James C. Withrow, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A13757 (E.E.O.C. Sep. 16, 2002)

01A13757

09-16-2002

James C. Withrow, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


James C. Withrow v. Department of Veterans Affairs

01A13757

9/16/02

.

James C. Withrow,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A13757

Agency No. 99-2417

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Health Technician at the agency's Medical Center in Bay

Pines, Florida. Complainant sought EEO counseling and subsequently filed

a formal complaint on August 27, 1999, alleging that he was discriminated

against on the basis of sex (male) when a co-worker sexually harassed him,

and management officials failed to respond to his complaint appropriately.

Specifically, complainant alleged that for one and a half years, a

female co-worker, who was a Timekeeper, would come to his work area

and shake her rear end and squeeze her arms together on her chest to

produce cleavage. Complainant also alleged that this co-worker would

walk seductively in front of everyone, grab her crotch, talk about her

boyfriends and dates, and would make statements like �I don't need a bra.

I just use band-aids� or that she was �going to get some tonight.� Every

time this co-worker engaged in such conduct, complainant alleged that

he would tell her to leave and inform her that he was happily married.

Further, complainant stated that this female co-worker was not one

bit shy and that she would engage in such conduct with other men in

the laboratory.

Complainant added that he never complained of this conduct until he was

called into a meeting on July 14, 1999, in which another male co-worker

was accused of sexually harassing the Timekeeper. It was then that

complainant counter-charged that the Timekeeper had harassed him and

the accused co-worker.<1> According to complainant he never needed to

complain to any supervisor about the Timekeeper's conduct because it

was there for everyone in his laboratory to witness. Complainant also

noted that he never would have raised any of the alleged incidents of

sexual harassment to his supervisors if the female co-worker had not

complained about the �bird flipping� incident and �made a mountain out

of a mole hill.� He also stated that he wanted his supervisors to know

that the Timekeeper was not someone �to be believed.�

At the conclusion of the investigation, complainant was informed of

his 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. In its FAD, the agency

concluded that the conduct of the alleged harasser was neither severe

nor pervasive. Consequently, the agency found that complainant failed

to establish where the conduct of his co-worker created a hostile work

environment as defined by Title VII.

On appeal, complainant refers to several excerpts from the report

of investigation to support his claim of discriminatory treatment.

Complainant also noted that he informed his immediate supervisor on

several occasions that the Timekeeper had made unwelcome sexual advances

towards him. Moreover, complainant threatened to file a civil action if

the Commission does not find on his behalf. He also asked for $250,000

in damages. The agency requests that we affirm its FAD.

In order to establish a prima facie case of sexual harassment, the

complainant must prove, by a preponderance of the evidence, the existence

of five elements: (1) that he is a member of a statutorily protected

class; (2) that he was subjected to unwelcome conduct related to his sex;

(3) that the harassment complained of was based on his sex; (4) that

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) that there is a basis for imputing

liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,

903 (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). Assuming that all of complainant's

allegations are true, the Commission finds that such conduct did not

interfere with his work environment and it did not have the effect of

creating an intimidating, hostile, or offensive work environment.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

9/16/02

__________________

Date

1 On the day of the alleged harassing action, complainant states that the

female co-worker was rubbing her forehead with her middle finger when

he asked her �why are you shooting me a bird?� and his male co-worker

interjected, �that is not a bird, that's her toy.