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.