01970860
09-23-1999
Diana S. Sewell, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Diana S. Sewell v. Department of the Navy
01970860
September 23, 1999
Diana S. Sewell, )
Appellant, )
)
v. )
) Appeal No. 01970860
Richard J. Danzig, ) Agency No. 95-65932-014
Secretary, )
Department of the Navy, )
Agency. )
_______________________________)
DECISION
INTRODUCTION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the agency's final decision (FAD)
concerning his allegation that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented in this appeal is whether appellant established that
she was discriminated against on the basis of her sex (female) when:
1) she was harassed by her supervisor when he required her to work the
second shift; and
2) she was not hired for a permanent GS-4 position.
BACKGROUND
Appellant filed a formal complaint, dated March 1, 1995, alleging the
above. Following an investigation of the above issues, appellant was
provided a copy of the investigative file and notified of her right to
request a hearing before an EEOC Administrative Judge. Since appellant
did not request a hearing, the agency, on September 19, 1996, issued
a final decision. The agency found that appellant had not been
discriminated against. This appeal followed.
The record indicates that on November 11, 1994, appellant was hired as a
Secretary, GS-04, in the Weapon Systems Engineering and Logistic Division
(Logistic Division). She was hired as a temporary employee for a period
of one year. In December 1994, however, she contacted the Civilian
Human Resources Office because she was not happy with her position as
a Secretary. Appellant was referred to the Technical Services Division.
Subsequently, appellant met with A-1, the Division Director, and A-2,
the Drawing Files Room Supervisor, to discuss a possible reassignment
to a File Clerk position in the Drawing Files Room. According to A-2,
he told appellant that eventually she would be required to work second
shift on a rotating basis. Appellant, however, stated that she did not
want such a schedule. Appellant's SF-171 indicated that she did not want
to work "weekends, shifts, or rotating shifts." According to appellant,
she was told that she would not be required to work second shift.
A-1 maintained that he only told appellant not to worry because it would
probably be months before she would be required to work second shift.
He emphasized, however, that he never told appellant that she would not
have to work second shift at some point in the future. A-2 agreed with
A-1's version of the conversation.
On December 12, 1994, appellant began working in the Drawing Room. A-1,
on December 14, 1994, wrote a letter to appellant's mortgagee indicating
that she was a permanent employee in his division. After initiating the
documents to reassign appellant from her secretarial position to the File
Clerk position, A-1 was informed by the Personnel office that appellant
could not be reassigned into a permanent clerk position because she was
hired as a temporary employee. Both A-1 and A-2 testified that they
did not review appellant's SF-171, prior to her interview, and assumed
that she was already a permanent employee when they discussed the move
with her.
On February 2, 1995, appellant was informed that a second shift had
been established and that she, along with the other five clerks,
would be required to work on it, on a rotating basis. A-2 prepared a
rotational schedule outlining the second shift assignments; however,
appellant refused to comply with the assignment.<1> On February 2,
1995, she contacted the EEO office and initiated the present complaint.
Appellant maintained that two male employees, C-1 and C-2, were not
given second shift assignments. Both A-1 and A-2 stated, however, that
C-1 and C-2 were also required to work second shift. The record also
contains a copy of the schedule, which indicates that both C-1 and C-2
were assigned to work on the second shift.
On February 6, 1995, a meeting was held involving appellant, her
husband, an EEO representative, A-1, A-2, the Division secretary,
and appellant's supervisor from the Logistic Division. During the
meeting, a determination was reached that appellant should be
returned to her original secretarial position. Upon being returned
to her former position, however, appellant submitted her resignation,
effective February 9, 1995. Appellant indicated that her resignation
was forced and constituted a breach of contract.<2> On March 5, 1995,
the agency hired a permanent employee (female) to work as a File Clerk.
This employee was also required to work shifts.
Appellant testified that, prior to the February 5, 1995 meeting concerning
the establishment of the second shift, A-1:
[p]ut his arm around me. He would come up to me and ask how things were
going and put his arm around my shoulder. I didn't say anything I just
moved back to get away from him. I felt intimidated when he did this.
There were other people present, but they were busy doing their jobs
....<3>
(ROI at page 41).
