Melvin J. Burkley, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01984821 (E.E.O.C. Nov. 5, 1999)

01984821

11-05-1999

Melvin J. Burkley, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Melvin J. Burkley, )

Appellant, )

) Appeal No. 01984821

v. ) Agency No. 97-0501-SSA

)

Kenneth S. Apfel, )

Commissioner, )

Social Security )

Administration, )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning his equal employment opportunity (EEO) complaint

of unlawful discrimination based on race (Black) and sex (male) in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e, et seq. Appellant alleges he was discriminated against

when: (1) management failed to respond to his claims that he was being

subjected to sex-based and sexual harassment by a female co-worker; and,

(2) he was terminated during his probationary period, effective March

26, 1997, based on alleged misconduct toward members of the staff.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED AS CLARIFIED.

ISSUES PRESENTED

The issues on appeal are whether appellant demonstrated by a preponderance

of the evidence that: (1) he was subjected to discrimination based on

sex or race when management did not promptly or effectively respond

to his complaints about harassment;<1> and (2) he was subjected to

discrimination based on race or sex when he was terminated.

BACKGROUND

The record reveals that appellant was hired in November, 1996, as an

Office Automation Clerk at the agency's Office of Hearings and Appeals

in Orange, California. Throughout the relevant time, he remained a

probationary employee. In addition to his other duties, he was required

to provide back-up assistance to the receptionist, whose desk was located

right near his. The receptionist had been hired in 1988 as a "Schedule

A" employee, meaning that she had a recognized disability, identified

as a seizure condition. Record of Investigation (ROI) Exhibit 7 at 2.

According to appellant's first-line supervisor (S1), the receptionist

"frequently would make mistakes that I felt were due to her emotional and

mental problems and memory problems." ROI Exhibit 8 at 4. According to

appellant's second-line supervisor, the Hearing Office Manager (S2),

the receptionist's condition had various work-related consequences.

She lacked long-term retention regarding instructions, necessitating

that they be repeated or written down for her. ROI Exhibit 7 at 3. She

sometimes gave out incorrect information to claimants, thereby causing

problems with the staff, and she could be stubborn. Id. S2 stated

that management did "confront" the receptionist "when appropriate,"

but "in light of her disability we try a gentler approach so that she

will respond to our counseling." Id. at 3-4. S2 attested that the

receptionist had had at least three seizures at the office, which S2

believed to be stress-induced because they "occurred around the same

time as when she had problems with a customer, co-worker, or was tense

from having to speak to me." Id. at 4.

Appellant attested that the receptionist harassed him sexually

and non-sexually. The alleged sexual harassment included: leaving

false telephone messages on appellant's desk which said things such as

"looking for girls" and "someone called and said you needed a haircut";<2>

making comments to appellant such as "I'm looking for a man"; and giving

appellant a "come-on" look. ROI Exhibit 5. The alleged non-sexual

harassment included: telling appellant he needed to leave his desk to

speak on the telephone (because she allegedly could not hear her phone

ring if he was speaking on his phone), and making other similar comments;

attempting to block appellant's access to the computerized case tracking

system by moving her chair in the way or stating that she was using

it when in fact she was not; rearranging his desk to look for a file

without his permission, after he had already said he did not have it;

yelling at appellant when the co-worker who was supposed to relieve her

during her lunch break was late; and telling appellant to "shut up and

get away from here." ROI Exhibit 5. Appellant also states that after he

indicated to the receptionist that he was not interested in dating her,

their relationship became even more strained, and she did things such

as: not telling appellant when his clients had arrived for appointments,

as she was supposed to, thus forcing him to frequently check the lobby

to see if his clients had arrived; rudely throwing files in the middle

of his desk rather than place them in his in-basket; making hostile

comments, such as "well, I guess I'll let Mr. Professional take over

now" as she was leaving work one day; and saying "I'm not used to anyone

being here to help me" when appellant took messages and posted them on

the message board. Id.

Appellant acknowledges that he never advised management of the sexual

harassment by the receptionist, but states that he did complain between

five and ten times about the non-sexual harassment. Id. at 6; see also

Exhibit 6 at 4. S2 concedes that appellant complained to her about the

receptionist's behavior toward him, but attests that both appellant and

the receptionist complained to her about one another. The receptionist

complained to S2 that appellant was talking about her under his breath,

and moving things around on her desk while she was away on break.

ROI Exhibit 7 at 6. S2 also received reports from a first-line supervisor

about "friction" and "problems" between appellant and the receptionist.

ROI Exhibit 7 at 5-6.

In addition, another supervisor (S3) complained to S1 and S2 on several

occasions that she objected to appellant's attitude because he complained

about performing his duties. ROI Exhibit 9 at 3. S3 advised S2 that

she "was not pleased with the way [appellant] was handling himself, and

that he sometimes addressed S3 as "hey you" or pulled her clothes when

he wanted to get her attention. Id. S1 attested that she had similar

objections to appellant's attitude, and that he had blocked her passage

on one occasion, which she reported to S2. Both S1 and S3 attested

that appellant was disrespectful or resistant when they attempted to

give him work assignments or instructions. See ROI Exhibits 8 and 9.

Appellant asserts that when he complained about the receptionist to S1,

who was his own immediate supervisor, S1 told him he should speak to S2,

who was the receptionist's immediate supervisor. S1 corroborates this.

Appellant asserts that he then met with S2 and the receptionist about his

complaints, the receptionist strayed from the topic and S2 acknowledged

to appellant how difficult it was to deal with the receptionist,

telling appellant that she could not remedy the situation because "my

hands are tied." ROI Exhibit 5 at 5-6. S2 denies these statements.

Appellant also attests that S2 told him, in response to his complaints,

that she would monitor the receptionist's behavior for awhile, but also

said that when she had counseled the receptionist about problems, the

effect had only lasted for a few days, and then she would revert back

to the prior behaviors. Id. at 6.

Appellant asserts that management was "manipulated" by the receptionist,

whom he claims faked her symptoms when management was present to avoid

being held responsible for her conduct. Id. at 6. Appellant asserts

that since management concedes that the receptionist had "communication

problems" with other employees too, this demonstrates management was

unresponsive to his concerns and forced him to act as an "employee

and caretaker" of the receptionist. ROI Exhibit 6 at 1. Appellant

asserts that management's response each time he complained was that

the receptionist suffered from a disability, and they did not want to

provoke a seizure attack by confronting her. Exhibit 5 at 6.

By contrast, S2 claims that she did counsel the receptionist when

appellant complained that she was away from her work station too often

or having long phone conversations, and also when S2 overheard the

receptionist speaking rudely to someone, possibly appellant. Id. at 5-6.

S2 claims that she "believed that once [appellant] had gotten to know

[the receptionist's] limitations caused by her disability, he could

accept her and work around her work style." Id. at 5. S2 attests that

in addition to meeting with appellant and the receptionist, her responses

to appellant's complaints included offering to move him, which he declined

because he believed the receptionist should be the one to have to move.<3>

S2 also called the union president for "an outside opinion and assistance"

on the conflict between appellant and the receptionist, but was advised

they could not help unless a union member so requested.

The union representative attested that she had initially been contacted

by one of appellant's co-workers, CW1, who reported that appellant

was "causing problems for" the receptionist. ROI Exhibit 14 at 2.

When the receptionist herself subsequently contacted the union for help

with the situation, the union representative interviewed appellant,

the managers, and others. The union representative states that when

she interviewed appellant � approximately one month before appellant's

termination � appellant alleged to her that management was failing to

respond effectively to his harassment complaints because of his race.

ROI Exhibit 2 at 39 and Exhibit 14 at 5.

The union representative claims that during her interview of S2, she

asked S2 to describe appellant, whereupon S2 "hunched up her shoulders

and said that 'he was a big, Black man,' using her hands to exaggerate

his features." ROI Exhibit 14 at 4. S2 denies this, asserting that

she did not describe appellant as "big" and would have used the term

"African-American" if she had referred to appellant's race. Exhibit 7

at 8.

By letter dated March 26, 1997, S2 terminated appellant, without notice.

S2 states that the termination was based on incidences of past misbehavior

by appellant which came to her attention while appellant was out on sick

leave for the month preceding his termination. Specifically, S2 states

after learning that the receptionist had been admitted to the hospital

for what S2 assumed was a seizure,<4> she learned from a coworker, CW2,

that shortly before the receptionist's hospitalization, appellant had

leaned over to the receptionist's desk and started yelling at her, saying

something to the effect of "if you want to act stupid then I will treat

you stupid." S2 asked CW2 why she had not come forward at the time the

incident occurred, but her response was vague. The coworker did give S2

a signed statement dated March 21, 1997, regarding what she observed.

See ROI Exhibit 7 at 10 and Exhibit 2 at 28. When S2 then discussed

the incident with the receptionist, she confirmed it, but "downplayed

discussing" it, saying she did not think she would have been believed

and was relieved to have obtained her detail. The receptionist, however,

told S2 that other employees had also been mistreated by appellant, and

that he had grabbed the wrists of a co-worker, CW3. S2 then spoke to

CW3, who confirmed that appellant had grabbed her wrist on one occasion

as she was passing by, on another occasion had threatened to pull her

behind the cabinets and beat her with a whip, and had at least once

stepped into her path so she would have to walk around him. See ROI

Exhibit 7 at 11. CW3 attests that she did advise S2 of these incidents,

and provided S2 with a written statement regarding the wrist-grabbing

incident, as S2 asserts. See ROI Exhibit 18.<5> CW3 said to S2 she had

not come forward at the time because she was concerned appellant might

file an EEO complaint against her in retaliation if she came forward,

and because she was uncomfortable with confrontation. S2 states she

also recalled at this time an earlier complaint S1 had made to her about

appellant stopping a cart she was pushing and not letting her pass.

S2 also recalled the supervisory attorney having advised her she observed

appellant hiding another staff member's coat.

The record reflects that S1 also prepared a statement dated March

20, 1997, regarding other problems she allegedly had with appellant,

including his pulling on her shirt sleeve and pulling her toward him,

refusing to let go of objects he was handing to her, and saying "hey"

to get her attention rather than calling her by name. ROI Exhibit 2

at 30. She also asserts that appellant conceded he was "playing games"

with the receptionist by making her phone ring so that she would have

to return to her desk when he thought she had been away too long. Id.;

see also Exhibit 8 at 4. S1 states that she wrote the statement because

she supported terminating appellant, but the record does not reveal the

date on which S1 gave the statement to S2.

S2 states that after learning of the alleged incidents involving

appellant, she called the agency's regional office for advice, stating

that she felt uncomfortable having appellant in the office because

"his actions were aggressive, intimidating, unprofessional, and made

our staff uncomfortable." ROI Exhibit 7 at 12. S2 claims she asked

the regional staff if she could terminate appellant, and was told

that she could. Id. She prepared a termination letter, which advised

appellant that he was being terminated for failure to treat fellow staff

members in an acceptable manner. ROI Exhibit 2 at 26-27.

S2 concedes that there were "some racial tensions" in the office, but

denies that appellant's termination was motivated by his race or sex. ROI

Exhibit 7 at 13. S2 concedes that while she counseled appellant about

his interactions with the receptionist, she never counseled appellant

regarding the allegations by CW2, CW3, or S1 because she learned of them

while he was on sick leave. S2 claims she had lost confidence in him

as an employee and felt his behavior was so unacceptable that counseling

would not have been effective.<6>

Appellant denies all the allegations of misconduct. According to

appellant, not only was he not rude to the receptionist in front of CW2,

but rather on the occasion in question it was the receptionist herself

who rudely yelled at appellant. Appellant attests that S2 herself heard

over the telephone the receptionist being rude to appellant, but S2

"did not take [the receptionist's] behavior seriously and shrugged it

off," saying to appellant, "it sounds as if you just got nailed again.

ROI Exhibit 5 at 7. Appellant states that the receptionist thereafter

was at her desk, did not appear fearful of him, and left work at the usual

time, but the next day he heard that she had had a seizure at home. Id.

Appellant also asserts that coworker CW3, who alleged he grabbed her

wrists, is biased against him because he requested that her friend CW1 be

replaced as union representative. ROI Exhibit 5 at 8. Appellant attests

that CW3 passed his desk on more than one occasion and said he was a

"troublemaker." Id.

Appellant filed a formal EEO complaint with the agency on July 21, 1997,

alleging that the agency had discriminated against him as referenced

above. At the conclusion of the investigation, appellant was advised of

his right to request a hearing before an Equal Employment Opportunity

Commission (EEOC) Administrative Judge (AJ), but did not do so.

Accordingly, no hearing was held and the agency issued its FAD.

