01a46192
05-26-2005
Donald Lewis, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Donald Lewis v. Department of the Army
01A46192
May 26, 2005
.
Donald Lewis,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A46192
Agency No. ARHQOSA02SEP0045
Hearing No. 100-2004-00158X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Computer Program Analyst at the
agency's U.S. Army Human Resources Command, filed a formal EEO complaint
on November 8, 2002. He alleged that the agency discriminated against
him on the basis of his sex (male) when his supervisor (S1) subjected
him to sexual harassment. He alleged that S1 made remarks of a sexual
nature about female employees while viewing them through binoculars
outside of his office window and that his supervisor regularly viewed
pictures of a sexual nature on his computer and invited complainant and
other employees to view the pictures.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sexual harassment because he failed to establish that S1's behavior
was unwelcome. She further found that even if true, S1's behavior which
occurred seven to eight times over a six week period, was not so severe
or pervasive that it altered the terms and conditions of his employment.
Furthermore, the AJ found that there was no tangible employment action
taken against complainant. In addition, the AJ found that the picture
allegedly being viewed on the computer was of a woman who �was wearing
a G string, something that can be found on most beaches,� and as such it
was not objectively offensive. (Emphasis in the original). According to
the AJ's findings, this was also true of an e-mail that S1 allegedly
sent to complainant and others which was entitled �Female or She-male.�
The AJ concluded the e-mail was not sexual in nature but merely depicted
head shots of women or of men made up like women and asked the reader
to guess whether the person was male or female. She decided that it
was not intended to suggest that complainant was homosexual.
Finally, the AJ found that complainant did not establish that the
agency knew about the allegedly offensive behavior, that he reported
the incidents to anyone or that he objected to the behavior. For these
reasons, the AJ found there was no showing of a prima facie case of
sexual harassment and that judgment for the agency was appropriate.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ's
decision was incorrect and that the incidents constituted sexual
harassment because the workplace was engulfed with discriminatory
intimidation, ridicule and insult. He reiterated that in addition to
being invited into S1's office to view nude women, he briefly observed
his supervisor's activity or overheard sexually oriented gestures
and comments coming from S1's office, while he was in his cubicle.
Complainant contends that witnesses corroborated that these incidents
occurred and that after he indicated his displeasure with the incidents,
he was ridiculed and shunned by his co-workers and supervisor.
The agency argues that even if the facts as alleged were true, complainant
did not establish he was harassed based on his sex. The agency asserts
that the conduct was common male socializing and banter which may have
been immature and boorish but is not covered by Title VII.
ANALYSIS AND FINDINGS
In deciding whether summary judgment was appropriate, we must apply the
elements of a harassment claim. Harassment of an employee that would
not occur but for the employee's race, color, sex, national origin, age,
disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger
a violation of Title VII must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant has alleged that he was subjected to a hostile work
environment because of sexual harassment. In order to establish a
prima facie case of hostile environment harassment, a complainant must
show that: (1) he is a member of a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on the statutorily protected class; and (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11.
Considering that complainant, a male employee alleged that his male
supervisor subjected him to sexual harassment, the Supreme Court has
held that same sex sexual harassment is an actionable claim. Oncale
v. Sundowner Offshore Svc. Inc. 523 U.S. 75 (1998). More specifically,
the court held that nothing in Title VII necessarily bars a claim of
discrimination �because of...sex� merely because the complainant and the
responsible management official are of the same sex. Id. As the court
observed, �harassing conduct need not be motivated by sexual desire to
support an inference of discrimination on the basis of sex.� Id.
Even so, complainant has not asserted a set of facts which if true, would
seem to a reasonable person, so intimidating, hostile or offensive that
they affected the terms and conditions of his employment. Although some
employees corroborated that some of these incidents occurred, there was
no supporting evidence that the incidents were objectively offensive or
that they were so pervasive as to create a hostile work environment.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__May 26, 2005________________
Date