

record, including arguments and evidence not specifically addressed in

this decision, we AFFIRM the FAD.

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:

April 26, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 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.

2 These items included two letters, a prayer card, a picture of the

Virgin Mary, two angel birthstone pins, Thanksgiving and Christmas cards,

and a note.

3 In reviewing the affidavits of both complainant and CGE, it appears

that the two never had any relationship beyond exchanging pleasantries.

CGE's affidavit indicates that he read much significance in these brief

exchanges and believed that they shared a mutual personal relationship.

4 In addition to considering conduct that is explicitly sexual in nature,

the Commission will consider other conduct or comments which are related

to the complainant's gender.