01970412
10-04-2000
Donna Parker, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Donna Parker v. Department of the Navy
01970412
October 4, 2000
.
Donna Parker,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01970412
Agency No. DON-93-00181-011
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged that she was discriminated against
on the basis of her sex (female) and when she was sexually harassed by
her supervisors and others from March through December of 1992.
The record reveals that during the relevant time, complainant was
employed as a Pipefitter Mechanic, WG-4204-10, at the agency's Norfolk
Naval Shipyard, Norfolk, Virginia facility. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on May 11, 1993. At the conclusion of the
investigation, complainant was provided a copy of the investigative
file and informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by the
agency. Complainant requested that the agency issue a final decision.
BACKGROUND
The majority of complainant's claims involved her second line supervisor,
a General Foreman, WS-14, who at some point in 1992, went on extensive
sick leave to recover from surgery and eventually retired. (Hereinafter
referred to as Responsible Management Official (RMO)-1). RMO-1 was alleged
to have sexually harassed complainant and was found by the agency to
have sexually harassed Co-worker A in a similar, yet separate complaint,
The facts are as follows. During the fall of 1992, Supervisor-1
(complainant's second line supervisor) notified Supervisor-2
(complainant's third line supervisor) about the complainant's alleged
reluctance to perform the duties of her position. Supervisor-1 opined
that RMO-1, complainant's former second-level supervisor, did not �push�
complainant to do her work. Consequently, complainant was counseled by
Supervisor-1 and in November of 1992, he issued complainant a Letter
of Reprimand for not staying in her workplace (Supervisor-1 averred
that complainant wandered from her work area a great deal). In an
attempt to get the Letter of Reprimand removed, complainant contacted
her union representative and alleged that she was being subjected to
unfair treatment. Thereafter, the union requested a meeting with the
Production Superintendent, RMO-2.
On December 4, 1992, RMO-2 met with complainant and her union
representative. Complainant maintained that her current supervisors
were attempting to intimidate her by asserting that her work was poor.
In order to rectify the situation, RMO-2 decided to reassign complainant
to another ship, the USS Eisenhower. Complainant objected to this
reassignment. A second meeting was held during which complainant
and a female co-worker (Co-worker A) asserted that they both had been
sexually harassed by RMO-1.<0> In response, RMO-2 canceled the Letter
of Reprimand and initiated an investigation of complainant's claims.
Thereafter complainant contacted an EEO counselor and alleged the
following specific incidents of harassment:
(A) in March 1992, on the first day of assignment the RMO-1, while in
front of other employees, stated that complainant should expect that some
employees will say that she is the �boss girl� and that complainant has
performed a sexual act for the boss under the desk;
(B) during the summer of 1992, RMO-1 gave complainant a key so that
she should meet him in the shop after hours;
RMO-1 stated that he lusted for complainant's body and wanted to have
a �threesome� with complainant and a female co-worker (Co-worker A);
RMO-1 asked complainant for a kiss;
in July 1992, when complainant gave a watch to Co-worker A, RMO-1 accused
complainant of having a homosexual relationship;<2>
RMO-1 stated, while rubbing complainant's knee, that a cash award could
be given for treating the boss �good;�
RMO-1 requested that complainant meet him at a hotel;
(H) on several occasions during August through October while working
aboard the USS America, RMO-1 grabbed complainant and pulled complainant
on top of him onto a bunk bed;
the Project Manager (who worked in the same shop), RMO-4, stated that
complainant was sexually involved with RMO-1, grabbed complainant, told
complainant she was worthless, and complained about the way she dressed;
in November or December 1992, RMO-3 (a Pipefitter Foreman who also worked
inthe same shop), followed complainant to the EEO office and threatened
to sue complainant for slander if she named him in any sexual harassment
complaints; and told complainant that he did not like the fact that she
named some of his friends in the EEO complaint.
the agency's EEO office refused to allow complainant to file an EEO
complaint;
In the FAD, the agency concluded that complainant's allegations failed
to establish a prima facie case of sexual harassment, noting that with
exception of being accused of having a homosexual relationship with
Co-worker A, complainant's alleged incidents of sexual harassment
differed from the statements submitted by her supervisors and
fellow co-workers. The agency found that while an objective employee
substantiated that Co-worker A was harassed by RMO-1,<3> no objective
employee substantiated complainant's allegations.