Finally, appellant maintained that she was discriminated against when
she was not hired for a permanent GS-4 Clerk position in the Technical
Services Division. According to appellant, a male, GS-3, clerk was
selected for a permanent position.
ANALYSIS AND FINDINGS
Allegation (1)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is
unlawful if it is sufficiently patterned or pervasive. Garretson
v. Department of Veterans Affairs, EEOC Appeal No. 01945351 (April 4,
1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985).
The Commission's Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) identifies two types of such harassment: (1) harassment
that results in a tangible employment action; and (2) harassment that
creates a hostile work environment. Based on the facts of this case,
we will analyze this matter as an allegation of harassment that creates
a hostile work environment.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Appellant alleged that she was harassed because of her sex when she was
required to work second shift. Taking into account the totality of the
circumstances here, we do not find that requiring appellant to work second
shift constituted harassment that would create a hostile work environment.
The record indicates that there were three men and three women working
as clerks in the Drawing Files Room. All six, including appellant,
were required to work second shift on a rotating basis. Therefore, we
find no basis for concluding that appellant was subjected to harassment
because of her sex.
Furthermore, to the extent that appellant was alleging constructive
discharge, such an allegation must fail. Constructive discharge generally
involves a showing that: 1) the employer subjected an employee to working
conditions that a reasonable person in the employee's position would find
intolerable; 2) discriminatory conduct created the intolerable working
conditions; and 3) the employee resigned involuntarily as a result
of the intolerable working conditions. See Harrell v. Department
of the Army, EEOC Request No. 05940652 (May 24, 1995); Simon v. USPS,
EEOC Request No. 05890464 (September 27, 1989). In the case at hand,
we find that appellant failed to establish that by requiring her to
work second shift, the agency subjected her to working conditions that
a reasonable person in her position would find intolerable or that
intolerable working conditions were created. We note, in this regard,
that the requirement of working on shifts appears to be a normal aspect
of the job in the Technical Services Division.
Finally, with regard to appellant's claim that she was sexually harassed
by A-1, it is well-settled that sexual harassment in the workplace
constitutes an actionable form of sex discrimination under Title VII.
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). Appellant,
in this case, must establish that: (1) she belongs to a statutorily
protected class; (2) she was subjected to unwelcome conduct related
to her sex, including sexual advances, requests for sexual 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. 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).
Assuming appellant's contention to be true, we find that she failed
to establish elements (2), (3), and (4) above. We find no persuasive
evidence that A-1's conduct, i.e., placing his arm around appellant's
shoulder and asking her how she was doing, when evaluated from the
objective viewpoint of a reasonable person in appellant's circumstances,
was related to her sex, based on her sex or had the purpose or effect
of unreasonably interfering with her work performance and/or creating
an intimidating, hostile, or offensive work environment.
Allegation 2
Appellant maintained that she was discriminated against when she was
not hired for a permanent GS-4 Clerk position in the Technical Services
Division. She presented no evidence, however, that she applied for
or requested consideration for such a position. The investigative
report indicates that, during the two-year period preceding appellant's
complaint, there were no temporary employees converted to permanent
positions in the Technical Services Division. (Investigative Report
at page 6). Furthermore, the agency indicated that all File Clerk
positions in the Drawing Files Room required the ability to work on a
rotating shift schedule.<4> Appellant already had indicated that she
was unwilling to work a rotating shift schedule.
We find that the agency articulated legitimate, nondiscriminatory reasons
for not selecting appellant for a permanent position in the Technical
Services Division. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). We further find that appellant has not established
that this reason was pretextual. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Accordingly, we find appellant
has not established discrimination with regard to this issue.
Accordingly, we AFFIRM the agency's determination that appellant did
not establish that she was discriminated against because of her sex.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 23, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant was assigned to the second shift from March 5, 1995 through
April 1, 1995.
2We note that the phrase "Forced Resignation & Breach of Contract"
appears on appellant's SF-50, as the reason for her resignation.
3Appellant's testimony is unclear with regard to whether this
incident happened once or occurred repeatedly. Although A-1 did not
directly address appellant's contention, he testified that "I have not
discriminated against [appellant] because of her sex, nor have I harassed
her." (ROI at page 59).
4A-2 testified that "all of my employees were required to work the
rotating shift . . . no one was excluded."