Janet R. Conner, Appellant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01973502 (E.E.O.C. Sep. 3, 1999)

01973502

09-03-1999

Janet R. Conner, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.


Janet R. Conner v. Tennessee Valley Authority

01973502

September 3, 1999

Janet R. Conner, )

Appellant, )

) Appeal No. 01973502

v. ) Agency No. 0712-96084

)

Craven H. Crowell, Jr., )

Chairman, )

Tennessee Valley Authority, )

Agency. )

)

DECISION

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

concerning her complaint of unlawful employment discrimination on the

basis of reprisal (prior EEO activity) in violation of Title VII of the

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

alleges she was retaliated against when she was harassed by the co-worker

("CW") she filed her initial sexual harassment against. This appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the agency's decision is AFFIRMED as CLARIFIED.

BACKGROUND

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

as a Contract Laborer, at the agency's Sequoyah Nuclear Plant. Appellant

alleged that between April 19, 1996 and May 15, 1996, she was subjected

to following harassment:

(1) on April 19, 1996, CW advised two men on an elevator not to touch

her because a certain individual on the elevator would tell everything;

(2) on April 19, 1996, CW, while driving in the parking lot, circled

appellant twice;

(3) on May 3, 1996, a co-worker informed appellant that CW had advised

him and another co-worker not to talk to appellant because she would

file a sexual harassment claim;

(4) on May 7, 1996, CW, while driving an agency vehicle, swerved toward

appellant who was walking to her car;

(5) On May 10, 1996, while entering the work area, CW followed so closely

behind appellant that appellant could feel CW's breath on the back of

her neck. CW also told a co-worker that "You better watch me so I don't

do anything"; and

(6) on May 15, 1996, CW slammed a bathroom door in appellant's face and

hit her foot.

Appellant informed the agency's Human Resource Officer ("HRO") of

the incidents. HRO stated that management investigated appellant's

allegations and was unable to substantiate her harassment claim.

Believing she was a victim of discrimination, appellant sought

EEO counseling and, subsequently, filed a complaint on July 9, 1996.

The agency accepted the complaint for processing, and at the conclusion of

the investigation, appellant was granted thirty days to request a hearing

before an EEOC Administrative Judge or an immediate FAD by the agency.

Appellant requested that the agency issue a FAD.

The FAD concluded that appellant failed to establish a prima facie

case of reprisal because she presented no evidence demonstrating that

she suffered any adverse employment action. The FAD further found that

while it was inappropriate for CW to have discussed appellant's prior EEO

complaint with co-workers, management took prompt action in investigating

the allegations and by holding a meeting with all concerned where it was

explained that improper conduct would not be tolerated. As a result,

the FAD found that appellant had suffered no retaliation.

Appellant makes no new contentions on appeal. The agency requests that

we affirm the FAD and for the first time contends that since appellant

was a Contract Laborer, she is not covered by the statute.<1>

ANALYSIS

Initially, while the FAD provided the traditional reprisal analysis

to appellant's complaint, we note that appellant's allegations were

of retaliatory harassment. As such, we find that the FAD applied the

incorrect legal standards. For the reasons stated below, we however

find that the FAD reached the correct conclusion of no retaliation.

In order to prevail on her claim of retaliatory harassment, appellant

must demonstrate that: 1) she engaged in protected activity; 2) she

was subjected to severe or pervasive harassing conduct; i.e., that she

has been subjected to more than a single incident or a group of isolated

incidents of harassing conduct<2>; and 3) the harassing conduct was based

on her participation in EEO activity. 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, 9.

To avoid liability for hostile environment harassment, an agency

must show that: 1) the acts/conduct complained of did not occur; 2)

the conduct complained of was not unwelcome; 3) the alleged harassment

was not sufficiently severe or pervasive to alter the conditions of

the victim's employment and create an abusive working environment; 4)

immediate and appropriate corrective action was taken as soon as the

employer was put on notice; and/or 5) there is no basis for imputing

liability to the employer under agency principles. See Meritor Savings

Bank v. Vinson, 477 U.S. 57 (1986).

After a careful review of the record, the Commission finds that appellant

failed to present sufficient credible evidence establishing that she

was subjected to retaliatory harassment. In reviewing the allegations

which led to appellant's complaint, we find that the incidents were not

sufficiently severe or pervasive to constitute a hostile environment.

The evidence surrounding some of appellant's allegations is conflicting.

In response to appellant's allegations, CW stated that: (1) she did not

remember making any statements regarding appellant's prior EEO activity;

(2) she circled the parking lot while helping a co-worker look for

his car; (3) she swerved the company vehicle attempting to avoid a

chug hole; and (4) she closed and locked the bathroom door because she

had been instructed to avoid confrontation with appellant. While the

FAD found that CW had in fact inappropriately discussed appellant's

prior EEO complaint, we find that these incidents are isolated and

not sufficiently severe to constitute a hostile environment. We also

find that the incidents are not reasonable likely to deter appellant

or others from engaging in protected activity. Finally, we note that

management acted promptly in response to appellant's allegations.

Management investigated the allegations and held a meeting with the

parties stressing that inappropriate conduct would not be tolerated.

CONCLUSION

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

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

not specifically addressed in this decision, we AFFIRM the FAD as

modified.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 the

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 the 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 the 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 the 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 3, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 Since the agency did not raise this contention when processing the

complaint or in its FAD, we find that to allow the agency to raise this

argument on appeal would prejudice appellant. Appellant has had no

opportunity to develop facts or otherwise respond to this contention. As

a result, we will not address this contention.

2 In addition, the Commission has stated that "[t]he statutory retaliation

clauses 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. Of course, petty slights and trivial

annoyances are not actionable, as they are not likely to deter protected

activity." EEOC Notice No. 915.003 (May 20, 1998), Compliance Guidance

on Investigating and Analyzing Retaliation Claims.