01973350
09-02-1999
Ellen C. Coney, Appellant, v. F.Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ellen C. Coney v. Department of the Air Force
01973350
September 2, 1999
Ellen C. Coney, ) Appeal No. 01973350
Appellant, ) Agency No. AR900970105
v. ) Hearing No. 380-96-8053X
F.Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
DECISION
Appellant 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. In her complaint, appellant alleged that she
was discriminated against when she was subjected to a hostile environment
based on her sex due to verbal abuse and intimidation from September
16, 1994, to October 1995, and when her supervisors created a sexually
harassing hostile environment. The appeal is accepted pursuant to the
provisions of EEOC Order No. 960.001. For the reasons set forth below,
the FAD is AFFIRMED.
The record reflects that in the Summer of 1992, a new Staff Judge Advocate
(the "SJA") became appellant's second level supervisor. At the time,
appellant was employed as a Loss and Damage Claims Examiner, GS-7.
On September 16, 1994, appellant arrived at a meeting and the SJA motioned
to her, indicating that she should sit in the only vacant chair, which was
next to him in the front of the room. Appellant left the room, but then
returned. Appellant maintained that, after the meeting, the SJA leaned
toward her while telling a story and glared at her. Appellant told the
SJA that she had to leave and did so. Appellant's supervisor followed
appellant to her office and admonished her for defying authority.
Appellant and the SJA did not speak again until September 20, 1994,
when she was called into a meeting and given a Letter of Counseling
which stated that she had conducted herself in an unprofessional and
disrespectful manner by remaining in the hallway during the prior
meeting and walking away when the SJA motioned to her to take a seat.
Appellant explained that she sits in the back of rooms because crowds
make her uncomfortable and cause her breathing difficulties. Appellant
maintains that during this meeting, the SJA leaned close to her and that
his eyes were threatening and scary. Appellant's supervisor later told
her that the Letter of Counseling would not be placed in her Official
Personnel Folder unless there was any more trouble.
In December 1994, when two female employees were late for training, the
SJA yelled, pounded on the desk and gestured in an intimidating manner.
Appellant was not present, but heard the yelling. In December 1994,
appellant and the two female employees met with a union representative,
who set up a meeting with an EEO Counselor. Also in December 1994,
a female Sergeant alleged that the SJA had sexually harassed her.
On January 4, 1995, the SJA was relieved of his duties. The SJA was
eventually courtmartialed, dismissed from the service and imprisoned
for six months after a Court of Military Justice convicted him of one
charge of conduct unbecoming an officer, one charge of fraternization,
and one other charge.
Appellant contacted the EEO Counselor on January 6, 1995. In her EEO
complaint, appellant alleged that the actions of the SJA subjected her
to a hostile work environment based on her sex. Appellant maintained
that the SJA treated female employees with more hostility than he treated
male employees. Appellant's EEO complaint was accepted and investigated.
Thereafter, appellant requested a hearing before an EEOC Administrative
Judge ("AJ").
In preparation for the hearing, appellant for the first time alleged
that the SJA and her supervisor made suggestive comments and sexual
jokes with male employees during working hours and that these actions
constituted sexual harassment. In particular, appellant contended that
the SJA used the term "two strokes," which referred to testimony during
a court case involving male masturbation.
Addressing appellant's claim of a hostile work environment based on sex,
the AJ found that testimony established that the SJA was "a mean-tempered,
intimidating man who was abusive by nature, ... maintained a terrible
working environment ... frequently yelled at employees, ... berating a
female and male employee in front of the entire staff, yelling at a male
captain, and pounding his fist on the table and shouting" when the two
female employees were late for training in December 1994. Nonetheless,
after a review of the testimony, the AJ concluded that the SJA was more
hostile to women in his employ. However, the AJ found that the SJA's
conduct toward appellant was less severe than his conduct toward others
(male or female), noting that while appellant maintained that he glared
at her and looked at her with "big menacing eyes," the SJA never actually
lost his temper with her.
With respect to appellant's claim of sexual harassment based on a
hostile environment caused by the SJA and her supervisor, the AJ noted
that appellant had not made this claim prior to the hearing. Further,
while appellant testified that her supervisor engaged in sexual bantering
and joking with male employees at least once a day, the AJ found that
appellant's proffered evidence in support of her contentions was "notably
devoid of any specific remarks of a sexual nature" made by her supervisor.
In addition, the AJ found that appellant's testimony was contradictory, in
that while she asserted that her supervisor made sexual jokes since 1992,
she also testified that he did not become a "dirty cesspool person" until
their friendship deteriorated in March 1993. However, the AJ found the
supervisor's testimony that he could not recall making any sexual jokes
in the workplace to be unworthy of credence. The AJ found credible the
testimony of other witnesses, who recalled hearing sexually "bantering"
remarks on a infrequent basis, no more than once a month.