Assuming, arguendo, that the acts did occur, the agency asserted that
complainant presented no evidence that the acts were not unwelcomed.
The agency made reference to certain affidavits of record which made
mention of complainant's alleged �friendliness� and �mutual� relationship
towards RMO-1, and her alleged �filthy mouth�, and then concluded that
the record showed that the acts she complained of were not unwelcomed.
The final decision concluded that complainant failed to demonstrate
by a preponderance of the evidence that she was sexually harassed.
More importantly, the agency asserted, that upon hearing of complainant's
allegations, management promptly began its investigation. This was in
contrast to the situation of Co-worker A. In that situation, during
the summer of 1992, management was made aware that RMO-1 physically
touched Co-worker A and called her but failed to take any action until
December 1992. In any event, the agency found that the investigation of
complainant's allegations failed to uncover any evidence to substantiate
complainant's claims. The agency further noted that ultimately, pursuant
to complainant's request, she was reassigned to the same job under the
same supervisor as Co-worker A thereby finding that the agency took
appropriate action in complainant's case.
On appeal, complainant relies on the record as heretofore assembled;
however, she argues that there is no legal requirement that her testimony
be corroborated as the agency contends. Moreover, complainant argues
that her testimony is far more credible than that of the RMO-1. RMO-1 is
the same individual who categorically denied the accusations of Co-worker
A in another sexual harassment case. Those accusations were subsequently
found by the agency to have occurred in Weeks v. Department of the Navy,
DON No. 93-00181-012 (September 1995).
ANALYSIS AND FINDINGS
It is well settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of sexual harassment, 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) 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); see also McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999). 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).
Regarding element (1), complainant has established that she is a member
of a statutorily protected class. With regard to elements (2) and (3),<4>
the Commission finds that the conduct in question was clearly related
to complainant's gender in that RMO-1 called complainant �his girl� and
asked complainant for a kiss. While RMO-1 denied this action, Co-worker
A substantiated these actions as evidenced in her interview statements.
The contact, as well as comments, were clearly unwelcomed given that after
a number of incidents, some not addressed in this decision, complainant
and Co-worker A admonished RMO-1 for his behavior. Based on the evidence,
we find that complainant's working environment was a hostile one.
Turning to element (4), the agency offered nothing to suggest that this
unwelcomed conduct, should not be viewed as sufficiently offensive to
alter the conditions of complainant's working environment. The agency
focused, rather, on the complainant's inability to substantiate her
allegations with an �objective� witness; and furthermore, attempted
to establish that RMO-1's conduct was not unwelcomed by disparaging
complainant's character. We find, however, that complainant has
established element (4).
The complainant alleged at least eight provocative incidents by RMO-1
between March and December of 1992, enumerated above. While RMO-1
wholly denied these incidents in question, we find the denials not
credible. First, Co-worker A substantiated complainant allegations with
regard to RMO-1 calling complainant �his girl,� requesting a kiss from
complainant. Second, and more importantly, the agency itself found that
RMO-1 had engaged in similar unwelcome activities of a more egregious
sexual nature with Co-worker A in a separate sexual harassment complaint.
The incidents directed at the complainant by RMO-1 were especially
egregious since he was in a position of supervisory power over her. Given
that his actions were unwelcome, and their frequency, they rose to the
level of creating an offensive working environment for the complainant.
In considering whether complainant has satisfied element (5),
the Commission notes that the agency is potentially liable for the
harassment when it is �created by a supervisor or someone with immediate
(or successively higher) authority over the employee.� Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93
(1998). When the harassment does not result in a tangible employment
action being taken against the employee, the employer may raise an
affirmative defense to liability. The agency can meet this defense, which
is subject to proof by a preponderance of the evidence, by demonstrating:
(a) that it exercised reasonable care to prevent and correct promptly
any sexually harassing behavior; and (b) that complainant unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the agency or to avoid harm otherwise. Burlington Industries,
Inc. v. Ellerth, 118 S. Ct. at 2270; Faragher v. City of Boca Raton,
118 S. Ct. at 2293; see also Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (Enforcement Guidance),
EEOC Notice No. 915.002 at 12. (June 18, 1999). This defense is not
available when the harassment results in a tangible employment action
(e.g. a discharge, demotion, or undesirable reassignment) being taken
against the employee.
