Eric C. Anderson, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01983069x (E.E.O.C. Feb. 16, 2000)

01983069x

02-16-2000

Eric C. Anderson, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Eric C. Anderson, )

Complainant, )

) Appeal No. 01983069

v. ) Agency No. AR000980155

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of religion (Jewish), sex (male), and reprisal in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.<1> For the following reasons, the Commission affirms the FAD.

ISSUE PRESENTED

The issue presented is whether complainant has shown by preponderant

evidence that he faced discriminatory harassment by his supervisor and

his co-worker on the bases of sex (male), religion (Jewish), or reprisal

(prior EEO activity).

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as Auditor at the agency's Nellis Air Force Base, Nevada facility.

Complainant alleged that he was harassed by his supervisor and co-worker

on several occasions between August 21, 1996 and October 2, 1996.

Complainant alleges that during this time period: Co-worker slapped him in

the face when he discussed the enforcement of regulations regarding toll

calls; Co-worker made comments to complainant regarding his inability

to move heavy objects; on September 6, 1996, complainant reported these

two incidents to his supervisor who decided to have complainant and

Co-worker discuss the situation and �work this out�; on September 12,

1996, his supervisor raised his arm to return a �Nazi-like� salute he

received from another individual at a conference; and on September 20,

1996, complainant overheard Co-worker discussing with others the �Good

Old Boys Network� which complainant regarded as male-bashing comments.

On September 20, 1996, complainant contacted the EEO office contending

that he was being discriminated against with respect to words and

actions of his supervisor and a co-worker. Complainant's supervisor,

upon being informed of his contact with the EEO office, called complainant

at home three times in one night, in order to discuss the allegations.

Complainant filed a formal complaint on November 4, 1996, identifying

thirteen incidents of alleged harassment. By letter dated March 20,

1997, the agency accepted all but two incidents for investigation and

an investigation was conducted on August 4, 1997.

At the conclusion of the investigation, complainant requested that

the agency issue a final agency decision. The agency issued a FAD

on February 12, 1998. The FAD concluded that complainant failed to

establish a prima facie case of harassment because he failed to prove

that the alleged events occurred or that the events rose to the level

of discriminatory harassment. Further, the FAD found that complainant

failed to establish a prima facie case of reprisal discrimination because

the alleged events occurred before he participated in EEO activity.

Therefore, the agency found no discrimination and denied relief.

On appeal, complainant contends that the agency failed to consider a

number of his arguments. The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Discriminatory Harassment

Complainant alleged that he suffered from discriminatory harassment based

on his religion and sex. It is well-settled that harassment based on

an individual's sex and religion is actionable. See Meritor Savings

Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim

of harassment under those bases, the complainant must show that: (1)

he belongs to the statutorily protected classes; (2) he was subjected

to unwelcome conduct related to his membership in those classes; (3)

the harassment complained of was based on sex and religion; (4) the

harassment had the purpose or effect of unreasonably interfering with his

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).

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).

In this case, complainant alleged a number of incidents which he felt

created a hostile working environment. He claims that his supervisor

and co-worker made offensive comments and gestures regarding his

religion and sex which made him feel uncomfortable at the workplace.

Upon review of the record, the Commission concludes that complainant

demonstrated that he is a member of the protected classes and that the

events alleged were sufficient to rise to the level of conduct which

would create a hostile work environment. In particular, we find that

physical touching by Co-worker constitutes a hostile work environment.<2>

However, the Commission finds that complainant fails to establish a

nexus between the hostile work environment and his sex and religion.

Therefore, the Commission finds that complainant failed to demonstrate

that he suffered from discriminatory harassment. Accordingly, we affirm

the FAD with regard to complainant's allegation of discrimination based

on a hostile work environment.

Per Se Violation

Complainant also alleges reprisal when his supervisor called him at

home regarding his EEO activity initiated on September 20, 1996 in

reference to this instant complaint. His supervisor was informed of

complainant's EEO contact. Upon hearing the information, the supervisor

contacted complainant three times, at least two of which concerned the

EEO complaint. Upon review of the record, the Commission finds that

the supervisor's action violated the letter and spirit of the EEOC

Regulations and evidences a per se interference with the EEO process.

The agency has a continuing duty to promote the full realization of equal

employment opportunity in its policies and practices. See 29 C.F.R. �

1614.101. This duty extends to every aspect of agency personnel policy

and practice in the employment, development, advancement, and treatment

of employees. See 64 Fed. Reg. 37,644, 37,655 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.102). Agencies shall,

among other things, insure that managers and supervisors perform in

such a manner as to insure a continuing affirmative application and

vigorous enforcement of the policy of equal employment opportunity.

See 29 C.F.R. � 1614.102(a)(5); see also Binseel v. Department of the

Army, EEOC Request No. 05970584 (October 8, 1998).

Here, the supervisor's attempts to discuss complainant's EEO contact

served to have a potentially chilling effect on the ultimate tool that

employees have to enforce equal employment opportunity, the filing of

a complaint. Based on the Commission's duty to insure the integrity of

the EEO process and the undisputed evidence of unlawful action in the

instant case, the FAD is REVERSED to find that a violation of the EEOC

regulations has occurred. The agency shall, as set forth in the order

below, take all actions necessary to insure that managers and supervisors

act in accordance with the EEOC regulations and, in particular, refrain

from acting in such as complainant's supervisor that may discourage use

of the EEO process.

CONCLUSION

After a review of the entire record, the Commission finds that the FAD is

REVERSED in part, to find that the agency engaged in a per se violation

of the EEOC regulations. In order to remedy its violation of the EEOC

Regulations, the agency shall take the steps contained in the following

Order.

ORDER

The agency is ORDERED within sixty (60) days to arrange EEO training

for complainant's supervisor to insure that he acts in accordance with

the EEOC regulations and, in particular, refrains from any action and/or

statements which restrain or interfere with the EEO process. The agency

shall take all actions necessary to insure that managers and supervisors

act in accordance with the EEOC regulations and, in particular,

refrain from any action and/or statements which restrain or interfere

with the EEO process within ninety (90) days. The agency shall also,

as outlined below, post the attached notice regarding its commitment to

equal employment opportunity. The agency is further directed to submit

a report of compliance to the Compliance Officer, as provided in the

paragraph below entitled "Implementation of the Commission's Decision."

The report shall include supporting documentation verifying that the

corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Nevis Air Force Base, Nevada

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

Feb 16, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________ _____________________________

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 29 C.F.R. � 1614.101 has occurred at this 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 Department of the Air Force, Nellis Air Force Base, Nevada, supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under law. The

Department of the Air Force, Nellis Air Force Base, Nevada, will not

act in such a manner as to discourage use of the EEO process.

The Department of the Air Force, Nellis Air Force Base, Nevada, has

undertaken all corrective action as set forth in the Commission's Order

and will not act in any manner that will discourage the use of the EEO

process. The Department of the Air Force, Nellis Air Force Base, Nevada,

will ensure that supervisors and managers will abide by the requirements

of all Federal equal employment opportunity laws.

The Department of the Air Force, Nellis Air Force Base, Nevada, 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: ________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 The Commission further notes that complainant's supervisor's decision

to have complainant, who believed that Co-worker was harassing him

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., meet with Co-worker to discuss the situation

was ill-advised.