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.