Because the record clearly indicates that RMO-1 exercised supervisory
authority over complainant, the agency is subject to vicarious liability
for his harassment. In determining whether the agency can raise a defense
to that liability, we initially find insufficient evidence to conclude
that the harassment resulted in a tangible employment action. In this
regard, the only employment related action of record was the issuance
of the Letter of Reprimand for her alleged poor work performance and
the attempt to reassign her to another ship in order to rectify the
situation. However, as discussed previously, after complaining about
the RMO-1's advances, the Letter of Reprimand was canceled and the
complainant's objection to the reassignment appears to have canceled
that employment action as well. In light of the above, complainant has
not demonstrated that the sexual harassment affected a tangible aspect
of her employment.
Because the harassment did not result in a tangible employment action,
the agency can avoid liability for the harassment by satisfying the
affirmative defense. Whether an employer can meet the first prong of that
defense, i.e., that it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, depends on the circumstances
of the particular situation. Vicarious Liability Guidance, at 15.
At a minimum, however, the employer must have a policy and complaint
procedure against the harassment that contains the following elements: (1)
a clear explanation of what constitutes prohibited conduct; (2) assurances
that employees who bring complaints of harassment or provide information
related to such complaints will be protected against retaliation; (3)
a clearly described process that provides possible avenues of complaint;
(4) assurance that the employer will protect the confidentiality of
harassment complaints to the extent possible; (5) a complaint process
that provides a prompt, thorough, and impartial investigation; and (6)
assurance that the employer will take immediate and appropriate corrective
action when it determines that harassment has occurred. Id. at 17.
Based on the Commission's review of the record, it is not apparent that at
the time RMO-1 began harassing complainant that the agency had a policy
and complaint procedure in place which contained all of these elements.
Although the record contains an Sexual Harassment Policy Statement which
sets forth an extremely general statement on sexual harassment, it is
undated. The record also contains a Sexual Harassment Prevention Training
Notice, dated August 10, 1992. The Commission notes, however, that the
issuance of this sexual harassment training notice postdates by several
months the period during which complainant began to be harassed. Moreover,
is also not apparent from the record that this training contained any
of the aforementioned elements. Therefore, we find that the agency has
failed to establish the first prong to the affirmative defense.
Furthermore, we find that the agency has failed to establish the second
prong as well, i.e., that the complainant unreasonably failed to take
advantage of preventive or corrective opportunities. Although complainant
did not report RMO-1's actions to management until December of 1992
after a series of incidents had occurred, she was prevented from a filing
a complaint sooner. The record shows that complainant and Co-worker A
attempted to report the harassment to the EEO Office at the Norfolk Naval
Shipyard in October 1992. They support each others' statements that the
EEO Intake Counselor refused to allow them to file a complaint because
the EEO Counselor stated that she knew the RMOs involved and told them
(complainant and Co-worker A) to straighten the matter out themselves
The record clearly shows that complainant, along with Co-worker A, found
RMO-1's behavior inappropriate and sought the assistance of supervisors,
managers, and the agency's EEO Office but to no avail. In light of the
above, we find that the agency has failed to establish an affirmative
defense of vicarious liability for sexual harassment.
Having found that the agency failed to establish an affirmative defense,
the Commission finds that the agency is liable for RMO-1's harassment of
complainant. Therefore, after a careful review of the record, including
complainant's contentions on appeal and arguments and evidence not
specifically addressed in this decision, we REVERSE the agency's final
decision and REMAND this case to the agency to take remedial actions in
accordance with this decision and ORDER below.
