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.