01971608
09-10-1999
Nancy Guerrero, ) Appellant, )
Nancy Guerrero, ) Appellant, )
) Appeal No. 01971608
v. ) Agency No. BWJBF09607GO490 )
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female) and reprisal (prior
EEO activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. Appellant alleges that she was: (1)
subjected to sexual harassment based on a hostile work environment due to
comments made to her by a co-worker; and (2) subjected to a hostile work
environment on the basis of retaliatory harassment after she complained
about the alleged incidents of sexual harassment. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED AS MODIFIED.
The record reveals that during the relevant time, appellant was
employed as a GS-5 Secretary in the agency's Directorate of Security,
Plans and Operations, 80th Area Support Group, Chievres, Belgium.
Appellant alleges that during July 1995, a co-worker (W1) made sexually
suggestive remarks such as: (1) he �needed a real woman to do things his
wife would no longer do�; and (2) he stated �Nancy's Whorehouse, may I
help you� as appellant was answering the office telephone. Thereafter,
on July 24, 1995, appellant reported these incidents to her supervisor.
Management subsequently held a meeting with the parties, W1 apologized and
the sexual remarks stopped. However, appellant further alleges that after
she contacted management concerning the allegations of sexual comments by
W1, several incidents of harassment due to reprisal occurred in August
and October 1995, such as: (1) W1 pointed at appellant, accused her of
not answering phones and threatened to monitor her work; (2) while she
was on the phone, W1 stated that he was �going to start slapping people�;
(3) during an argument between appellant and W1, the supervisor (S1)
for both of them stated that their conflict had to stop and while she
should ignore W1's comments, appellant was weak as she could not forget
the past and offered to detail her to the command section; and (4) W1
came into appellant's office to work, she asked him to leave, he began
yelling at her and ultimately threw appellant's files off of her desk.
W1 denied that he made comments about needing a real woman or Nancy's
Whorehouse or that he threatened appellant or raised his voice at her.
He admitted engaging in an argument with appellant when she told him to
leave the area near her desk and complaining that she did not answer the
telephones, but stated that appellant's files were inadvertently thrown
from her desk. However, W1 denied stating that he told anyone he would
slap them around and stated that he was engaging in friendly conversation
with another employee when appellant overheard his conversation.
Believing she was a victim of discrimination, appellant filed a formal EEO
complaint with the agency on November 28, 1995, alleging that the agency
had discriminated against her as referenced above. As appellant failed
to request a hearing, the agency issued a FAD, finding no discrimination.
In the FAD, the agency articulated the standard for allegations of sexual
harassment set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993)<1>, and found that appellant failed to establish a prima facie
case of hostile work environment sexual harassment. In so finding,
the FAD noted that the stray, isolated remarks by W1 were made by a
coworker rather than a supervisor and were not severe or pervasive
enough to alter the conditions of appellant's employment or create a
hostile work environment. The FAD noted that when management learned
of appellant's concerns over the comments, it met with the parties and
the sexual remarks ceased. The FAD further found that, in any event,
management articulated legitimate, nondiscriminatory reasons for the
actions of W1, as he denied the �real woman� remark and the comment about
slapping someone was not intended as appellant perceived it. The FAD
noted that appellant received an apology when these events were brought
to the attention of management, and the record contains no evidence that
the incident with the files occurred as alleged by appellant.
The FAD also found that appellant failed to demonstrate a prima facie
case of reprisal, as although appellant was engaged in protected activity
when she complained of W1's sexually suggestive remarks, having her
files thrown on the floor is not an actionable personnel action under
Title VII. We note, however, that while the agency considered these
allegations under the standard for reprisal discrimination, appellant
alleged that after informing management of W1's initial comments, she
was subjected to a hostile work environment by W1 and S1 based on the
theory of retaliatory harassment. As a result, the FAD failed to consider
whether the comments of S1, and the alleged comments and actions of W1
following his apology, were sufficient to demonstrate a prima facie case
of retaliatory harassment. However, for the reasons discussed, infra,
the Commission finds that appellant has failed to establish a prima
facie case of retaliatory harassment.<2> On appeal, appellant alleges
many errors in the findings of the agency's investigator but raises no
legal errors in the FAD. The agency stands on the record and requests
that the Commission affirm its FAD.
After a careful review of the record, the Commission initially agrees
with the FAD's conclusion that appellant failed to establish a prima
facie case of sexual harassment due to a hostile work environment.
Hostile environment claims generally require a showing of a pattern of
offensive conduct unless the single incident is "unusually severe." See
EEOC Policy Guidance on Current Issues of Sexual Harassment at 15-16
(March 19, 1990). We find that appellant's allegations regarding
the sexually suggestive comments made to her by W1 were isolated
incidents and cannot be regarded as severe or pervasive enough to
constitute discriminatory sexual harassment. See Harris, supra; Banks
v. Department of Health & Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, after management was informed of W1's
sexually suggestive comments, it promptly took action in arranging his
apology, and appellant conceded that W1 made no further comments which
constituted sexual harassment based on a hostile work environment.
Regarding appellant's allegation of retaliatory harassment, we note that
the FAD found that appellant failed to establish reprisal discrimination
as she suffered no �adverse personnel action� under Title VII. However,
as we previously found, appellant has alleged that the actions and
comments of W1 and S1 after W1 apologized for the alleged sexual remarks
created a hostile work environment based on the theory of retaliatory
harassment. The Commission notes that an appellant may assert a Title
VII cause of action if the discriminatory conduct was so severe or
pervasive that it created a hostile work environment on the basis of
retaliation. See Harris, supra; EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6; Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In determining whether or not a hostile environment violative of Title
VII has been created, our regulations require that " ... the challenged
conduct must not only be sufficiently severe or pervasive objectively
to offend a reasonable person, but also must be subjectively perceived
as abusive by the charging party." EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 7.
The Supreme Court stated: "Conduct that is not severe or pervasive enough
to create an objectively hostile work environment - an environment
that a reasonable person would find hostile or abusive - is beyond
Title VII's purview." Harris, 510 U.S. at 22 (1993). In evaluating the
degree to which a work environment is sufficiently severe or pervasive
to constitute a hostile environment, the Commission has noted that "A
'hostile environment' claim generally requires a showing of a pattern
of offensive conduct." See EEOC Policy Guidance on Current Issues of
Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
Applying the law to appellant's allegations, we find that the comments
allegedly committed by S1 toward appellant were not sufficiently severe
or pervasive so as to constitute a hostile environment on the basis
of reprisal. In so finding, we note that S1 made only one comment as
alleged several weeks after arranging W1's apology, and the evidence does
not establish that the comment was unlawfully motivated by retaliatory
animus nor was it intended to harass, annoy, or intimidate appellant from
utilization of the EEO process. Similarly, we find that the behavior
and comments of W1 made after his apology to appellant was not severe
or pervasive enough to constitute a hostile work environment. W1 denied
directing the �slap� remark at appellant or telling her he would monitor
her work. In addition, even if he threw files from appellant's desk
as alleged, this behavior does not constitute an example of severe
retaliatory harassment under Title VII.
The Commission further has held that in order to establish a case of
harassment that creates a hostile working environment, the harassment of
which appellant complains generally must be ongoing and continuous in
order to constitute unlawful discrimination. A few isolated incidents,
without more, are usually not sufficient to show harassment. See Banks;
Veras v. Department of the Navy, EEOC Request No. 01963901 (March 7,
1997). After review of the record, we find that the alleged incidents
of harassment over a four month period, which appellant alleged created
a hostile work environment, do not demonstrate ongoing or continuous
harassment as contemplated by Title VII. Banks, supra. We thus discern
no basis to disturb the FAD's findings of no discrimination. Therefore,
after a careful review of the record, including appellants arguments on
appeal, the agency's response, and arguments and evidence not discussed
in this decision, the FAD is AFFIRMED AS MODIFIED.
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:
September 10, 1999
_______________ ___________________________
DATE Frances M. Hart Executive
Officer
Executive Secretariat
1 Incorrectly cited by the agency as 114 U.S. 367 (1993).
2 The FAD further found that the issues in the complaint are moot as
appellant moved to Florida and thus there is no reasonable expectation
that the alleged violations will recur.