Jacqueline Marucci, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 2000
01982644 (E.E.O.C. Oct. 27, 2000)

01982644

10-27-2000

Jacqueline Marucci, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Jacqueline Marucci v. Department of the Army

01982644

October 27, 2000

.

Jacqueline Marucci,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01982644

Agency Nos. ALF09511F02060; ALAHF09604G0060; ALAHF09605G1030

Hearing Nos. 170-96-8291X; 170-97-8105X; 170-97-8106X

DECISION

Complainant timely initiated an appeal from the final agency decision

(FAD) concerning her three consolidated equal employment opportunity (EEO)

complaints of unlawful employment discrimination in violation of Title VII

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

et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

In her first complaint, complainant alleges she was discriminated

against based on sex (female) when she was subjected to hostile work

environment sexual harassment from April 20, 1995 through May 27, 1995,

when co-workers made verbal comments about her and her relationships

with other co-workers. In her second complaint, complainant alleges

she was discriminated against based on race (White), sex (female), and

in reprisal for prior EEO activity when she was subjected to harassment

by a co-worker on January 18 and 23, 1996, and she was interviewed by a

nurse in the agency's Occupational Health Dispensary on February 2, 1996.

In her third complaint, complainant alleges she was subjected to reprisal

and discriminated against based on her race, sex, and national origin

when the agency failed to take action to deter the circulation of rumors

regarding complainant.

For the following reasons, the Commission AFFIRMS the FAD.

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

Provisioning Specialist assigned to the Space/Control Branch of the

Satellite and Data Communications Division, Communications-Electronics

Command (CECOM), at the agency's Monmouth, New Jersey facility, and was

then transferred to the "IMMC-North Division" of CECOM. Complainant filed

formal EEO complaints with the agency on October 12, 1995, March 4, 1996,

and April 15, 1996, alleging that the agency had discriminated against her

as referenced above. At the conclusion of the investigations, complainant

received copies of the investigative reports on each of the complaints,

and requested a hearing before an EEOC Administrative Judge (AJ).

The agency filed a motion for summary judgment. At the outset of the

hearing, the AJ granted partial summary judgment in favor of the agency

on complainant's claims of race and national origin discrimination,

as well as complainant's claim of retaliation when interviewed by an

agency nurse in February, 1996. The hearing proceeded on the remaining

sexual harassment and retaliation claims. The AJ issued a decision

finding that the consolidated complaints failed to state a claim of

sexual harassment and should be dismissed because complainant contended

that she was harassed due to her perceived sexual orientation, not based

on her sex, and therefore her claim was not actionable under Title VII.

In the alternative, the AJ found that complainant failed to establish a

prima facie case of sexual harassment because the alleged harassment was

not severe or pervasive. Further, the AJ found that complainant failed

to state a prima facie case of retaliation. The FAD summarily adopted the

AJ's findings and conclusions, finding no discrimination or retaliation.

On appeal, complainant contends that (1) the AJ used the wrong legal

standard in determining that harassment based on perceived sexual

orientation is not actionable under Title VII; (2) the evidence supported

a finding of hostile work environment harassment based on sex; (3) the

harassment at issue began two years before the first incident cited in

the formal complaint, and was known to management during that time;

(4) the agency failed to take prompt remedial action to address the

harassment at issue; and (5) the agency retaliated against complainant

by failing to remove her from the hostile work environment and by its

manner of handling a May 3, 1995 meeting allegedly intended to address

the harassment. In a supplemental letter brief, complainant further

contends that the United States Supreme Court's decisions in Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca

Raton, 524 U.S. 775 (1998), support complainant's claim. We find each

of these arguments to be without merit.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as �such relevant

evidence as a reasonable mind might accept as adequate to support a

conclusion.� Universal Camera Corp. v. National Labor Relations Board,

340 U.S. 474, 477 (1951) (citation omitted). A finding regarding

whether or not discriminatory intent existed is a factual finding.

See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). With respect

to those claims on which the AJ issued findings and conclusions without

a hearing, all factual findings are reviewed de novo. In addition,

all legal conclusions by an AJ are subject to de novo review by the

Commission, whether or not a hearing was held.

To establish a prima facie case of hostile environment harassment, a

complainant must show that: (1) s/he belongs to a statutorily protected

class; (2) s/he was subjected to harassment in the form of unwelcome

verbal or physical conduct involving the protected class; (3) the

harassment complained of was based on the statutorily protected class,

e.g., was motivated by complainant's sex; and (4) the harassment affected

a term or condition of employment and/or had the purpose or effect of

unreasonably interfering with the work environment and/or creating a

hostile work environment. Humphrey v. United States Postal Service,

Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

Complainant incorrectly contends that discrimination based on sexual

orientation is actionable under Title VII. The Commission has repeatedly

held that discrimination based on sexual orientation does not constitute

discrimination based on sex actionable under Title VII. See, e.g.,

Morrison v. Department of the Navy, EEOC Request No. 05930964 (June 16,

1994) (claim that harasser told co-workers that complainant was gay and

had been seen kissing another man was based on complainant's perceived

sexual orientation, not his sex, and therefore was not actionable

as sex discrimination under Title VII). Complainant also notes, in

support of her proposed construction of Title VII, that a New Jersey

state civil rights statute contains a clause prohibiting employment

discrimination based on sexual orientation. However, Title VII operates

wholly independent of any state or local employment discrimination laws

which may provide different coverage.<2>

Complainant's reliance on Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75 (1998), is misplaced. Complainant contends that because

Oncale held that same-sex sexual harassment is actionable as sex

discrimination under Title VII, by implication discrimination based on

sexual orientation also constitutes sex discrimination under Title VII.