In any event, the AJ found that the agency had taken immediate and
appropriate corrective action as soon as it was put on notice of the
SJA's behavior. The AJ noted that even before the agency had knowledge
of appellant's allegations, it had removed the SJA. Further, appellant
admitted never discussing her supervisor's language with management,
although she contended that she had told the EEO Counselor, "who refused
to listen." However, during the counseling phase, appellant was asked
by the Counselor to set forth information with respect to her charge of
harassment by "the [SJA], his deputy and the [staff] of the legal office."
Appellant's response did not include any contention that her supervisor
made offensive comments or sexual jokes. Appellant also asserted that,
during March 1995, she had told a General that her supervisor should
be removed. However, the AJ found that appellant did not present her
allegations regarding her supervisor "until [she] supplied documents
for the hearing, long after [her supervisor] had retired."
Accordingly, the AJ issued a recommended decision ("RD") finding no
discrimination. In its FAD, the agency stated that it was "in essential
agreement with" the RD. The FAD reviewed the record and concluded that
the SJA was equally hostile and abusive in his behavior toward male and
female personnel and, thus, his actions did not constitute a hostile
environment based on sex. (The agency further noted that appellant had
previously alleged that she believed that the SJA treated her in a hostile
manner because of her civilian status.) Regarding appellant's claim of a
sexually harassing hostile environment, the agency noted that appellant
was unable to articulate the specific content of any sexual comments
other than the "two stroke" comment. The agency was not persuaded that
appellant established that such comments were severe or pervasive enough
to rise to the level of hostile environment sexual harassment. The agency
further found that appellant failed to establish that this comment, or
other unspecified comments, were unwelcome, inasmuch as she failed to
voice any objection to such remarks prior to the hearing stage, by which
time both the SJA and her supervisor had left its employ. In any event,
the agency further agreed with the AJ that, assuming that a sexually
harassing hostile environment existed, the agency had taken immediate
and appropriate corrective action as soon as it was put on notice.
On appeal, appellant makes a number of arguments including that: numerous
persons lied during the hearing; the hearing transcript is inaccurate;
she has been subjected to on-going reprisal since filing her instant
complaint; she should not have been expected to remember specific words
or actions which were said or taken several years ago; and pending
imprisonment, the SJA was located across the lobby but approximately 50
feet away from appellant's workplace. The appeal includes a number of
attachments, including copies of the agency's policies regarding sexual
harassment, regulations, position descriptions and other documents.
In its comments on the appeal, the agency asserts that none of the
documents attached to the appeal are relevant and that the statement on
appeal "is nothing more than a long argument with ... every factual and
credibility finding made by the [AJ]" and statements of personal hurt
regarding later, innocuous actions.
As a preliminary matter, appellant is advised that if she wishes to
pursue, through the EEO process, the additional reprisal allegations she
raised for the first time on appeal, she shall initiate contact with an
EEO counselor within fifteen (15) days after receipt of this decision.
The Commission advises the agency that if appellant seeks EEO counseling
regarding the additional reprisal allegations within fifteen days of her
receipt of this decision, the date appellant filed the appeal statement in
which she raised these additional reprisal allegations, shall be deemed to
be the date of the initial EEO contact, unless she previously contacted a
counselor regarding these matters, in which case the earlier date would
serve as the EEO counselor contact date. Cf. Qatsha v. Department of
the Navy, EEOC Request No. 05970201 (January 16, 1998).
However, after a careful review of the record on appeal, the Commission
finds that the RD adequately set forth the relevant facts and analyzed
the appropriate regulations, policies and laws. On appeal, appellant
asserts that certain witnesses lied and the AJ erred in not crediting
her testimony that she complained about her supervisor during his tenure
with the agency. However, in general, the Commission will not disturb the
credibility determinations of an AJ when, as here, such determinations are
based on the AJ's observations of the demeanor of the witnesses. Esquer
v. United States Postal Service, EEOC Request No. 05960096 (September 6,
1996); Willis v. Department of the Treasury, EEOC Request No. 05900589
(July 26, 1990). Further, the AJ found that, even if it was assumed
that appellant was subjected to a hostile environment based on sex,
or subjected to a sexually hostile environment, the agency established
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency by not voicing her
complaints prior to the SJA's removal and that the agency exercised
reasonable care to prevent and correct promptly the SJA's harassment
by taking action to remove the SJA immediately after another employee
voiced her complaint. See Burlington Industries, Inc. v. Ellerth, 118
S.Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S.Ct. 2275
(1998). The Commission discerns no basis to disturb the AJ's findings
and, it is, therefore, it is the decision of the Commission to AFFIRM
the FAD.
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 2, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat