Louise Tsosie, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, (Indian Health Service), Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01990221 (E.E.O.C. May. 22, 2000)

01990221

05-22-2000

Louise Tsosie, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Indian Health Service), Agency.


Louise Tsosie v. Department of Health and Human Services

01990221

May 22, 2000

Louise Tsosie, )

Complainant, )

)

v. )

) Appeal No. 01990221

Donna E. Shalala, ) Agency No. IHS06697

Secretary, )

Department of Health and Human Services, )

(Indian Health Service), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

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 she was subjected to sexual harassment

when she received a "gag" gift, a bikini bathing suit bottom, from

a supervisor. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the Commission AFFIRMS the FAD.

BACKGROUND

The record reveals that during the relevant time period, complainant was

employed as a Dental Assistant, at the agency's Chinle Indian Health

Service facility in Chinle, Arizona. Complainant alleged that prior

to a scheduled work-related trip to California, a female supervisor,

in the presence of several other female coworkers, presented her

with a decorated paper bag on which was written "Happy Trails, L.T."

While the supervisor and co-workers watched, complainant opened the bag

and withdrew its contents. It contained, as complainant described it,

"an old, beige bikini bottom, more of a thong." The onlookers, who

had not know what was inside the bag, laughed. Complainant reacted with

embarrassment, quickly leaving the room. Later in the day, two female

coworkers made joking references to the bikini.

At the end of day, complainant and several coworkers departed on the

planned California trip which lasted a week. In the course of the trip,

a male coworker accompanying complainant made a joking reference to

the bikini.

Shortly after returning from California, complainant, believing herself to

be a victim of discrimination, sought EEO counseling and, subsequently,

filed a formal complaint on July 16, 1997. The agency accepted the

complaint for investigation. At the conclusion of the investigation,

complainant requested that the agency issue a FAD, which it did.

The FAD concluded that complainant had failed to make out a case of sexual

harassment because she did not prove there to have been a "pattern of

offensive conduct." From the FAD complainant brings the instant appeal.

ANALYSIS AND FINDINGS

After a careful review of the record, based on Meritor Savings Bank

v. Vinson, 477 U.S. 57, 67 (1986) and Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993) the Commission concludes that complainant failed

to establish a prima facie case of hostile work environment harassment

based on her sex. We find that she did not prove by a preponderance of

the evidence that she had been subjected to harassment of such a nature

that "a reasonable person would find [it] hostile or abusive." Harris,

supra, at 21-22.

We note that complainant concedes that she has been subjected to no other

incidents of a similar nature. Nor is there evidence that other employees

at the facility have been subjected to sexually inappropriate behavior.

In other cases involving "gag" gifts we have held that, absent proof of a

pattern of incidents, the giving of a tasteless or sexually inappropriate

gift did not constitute hostile work environment harassment. See Lynch

v. United States Postal Service, EEOC Appeal No. 01981027 (July 16, 1999);

Oney v. Department of Health and Human Services, EEOC Appeal No. 01972879

(August 19, 1998); Thornton v. United States Postal Service, EEOC Appeal

No. 01954211 (October 21, 1996). It is our assessment that the incident

here in question was the result of poor judgment and bad taste and was

not part of a pattern of sexual harassment.

CONCLUSION

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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 22, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.