Donna Parker, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 4, 2000
01970412 (E.E.O.C. Oct. 4, 2000)

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.