The FAD concluded that appellant failed to establish a prima facie case of

discrimination on either issue. The FAD construed appellant's first issue

as a claim of disparate treatment, analyzing whether or not management's

alleged failure to respond to appellant's harassment complaints was

based on his race or sex. The FAD concluded that appellant presented no

evidence that similarly situated individuals not in his protected classes

were treated differently under similar circumstances, since management

had counseled both the receptionist and appellant. Moreover, the FAD

credited management's assertion that it did respond to appellant's

harassment complaints by meeting with the parties multiple times, and

offering to move appellant to a different work area. With respect to

appellant's termination, the FAD found that he failed to establish a

prima facie case because he could not demonstrate that he was meeting

management's legitimate expectations in light of evidence regarding his

behavior toward co-workers.

The FAD further concluded, in the alternative, that even assuming

appellant did establish a prima facie case on either issue, he had

not met his burden of proving by a preponderance of the evidence that

management's proffered reasons for its actions were pretextual, and that

the real motive was discrimination. In particular, the FAD found that

when meetings about the conflicts between appellant and the receptionist

failed to improve the situation, she sought union intervention, offered

to relocate appellant, and after he declined, arranged to detail

the receptionist to another facility.<7> With respect to appellant's

termination, the FAD found that notwithstanding conflicting testimony

regarding whether or not appellant engaged in inappropriate behavior,

appellant had failed to prove that management's action was motivated

by his race or sex, as opposed to its belief that he had engaged in the

threatening and abusive behavior alleged.

CONTENTIONS ON APPEAL

On appeal, appellant contends that:

(1) the FAD was based only on managements' witness statements, and his

witness statements were not given due consideration;

(2) he never received a notice of proposed termination;<8>

(3) another employee, CW4, "was also a member of the same group and was

subject to the same treatment,"<9> but resigned;

(4) notwithstanding management's counseling of the receptionist to

assure her that appellant was there to assist her, the receptionist's

notes (exhibit 26) demonstrate that she continued to behave improperly

toward appellant;

(5) the receptionist's testimony is not credible because the day after

a meeting with management about her behavior toward appellant, the

receptionist "claims to have had a seizure at home, and yet, informs

the doctor that she felt like she had been poisoned and [appellant] was

the only person she felt could or would have done it" and because the

receptionist claims to have seen appellant grab the wrist of a co-worker,

CW3, but also states that she did not see it but rather heard about it

(citing exhibit 10, page 8);

(6) the security officer's statement (exhibit 19) asserts appellant was

standing 3-4 feet from the receptionist on the occasion which precipitated

his termination, whereas the witness credited by management, CW2, states

that appellant was leaning over the receptionist's desk; and

(8) S1's statements are false, and motivated by appellant not having

reciprocated the romantic feelings of S1's sister, who is an employee

in the same agency office.<10>

The agency stands on the record and requests that the Commission affirm

its FAD.

ANALYSIS AND FINDINGS

After a careful review of the record, applying the standards set forth

in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), we agree

with the agency's conclusion that appellant failed to demonstrate sex

or race discrimination for which the agency can be held liable.

Disparate Treatment in Response to Harassment Complaints

Appellant has not raised independent claims of sex-based or sexual

harassment, but rather raises disparate treatment based on race and sex

with respect to management's alleged failure to address his harassment

complaints.<11>

In order to establish a prima facie case of disparate treatment,

appellant must establish that (1) he is a member of a protected class;

(2) he was subjected to adverse treatment; and (3) a similarly situated

employee outside his protected class was treated more favorably, or other

comparable evidence exists which, if otherwise unexplained, permits

an inference of discrimination. Applying this standard, appellant

has failed to establish a prima facie case of adverse treatment,

because he has not demonstrated that his harassment complaints were

legally sufficient to require management to respond. The Commission's

Regulations provide that an employer is responsible for acts of harassment

in the workplace by co-workers where the employer (or its agents or

supervisory employees) knew or should have known of the conduct, unless

it can show that it took immediate and appropriate corrective action. 29

C.F.R. �1604.11(d). See also Hall v. Gus Construction Co., 842 F.2d

1010, 1013 (8th Cir. 1988); Taylor v. Department of the Air Force,

EEOC Request No. 05920194 (July 8, 1992). Thus, the employer's duty to

take prompt remedial action in cases of co-worker harassment does not

attach until the employer is on notice of the alleged harassment. Cf.

