Janice E. Mayes, Complainant,v.Togo D. West, Jr. Secretary, Department of Veteran's Affairs, Agency.

Equal Employment Opportunity CommissionMar 3, 2000
01973661 (E.E.O.C. Mar. 3, 2000)

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.