Kathy Young, Complainant,v.Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 12, 2001
01a02368 (E.E.O.C. Jun. 12, 2001)

01a02368

06-12-2001

Kathy Young, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Kathy Young v. Department of the Navy

01A02368

06-12-01

.

Kathy Young,

Complainant,

v.

Robert B. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A02368

Agency No. 99-42237-002

Hearing No. 110-99-8326X

DECISION

On February 4, 2000, Kathy Young (hereinafter referred to as complainant)

filed a timely appeal from the January 5, 2000, final action of the

Department of the Navy (hereinafter referred to as the agency) concerning

her complaint of unlawful employment discrimination in violation of Title

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

The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted

in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,

the agency's final action is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

her on the bases of race (black) and sex when she was allegedly subjected

to a hostile work environment.

Complainant filed her formal complainant on January 21, 1999, claiming

that a co-worker (white, female) (E1) had made a racial remark about her.

Following an investigation, she requested a hearing before an EEOC

Administrative Judge (AJ). The AJ conducted a hearing and issued a

decision on November 19, 1999, finding no discrimination. The agency

agreed with the AJ, and complainant has filed the instant appeal.

Complainant worked at the agency's Kings Bay, Georgia, facility as a

Security Clerk, GS-4. She claimed that she was subjected to a hostile

work environment upon learning in November 1998 that a co-worker

(Hispanic, male) (E2) stated to another employee that E1 had made a

racial remark about her in March 1998. Upon learning of the matter,

management investigated the incident; E1 denied making the statement.

The AJ found that complainant did not show that she was subjected to a

hostile work environment because of her race or sex, in that, the single

remark in question, made to a third party eight months after the event,

did not rise to the level of discriminatory harassment or establish a

hostile work environment. He noted that neither the record nor any of

the seven witnesses who testified before him, including complainant,

described any other incidents demonstrating harassment or a hostile

work environment, except when three Marines made an ethnic joke and

were counseled.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an AJ will be upheld if supported by substantial evidence in the

record. Substantial evidence is defined as "such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). After a careful review of the record, the

Commission finds that the decision of the AJ accurately states the facts

and correctly applies the pertinent principles of law.

The harassment of an employee based on his/her race, color, sex,

national origin, age, disability, or religion is unlawful, if it is

sufficiently patterned or pervasive. Enforcement Guidance: Vicarious

Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999)

(Notice). p. 2, citing, Oncale v. Sundowner Offshore Services, Inc., 523

U.S. 75 (1998). To prevail on her claims, complainant must show that she

was subjected to harassment because of discriminatory factors, i.e., sex

and race. In assessing allegations of harassment, the Commission examines

factors such as 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. Harris v.

Forklift Systems, Inc., 510 U.S 17 (1993). Usually, unless the conduct is

pervasive and severe, a single incident, or group of isolated incidents,

will not be regarded as discriminatory harassment. Walker v. Ford Motor

Co., 684 F.2d 1355, 1358 (11th Cir. 1982); see Notice, p. 2. After a

review of the record, we agree with the AJ that the weight of evidence

shows that the event herein was not sufficiently severe or persuasive

to constitute illegal harassment.<1> Accordingly, it is the decision

of the Commission to AFFIRM the agency's final action in this matter.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

__06-12-01________________

Date

1Complainant's attempt to enlarge her claim to allege an ongoing hostile

work environment was rejected by the AJ, who found this claim contrary

to her original complaint, of questionable veracity and reliability,

and lacking support in the record, including in her own testimony.