Fiandaca v. Department of the Navy, EEOC Request No. 05960069 (January

24, 1997). Appellant concedes that he did not complain to management

about the alleged sexual harassment, see ROI Exhibit 6 at 4, and he does

not contend that management was otherwise on notice of it.<12> Moreover,

while management does not dispute that appellant complained repeatedly

about the receptionist's non-sexual behavior toward him (the alleged

sex-based harassment), appellant appears to have complained about the

incidents themselves without advising management that he believed they

occurred because of his sex. Appellant does not attest that management

knew or should have known that he believed the receptionist's non-sexual

harassment was because of his sex.<13> While the evidence establishes

that appellant did speak with his union representative, approximately one

month before his termination, regarding perceived race discrimination by

management in its handling of his complaints, see exhibit 2 at 39, this

did not put management on notice of any alleged illegal motive for the

receptionist's alleged harassment itself, which appellant contends was

motivated by his sex, not his race. See n.1, supra. Neither appellant

nor the union representative informed management that he alleged

the mistreatment by the receptionist was believed to be motivated by

his sex. Accordingly, absent evidence that the employer was on notice

that the alleged harassment by the receptionist was sexual or sex-based,

the agency's responsibility to take prompt and effective action to stop

the harassment did not attach. Cf. Fiandaca v. Department of the Navy,

EEOC Request No. 05960069 (January 24, 1997).<14>

Further, appellant has not identified any similarly-situated comparator

of a different race or sex who was treated more favorably with respect

to harassment complaints of any sort. In order to do so, appellant

would have to identify an employee who had complained to management about

similar conduct by a co-worker and received a more favorable response from

management. To the extent appellant may contend that the receptionist

is his comparator because they both complained about harassment by one

another, S2 contends she counseled both appellant and the receptionist,

and appellant contends that S2 effectively counseled neither of them.

See ROI Exhibit 5 at 8. Accordingly, appellant cannot establish that he

was treated less favorably than the receptionist prior to his termination,

which is addressed separately below.

Termination

Appellant contends that he was subjected to disparate treatment on

the basis of sex and race because he was terminated. Appellant cannot

establish a prima facie case of disparate treatment because, although

termination constitutes an adverse employment action, appellant cannot

establish that a similarly situated employee of a different race or sex

was treated more favorably, or that there is other evidence sufficient to

permit an inference of discrimination. In order for comparative employees

to be considered similarly situated, all relevant aspects of appellant's

situation must be nearly identical to those of comparative employees.

See Tolar v. United States Postal Service, EEOC Appeal No. 01965083

(December 16, 1998) (citing O'Neil v. United States Postal Service,

EEOC Request No. 05910490 (July 23, 1991)).

Applying this standard, appellant has failed to identify a

comparator, or to present other evidence which supports an inference

of discrimination. The receptionist and appellant are not similarly

situated. The receptionist was a tenured employee whereas appellant was

a probationary employee, and therefore they were not similarly situated

with respect to the grounds upon which they could be terminated. As a

probationary employee, appellant was subject to termination without the

same processes afforded a tenured employee. Moreover, appellant was

not similarly situated to the receptionist because the accusations of

misconduct for which he was terminated were of a very different nature

than the complaints raised about the receptionist, who was not terminated.

Appellant's actual complaints to management about the receptionist were

about her alleged failure to perform her duties properly and allegedly

yelling at him or being disrespectful to him. See ROI Exhibit 5.

By contrast, the complaints which prompted appellant's termination

included alleged physical misconduct, such as grabbing CW3's wrists,

blocking her passage, and threatening to pull her behind a cabinet and

beat her with a whip. ROI Exhibit 7 at 11. Additionally, appellant was

accused of engaging in misconduct toward not only co-workers but also

toward superiors, such as blocking S1's passage, pulling at managers'

clothing to get their attention, saying "hey you" rather than calling them

by their name, complaining about performing duties for which he was hired,

displaying resistance and disrespect when being given work assignments

or instructions, and other inappropriate behaviors and comments which

were interpreted as challenges to his supervisors' authority and a poor

attitude. See ROI Exhibit 7 at 12; Exhibit 8 at 2-3; Exhibit 9 at 2-3.

Notwithstanding appellant's denial of these accusations, he was not

similarly situated to the receptionist in terms of the severity of the

accusations lodged against him or the number of persons complaining,

which in his case included supervisors. Thus, management's decision to

terminate appellant and not the receptionist does not raise an inference

of discrimination.