To the contrary, in holding that same-sex sexual harassment claims

are actionable under Title VII, the Supreme Court in Oncale made clear

that in all sexual or sex-based harassment cases, whether same-sex or

opposite sex, the statutory requirement that the conduct at issue be

"because of" complainant's sex is not automatically satisfied "merely

because the words used have sexual content or sexual connotations.

'The critical issue . . . is whether members of one sex are exposed

to disadvantageous terms or conditions of employment to which members

of the other sex are not exposed.'" Oncale, 523 U.S. at 80 (quoting

Harris v. Forklift Systems, Inc., 510 U.S. 1725 (1993) (Ginsburg, J.,

concurring)). The court explained that while "harassing conduct need not

be motivated by sexual desire to support an inference of discrimination

on the basis of sex," a complainant "must always prove that the conduct

at issue was not merely tinged with offensive sexual connotations,

but actually constituted discrimination because of sex." Id.

Thus, same-sex or opposite-sex harassment is actionable as sex

discrimination under Title VII when it is motivated by the complainant's

sex, whether the harassment at issue is sexual or sex-based.<3>

However, where harassment was motivated by complainant's perceived sexual

orientation, rather than his or her sex, the harassment is not actionable.

In the instant case, inasmuch as complainant concedes that the harassment

at issue was, in her view, motivated by a false perception regarding her

sexual orientation, complainant has failed to satisfy the prima facie case

requirement that the harassment be "because of" her sex. Moreover, even

if complainant had not conceded this, the AJ's factual finding that the

conduct at issue was based on complainant's perceived sexual orientation,

not her sex, is supported by substantial evidence. In reaching this

conclusion, we note that although complainant's new counsel contends on

appeal that complainant was initially harassed by co-workers who started

rumors that she was having an affair with her supervisor and that she was

promiscuous, prior to initiating rumors regarding complainant's sexual

orientation, this is contrary to the evidence presented by complainant

at the hearing, which addressed solely harassment allegedly visited upon

complainant because of her perceived sexual orientation. Accordingly,

we affirm the AJ's conclusion that complainant failed to establish a

prima facie case of either sexual or sex-based harassment.

Moreover, we concur with the AJ's conclusion, in the alternative, that

complainant failed to demonstrate that the alleged harassment was severe

or pervasive, as required to establish a prima facie case of harassment.

As noted above, establishment of a prima facie case requires that the

alleged harassment be sufficiently severe or pervasive to alter the

conditions of the victim's employment by creating a hostile abusive

working environment. Relevant factors include the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with an

employee's work performance. See Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994); Enforcement

Guidance on Harris v. Forklift Systems, Inc. at 3, 6. "Conduct that

is not severe or pervasive enough to create an objectively hostile work

environment - an environment that a reasonable person would find hostile

or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22

(1993). Based on a thorough review of the record, we do not find this

standard satisfied in the instant case.

With respect to complainant's retaliation claim, we note that the AJ

used the incorrect standard in analyzing the claim, see Findings and

Conclusions at 18, by requiring that the alleged retaliation affect a

term, condition, or privilege of employment in order to be actionable.

Unlike the anti-discrimination provisions of Title VII, the statutory

retaliation clauses are interpreted by the Commission "to prohibit any

adverse treatment that is based on a retaliatory motive and is reasonably

likely to deter the charging party or others from engaging in protected

activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13 -

8-14 (May 20, 1998). We also note that the AJ erred in reasoning that

complainant could only establish a prima facie case of retaliation or

of race or national origin discrimination if she identified comparator

employees outside her protected class who were treated more favorably

than she was treated. While comparative evidence is usually used to

establish disparate treatment, it is not the only means available;

complainant need only set forth some evidence of acts from which,

if otherwise unexplained, an inference of discrimination can be drawn.

Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

Nevertheless, applying the correct standards, we concur with the

AJ's ultimate conclusion that complainant failed to establish a prima

facie case of race or national origin discrimination or of reprisal.

Specifically, the record is devoid of any evidence which would permit

an inference of disparate treatment based on race, national origin, or

reprisal. Specifically with respect to retaliation, complainant failed to

establish that the agency nurse and doctor responsible for her allegedly

improper interview had any knowledge of her prior EEO activity. Further,

complainant's evidence is insufficient, either comparative or otherwise,

to permit an inference of retaliation with respect to the manner in which

management responded to the treatment of complainant by her co-workers.

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 AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the office of federal operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

October 27, 2000

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__________________

Date

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.

2We do note, however, that Executive Order 13987 (May 28, 1998)

requires federal agencies to establish an internal redress procedure for

complaints of sexual orientation discrimination by civilian employees.

Such complaints are also investigated by the Office of Special Counsel.

See 5 U.S.C. � 1214, et seq.

3 For example, the "because of" sex requirement for a prima facie

case of harassment may be satisfied in some cases where complainant

was harassed for failure to conform to gender-based stereotypes,

i.e., harassment visited upon a complainant by members of the same or

opposite sex because, in the case of a female, she was perceived not to

meet stereotyped expectations of femininity, or in the case of a male,

he was perceived not to meet stereotyped expectations of masculinity.

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st

Cir. 1999).