The Commission additionally notes that complainant raised concerns
involving EEO matters. In her complaint, complainant alleged that
she was followed by RMO-3 into the EEO office and he threatened her
if she filed a complaint. In addition, complainant alleges that the
EEO officer initially refused to allow her to file a complaint and
told complainant to �straighten out the matter herself� as set forth
above. The agency inexplicably did not address these allegations in its
final agency decision nor in response to complainant's appeal. Generally,
a remark or comment unaccompanied by concrete action is not a direct and
personal deprivation sufficient to render an individual aggrieved and,
therefore, such an allegation would fail to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). See Simon v. U.S. Postal Service, EEOC Request
No. 05900866 (October 3, 1990). In the case at hand, the act of following
complainant into the EEO office and the refusal to initially allow
her to file a complaint would have a potentially chilling effect on the
ultimate tool that employees have to enforce equal employment opportunity,
the filing of an EEO complaint. See George v. U.S. Postal Service, EEOC
Request No. 05980451 (October 8, 1998). In Crespo v. U.S. Postal Service,
EEOC Request No. 05920842 (September 17, 1993), the Commission held that:
The agency has a continuing duty to promote the full realization of
equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
Thus, the Commission is concerned by the agency's alleged actions and
failure to address them therein. As such, the Commission is directing
the agency to provide additional training on the importance of the EEO
process to management officials as well as to those in the EEO office
to ensure that such incidents, if true, will not occur again.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall take corrective, curative and preventive action to
ensure that sexual harassment does not recur, including but not limited to
providing training to all the Responsible Management Officials involved,
as well as the EEO Office at the Norfolk Naval Shipyard, Norfolk,
Virginia facility, and any other agency official formerly stationed at
this facility who took part in the discriminatory activities described
herein, in the law against sexual harassment and the importance of the
EEO process and practices. This training shall take place within 120
calendar days of the date this decision becomes final. Within thirty (30)
calendar days of the date the training is completed, the agency shall
submit to the Compliance Officer appropriate documentation evidencing
such training.
2. The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages for the
harassment. The agency shall allow complainant to present evidence in
support of her compensatory damages claim. Complainant shall cooperate
with the agency in this regard. Thereafter, the agency shall issue a
final decision. 29 C.F.R. � 1614.110(b). The supplemental investigation
and issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final. A copy of the
final decision must be submitted to the Compliance Officer, as referenced
below.
3. The agency shall work with complainant within thirty (30) days of the
date this decision becomes final to determine whether she used any leave
in connection with the sexual harassment . Complainant shall cooperate
with the agency's efforts to determine the dates and amount of leave
she used, if any. The agency shall return any such leave to complainant
within thirty (30) days of such a determination.
4. The complainant shall be awarded reasonable attorney's fees, as
provided below.
5. The agency shall post the attached notice, as provided below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Norfolk Naval Shipyard, Norfolk,
Virginia facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
October 4, 2000
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. has occurred at the Norfolk Naval Shipyard,
Norfolk, Virginia (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings. The agency shall
provide appropriate training to the responsible officials and ensure that
appropriate steps are taken immediately after management is notified of
any such harassment. The agency shall also pay the employee's attorney's
fees; and determining whether the employee is entitled to compensatory
damages. The facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
______________________________
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
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 29 C.F.R. Part 1614 in deciding the present appeal. The
regulations, as amended, may also be found at the Commission's website
at www.eeoc.gov.
0
2 We note that the EEOC does not have jurisdiction over claims of sexual
orientation discrimination. However, Federal agencies are barred from
discriminating on this basis under Executive Order 11478, as amended by
Executive Order 13087 (May 28, 1998).
3 Co-worker A also filed a formal EEO complaint based on sexual
harassment against RMO-1. In contrast to complainant's case, the agency
found that Co-worker A had in fact been subjected to sexual harassment
by RMO-1 basing its finding on the fact that a Pipefitter Foreman stated
that he observed RMO-1 go behind Co-worker A, put his hands around her
neck, waist, and sides, and pulled her chair from her desk towards him,
and placed his hands on her thigh and pulled her into his lap.
4There is insufficient evidence to support complainant's claims of sexual
harassment regarding RMO-4. Complainant did not raise allegations of
sexual harassment against RMO-2 and RMO-3.