01973661
03-03-2000
Janice E. Mayes, Complainant, v. Togo D. West, Jr. Secretary, Department of Veteran's Affairs, Agency.
Janice E. Mayes v. Department of Veteran's Affairs
01973661
March 3, 2000
Janice E. Mayes, )
Complainant, )
) Appeal No. 01973661
v. ) Agency No. 95-0015
)
Togo D. West, Jr. )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaint of unlawful employment discrimination on the
basis of sex (female), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges she was discriminated against when her supervisor subjected
her to sexual harassment in the form of a hostile work environment.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Respiratory Therapist at the agency's VA Medical Center, Decatur,
Georgia facility. Complainant was hired as a probationary employee in
October 1993, and initially worked the day shift (7:00 a.m. until 3:30
p.m) for her four to six week orientation period. At the end of her
orientation period, complainant requested that she be assigned to the
midnight shift (12:00 a.m. until 8:00 a.m.). Complainant alleged that
at this time, her supervisor (female) began speaking to her in sexually
explicit ways. For example, complainant testified at a fact-finding
conference that the supervisor told complainant that she liked her and
that she preferred that she work on the day shift with the supervisor.
Shortly thereafter, the supervisor touched complainant's hand, asked
her out for social occasions with other female co-workers and informed
her that she was homosexual. Complainant alleged that the supervisor
hugged her, discussed "gay issues" with her and repeatedly invited her
over to visit at her house. She also alleged that during this time,
the supervisor gave her more leeway than other employees.
Complainant stated that in July 1994, the supervisor approached her,
touched a necklace she was wearing, and remarked how attractive the
necklace was. Complainant also alleged that the supervisor touched
her neck area and around her breasts. Although complainant testified
that she did not like the treatment she received from the supervisor,
she did not want to voice her concerns publicly because she believed,
as a probationary employee, that she could easily be fired. As such,
complainant did not inform the supervisor that her behavior offended her.
According to complainant, around the spring of 1995, the supervisor
realized complainant was not interested in having a relationship with her,
and thus, began treating her poorly. For example, complainant alleged
that the supervisor scrutinized her work more closely than others.
The supervisor also spoke with complainant in May 1995 about a series
of medication errors. Complainant alleged this counseling continued
through July 1995, when the supervisor spoke with complainant regarding
her failure to follow correct administrative procedures.
In July 1995, complainant attended a sexual harassment training session.
According to her testimony, it was there that she realized the treatment
she received from the supervisor constituted sexual harassment.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently filed a complaint on August 22, 1995.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
On March 14, 1997, the agency issued a final decision finding that
complainant had not proven that a violation of Title VII occurred because
the agency took prompt and effective remedial action once it became
aware of the problem. For example, once complainant's concerns were
brought to the attention of the supervisor, the supervisor apologized
for "unintentionally causing complainant to feel uncomfortable."
Additionally, the agency found that the supervisor denied making advances
towards complainant, and explained that all employees are invited out
socially when a therapist obtains his or her credentials.
The supervisor noted that complainant's probationary period ended in
October 1994. Also, she discussed complainant's performance related
problems during the spring and summer of 1995. For example, she testified
that complainant made errors in medication which necessitated counseling.
Also, complainant was issued counseling when she did not properly comply
with policy related to annual leave. The supervisor also testified
that complainant was reportedly behaving rudely to other employees.
The agency found that these actions were not formal discipline, and did
not rise to a severe or pervasive level so as to alter the conditions
of complainant's work environment.
On appeal, complainant contends that the agency failed to consider a
number of her arguments. Specifically, she contends that the testimony
of others corroborated her testimony that she was sexually harassed
by her supervisor. She alleges that her co-workers testified that
complainant was criticized in public and verbally reprimanded for minor
infractions. She alleges that other employees testified to hearing the
supervisor discuss her sexual preference in public. She claims that
the supervisor touched complainant inappropriately and told her sexually
explicit stories. She denies that the agency took prompt remedial action.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of sexual harassment, appellant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex; (4) the harassment had the purpose or
effect of unreasonably interfering with her 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).
After a careful review of the record, we find complainant failed to
establish a prima facie case of sexual harassment because she failed to
prove that she was subjected to unwelcome conduct of sexual nature.
Complainant also failed to prove that the harassment was severe
or pervasive enough to have the purpose or effect of unreasonably
interfering with complainant's work performance or creating a hostile
work environment. We note the supervisor denied complainant's allegations
that she made sexual advances towards complainant, or that she repeatedly
invited complainant over to her house. She claimed that complainant,
as well as others, were invited out for drinks when someone passed the
accreditation program. She denied spending more time with complainant
than other employees, but did admit she invited complainant over to her
house one time due to a familial problem complainant was experiencing
at the time.
Only one incident, that the supervisor admired and touched complainant's
necklace, was corroborated in the record by one of complainant's
witnesses. Although the supervisor invited complainant over to her house
at one time, we find there is insufficient evidence that this occurred
repeatedly, as complainant contends. One witness testified that he saw
the supervisor massage complainant's neck. Other than this evidence,
we do not find sufficient support for complainant's allegations that
the supervisor repeatedly touched her, invited her over her house, or
made sexually explicit statements. The bulk of the witness testimony
regarding complainant's allegations is based on rumor and gossip, not
personal observations. Also important to note is the difference in work
schedules between complainant and her supervisor. Complainant worked
the midnight to 8:00 a.m. shift, and the supervisor worked days, from
7:00 a.m. to approximately 3:00 p.m., which provided the supervisor with
only limited interaction with complainant.
Even assuming that the actions occurred as alleged, these is insufficient
evidence that such conduct was unwelcome. Complainant failed to alert
the supervisor that she found the supervisor's behavior inappropriate or
unwelcome. Indeed, complainant did not complain about the behavior until
the summer of 1995. In addition, testimony revealed that complainant and
the supervisor had a good, close relationship until the spring of 1995,
despite her allegation that the supervisor made her feel uncomfortable
throughout her employ with the agency. Although complainant testified she
was hesitant to complain due to her probationary status, the supervisor
questioned this testimony given that complainant's probationary period
ended well before she ultimately complained to management.
Although we find the evidence of record overwhelmingly supports the
notion that most, if not all of the employees experienced discontent
while working for the supervisor, we find insufficient evidence in the
record that the supervisor engaged in inappropriate sexual behavior with
complainant, or any other employee.
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 (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 (S1199)
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:
March 3, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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.