However, even assuming arguendo that appellant established a prima

facie case of discrimination, the agency articulated legitimate

non-discriminatory reasons for appellant's termination, i.e. the alleged

physical and verbal misconduct toward co-workers and supervisors.

The FAD correctly concluded that appellant failed to present evidence

that more likely than not, the agency's articulated reasons for his

termination were a pretext for race or sex discrimination.

In reaching this conclusion, we note in particular that S2's failure to

speak with appellant to obtain his version of the alleged incidents which

came to light during his sick leave, and her failure to provide him with a

notice of proposed termination, do not disprove S2's proffered reasons for

the termination. We note that S2 provided undisputed testimony that she

herself originally contacted the union to solicit assistance in resolving

the conflict between appellant and the receptionist, and that she later

received authorization from her regional office to summarily terminate

appellant based on the information which came to her attention while

he was on sick leave. ROI Exhibit 7 at 6, 12. These actions undermine

appellant's contention that S2 was motivated by his race or sex in her

handling of this matter. Moreover, even accepting appellant's assertion

that management treated the receptionist more favorably because of

her disability, requiring him to serve as her "caretaker," Exhibit 6

at 1, this does not demonstrate that S2 was motivated by appellant's

race or sex in doing so, or in terminating him.<15> To the contrary,

appellant's arguments and evidence regarding management's favoritism

toward appellant because of her disability undermines rather than supports

appellant's claim, since it indicates a motive for termination which,

even if inappropriate, was not race or sex discrimination.

With respect to appellant's contention that S2's racial bias is

evidenced by her referring to him as a "big black male" who struck

fear in the receptionist, the evidence is disputed. While the union

representative attests that S2 made this remark in response to her direct

request that S2 describe appellant, S2 denies, under oath, making the

remark. Presented with these two contradictory sworn statements, there

is insufficient evidence of record to permit the Commission to conclude

that either the union representative or S2 is the more credible witness,

thus leaving the matter in equipoise. In addition, the probative value

of the remark must be assessed in context, and we note that the union

representative herself asserts that S2 made the alleged remark in response

to the representative's direct inquiry asking her to describe appellant.

ROI Exhibit 14 at 4. Moreover, even if the evidence did establish S2

made this remark, we cannot conclude that alone, or in combination

with the failure to obtain appellant's version of events or give him

notice of proposed termination, it would be sufficient to establish race

discrimination by a preponderance of the evidence, given the written

statements regarding appellant's alleged misconduct, and pre-approval

by the regional office, on which S2 asserts she relied in making the

decision to terminate appellant. ROI Exhibit 7 at 12-13.

Accordingly, the evidence is insufficient for the Commission to conclude

that appellant has established by a preponderance of the evidence that

his termination was motivated by his race or sex.

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, the FAD is AFFIRMED AS

CLARIFIED.

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:

November 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1Appellant does not

contend that the co-worker harassment at issue

was race-based harassment. Rather, he contends

that the harassment was sexual and sex-based,

and that management failed to adequately respond

because of his race and sex.

2Appellant attests that he kept these notes until management cleaned

out his desk when he was terminated without notice. At least one

co-worker testified that appellant had shown him some of the notes,

which he recognized to be in the receptionist's handwriting, and that

both appellant and another co-worker told him that the receptionist had

made sexual advances to them. ROI Exhibit 12 at 3. The supervisor (S3)

who, together with the security guard, cleaned out appellant's desk

testified that she found no such notes. ROI Exhibit 9 at 4.

3While the record reflects that management thereafter did take steps

to detail the receptionist, there is contradictory evidence regarding

whether or not this detail was related to appellant's complaints about

her, or at the receptionist's request because of appellant's alleged

behavior toward her, or to shorten the receptionist's commute.

4S2 claims she later learned that the receptionist had had stomach

cramps, not a seizure, although another supervisor, S3, claims she was

advised by the receptionist's family that the receptionist passed out from

work-related stress. ROI Exhibit 10 at 5. At the time, the receptionist

told S2 that she believed appellant had poisoned her. ROI Exhibit 7

at 9. When the receptionist returned to work after several days of sick

leave, she was "extremely stressed and agitated" and unable to perform her

receptionist duties. ROI Exhibit 7 at 10. S2 states that at this time

the receptionist requested a transfer to another facility, and S2 began

to obtain a detail for her to the Laguna Niguel, California facility.

