01972682
09-22-1999
Joseph M. Pizzie, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Joseph M. Pizzie, )
Appellant, )
)
v. )
) Appeal No. 01972682
Rodney E. Slater, ) Agency No. 5-96-101
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of sex (male) in violation of Title VII of the Civil Rights Act
of 1964 (�Title VII�), as amended, 42 U.S.C. � 2000e et seq. Appellant
alleges he was discriminated against when: (1) he was subjected to a
sexually hostile environment by a female co-worker (�CW�) during the
period between June 1995 to April 1996; and (2) he was reprimanded for
inappropriate behavior while CW was not reprimanded for similar behavior.
This appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as an Air Traffic Controller Specialist, at the agency's Denver Automated
Flight Service Station. Appellant alleged that during the relevant
period, CW did the following:
(1) commented that his mother must not have held him much because the
back of his head was flat;
(2) commented that he looked like a referee when he wore a stripped shirt;
(3) flipped up his hair if it grew longer than normal;
(4) left drawings of horses in his mailbox; and
(5) discussed her sex life, menstrual period, and marital problems in
his presence.
On April 3, 1996, appellant received an oral reprimand for allegedly not
exercising courtesy and tact in dealing with CW during a relief briefing.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on June 10, 1996.
Appellant charged that CW's actions were sexually harassing and that he
was subjected to disparate treatment based on sex when management issued
him an oral reprimand while allowing CW to go unpunished. 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. Appellant
requested that the agency issue a final decision. On January 6, 1997,
the agency issued its FAD finding no discrimination.
The FAD concluded that appellant failed to establish a prima facie
case of sex-based harassment because the incidents alleged by appellant
were not severe, pervasive, or persistent enough, either individually
or collectively, to rise to the level of a hostile environment.<1>
As for appellant's claim of disparate treatment gender discrimination
regarding his oral reprimand, the FAD concluded that appellant failed
to establish a prima facie case because he and CW were not similarly
situated in that they had different supervisors and allegedly committed
different acts of misconduct. Further, the FAD held that the agency
articulated legitimate, nondiscriminatory reasons for its actions and
appellant did not establish that more likely than not, these reasons
were a pretext to mask unlawful discrimination.
On appeal, appellant makes no new contentions and the agency requests
that we affirm the FAD.
ANALYSIS
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14,
1998)(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
In determining that a working environment is hostile, factors to
consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. 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, 6. The Supreme Court stated: �Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.� Harris, 510 U.S. at 22 (1993).
Sexual Harassment
To establish a case of hostile environment sexual harassment, appellant
must show that he was subjected to sexual harassment in the form of
unwelcome sexual advances, requests for sexual favors, or other verbal
or physical conduct of a sexual nature which had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. 29 C.F.R. �1604.11;
Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982).
Sex-Based Harassment
Sex-based harassment is conduct directed at an employee because of gender,
yet not of a sexual or prurient nature. The harassing conduct whether
it be aggression, intimidation, or hostility of a physical or verbal
nature violates Title VII where it is sufficiently severe or pervasive
and is gender-based, occurring merely because of an employee's gender.
See EEOC Policy Guidance on Current Issues of Sexual Harassment N-915-050,
No. 137, at 107 (March 19, 1990) (discussing sex-based harassment); Owens
v. Department of Transportation, EEOC Request No. 05940824 (Sept. 5,
1996); Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988).
After a careful review of the record, the Commission finds that appellant
failed to present sufficient credible evidence establishing that he
was subjected to sexual or sex-based harassment. In reviewing the
allegations which led to appellant's harassment complaint, we find no
persuasive evidence that the incidents were sufficient to constitute a
hostile environment. As for sexual harassment, the incidents alleged
simply do not appear to be severe or pervasive, and for the most part,
are not sexual in nature. While CW may have discussed her marital sex
life, we find that these conversations, made within a mixed group of
males and females, were not of the nature that a reasonable person would
find them offensive or hostile. With regard to sex-based harassment,
we find that the alleged comments are again not severe or pervasive,
and do not single appellant out because of his gender.
Disparate Treatment
Appellant can establish a prima facie case of gender discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at
802). In general, to establish a prima facie case of discrimination
based on a Title VII disparate treatment claim, appellant must show that
he belongs to a statutorily protected class and that he was accorded
treatment different from that accorded persons otherwise similarly
situated who are not members of the class. Comer v. Federal Deposit
Insurance Corporation, Request No. 05940649 (May 31, 1996)(citing Potter
v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975)).
In order for two or more employees to be considered similarly situated,
all relevant aspects of the employees, work situation must be identical
or nearly identical. Godby v. Department of the Treasury, EEOC Request
No. 05960220 (May 7, 1998)(citing Smith v. Monsanto Chemical Co., 770
F.2d 719, 723 (8th Cir. 1985).
As for appellant's disparate treatment claim, we find that appellant
failed to establish a prima facie case of gender discrimination because he
was not similarly situated to CW. Appellant contends that while he was
reprimanded for his conduct toward CW, CW was not similarly discipline
for her inappropriate conduct. Appellant was reprimanded for interfering
with CW's work performance when he was allegedly curt and rude to CW
as she was attempting to provide him with a position briefing as he was
replacing her during a shift change. We find that appellant's discipline
was directly related to work performance, which is unalike CW's alleged
conduct which has not been alleged to have directly interfered with
appellant's work performance. In addition, upon complete examination
of the record, we find that the evidence taken as a whole does not lead
to an inference of discrimination based on gender.
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.
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 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 We note that appellant also alleged sexual harassment which is different
from sex-based harassment and that the agency failed to analyze the
sexual harassment claim.