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.