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.