In the meantime, the receptionist "did not want to go anywhere near"

her assigned work area "because [appellant] also worked" there, so she

was instead assigned to shred documents in an empty office. Id.

5Only the first page of CW3's original statement is contained in the

record. ROI Exhibit 2 at 29.

6Apart from the information S2 claims she possessed as the basis for

her termination decision, the agency investigator obtained several

affidavits from co-workers who assert they witnessed the receptionist

behave rudely and/or make sexual advances toward appellant or others,

as well as affidavits from co-workers who assert they witnessed appellant

behave rudely toward the receptionist.

7Appellant was apparently terminated, however, before the receptionist's

detail commenced.

8As a probationary employee, appellant was not entitled to a notice of

proposed termination. The various regulations he cites apply to the

Senior Executive Service, or to terminations for conduct arising prior

to employment, and do not apply to appellant's position and the nature

of his termination.

9Appellant directs our attention to a witness who attested that both

appellant and CW4 told him they were subjected to sexual advances by

the receptionist. See ROI Exhibit 12 at 3.

10Appellant raises this contention for the first time on appeal, and

submitted no evidence below or on appeal to support it.

11We note, however, that even if appellant's complaint was construed

as challenging the alleged sexual and sex-based harassment itself,

appellant could not prevail on these claims because, as explained herein,

he concedes that he did not put management on notice of the alleged sexual

harassment, and he has not established that he put management on notice

that the non-sexual harassment of which he complained was sex-based.

12This standard differs from that which applies when the harassment is

committed by a supervisor as opposed to a co-worker. See Burlington

Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Farragher v. City

of Boca Raton, 118 S. Ct. 2275 (1998). Although the record indicates

that some of appellant's duties included assisting the receptionist,

and that she was assigned as his "mentor," the evidence does not support

that she was his "supervisor" as opposed to a "co-worker" for purposes

of the standards of harassment liability, since there is no evidence

that the receptionist had the authority to hire, fire, promote, demote,

or reassign appellant. EEOC Enforcement Guidance on Vicarious Employer

Liability for Sexual Harassment by Supervisors, �I (June 18, 1999)

at �III.A.1.

13While the EEO Counselor's Report states that appellant told the EEO

Counselor that he had advised S2 in a meeting with the alleged harasser

"that he did not understand how [the harasser's] disability could be used

as an excuse for [S2's] failure to act regarding his work relationship

with the harasser, both sexual and non-sexual," ROI Exhibit 2 at 5,

appellant's own affidavit states that he did not complain about the

sexual harassment, Exhibit 6 at 4, and there is no contention or evidence

that appellant's complaints about the non-sexual harassment included any

indication that he thought the receptionist's misbehavior was motivated

by his sex.

14We do note, for the agency's information, the FAD incorrectly concludes

that assuming appellant satisfied the "notice" requirement, management's

offer to transfer appellant constituted effective remedial action, this

is incorrect. The Commission has ruled that the victim of harassment

should not be required to take an involuntary transfer or reassignment,

but rather, the individual found to have committed the prohibited

harassment must bear any derogatory effects of providing the victim with

full relief. Monroe v. Department of the Navy, EEOC Request No. 05910382

(June 27, 1991). Accord Lacanienta v. United States Postal Service, EEOC

Appeal No. 01911733 (September 18, 1991). The agency should take note

that although the Commission has upheld the reassignment of a harassment

complainant, we have done so only where the complainant requested the

reassignment. Hodge v. Department of Transportation, EEOC Petition

for Enforcement No. 04910007 (January 21, 1992). Unless the transfer

of the harassment victim is voluntary, it cannot constitute effective

remedial action. Taylor v. Department of the Air Force, EEOC Request

No. 05920194 (July 8, 1992).

15We note that Section 501 of the Rehabilitation Act of 1973, to which

the employment standards of the Americans With Disabilities Act apply in

non-affirmative action employment discrimination claims, 29 U.S.C. �791(g)

(1994), is not construed to prohibit an employer from disciplining an

individual with a disability for violating a workplace conduct standard to

which non-disabled employees are also held, even if the misconduct results

from the disability, provided that the conduct standard is job-related

and consistent with business necessity. See EEOC Enforcement Guidance

on the Americans with Disabilities Act and Psychiatric Disabilities

(March 25, 1997) at question 30.