01974306
04-19-2000
Nancy Pils, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Nancy Pils v. Department of Defense
01974306
April 19, 2000
Nancy Pils, )
Complainant, )
) Appeal No. 01974306
v. ) Agency No. PE-FY95-03
) PE-FY95-07
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning her complaints 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.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
The issues presented herein are whether complainant has established
that she was discriminated against on the above-referenced bases when
she was assigned curriculum responsibilities and administrative duties
that were less desirable than those assigned to her male counterparts and
subsequently terminated from her position; and whether she has proven that
she was subjected to sexual harassment and a hostile working environment
when she was touched in a sexual manner and was the target of sexually
suggestive comments.
BACKGROUND
Complainant, formerly employed by the agency as a Teacher at the Cummings
Elementary School located in Misawa, Japan, filed two formal complaints
on August 7, 1995, in which she raised what has been identified as the
issues presented. Pursuant to EEOC regulation, the agency consolidated
the two complaints for joint processing. 29 C.F.R. � 1614.606.
The agency, after investigating complainant's claims, issued a final
decision finding no discrimination. This appeal followed.
Complainant claimed that she was subjected to sexual harassment and a
hostile working environment stemming from verbal comments and physical
conduct of a sexual nature directed at her by the school's Vice-Principal.
She asserted that he brushed his hand against her breast as he reached
across her desk to lay down a document. According to her, when the
contact occurred, she froze and told him to remove his hand in a tone
that indicated that his action was objectionable. Regarding other forms
of physical conduct, she claimed that the Vice-Principal put his arm
around her on more than one occasion; and on at least once, she removed
his arm and stepped away from him to demonstrate her objection. She also
asserted that, on a different occasion, he indicated to her that he was
attracted to older women. In a sworn affidavit, she claimed that this
was his way of letting her know that he was sexually attracted to her.
Additionally, she claimed that the Vice-Principal referred to her as
"anal retentive" and "sexually frustrated" and once told her that she
needed to "play ball [his] way or [she] would not be rehired."
The Vice-Principal stated that he did not brush against complainant's
breasts, nor was he told to remove his hand. He admitted, however, that
he did put his arm around complainant on occasion but such contact was
friendly, rather than sexual, in nature. He explained that he put his
arm around many other employees and that complainant had also put her arm
around him. He also admitted that he once mentioned to complainant that
he was attracted to older women. But, according to him, the comment was
not made in a sexually suggestive manner, nor could it have been construed
as such. He stated that the comment was made when complainant mentioned
that her husband was coming to visit, which led to a conversation about
marriage. He stated that during the conversation, complainant stated
that she was older than her husband, at which point he stated, "I like
older women, my wife is older than me." Regarding the "anal retentive"
comment, the Vice-Principal did not recall making that statement.
He did recall, however, a conversation between the two of them in which
complainant teased him about his handwriting. In response, he stated
his handwriting was the product of poor toilet training. He recalled
that at that point, complainant said something about getting uptight
quickly and joked about Sigmund Freud. He stated that at this point,
he may have said something about "anal retentiveness," but that comment,
if made, was made in the context of a jovial conversation. He remembered
that the both of them laughed and joked during the whole encounter.
He also remembered the conversation where the term "sexually frustrated"
was used. According to him, complainant mentioned to him that her
husband could not visit her and that she was a "sexually frustrated old
lady." He stated that at that point, he reflected her statement back
to her as if to agree with her contention. Regarding the "play ball
my way" comments, the Vice-Principal stated during a conversation with
complainant, she indicated her worries that she might not be rehired.
At that point, he stated to her that she may not be. According to him,
that is when complainant asked whether she had to "play ball" with him
and the Principal in order to be rehired. He indicated to her that since
the Principal and he were her supervisors, she did need to follow their
directions, or "play ball" so to speak, in order to be rehired.
Complainant also claimed that the school's Principal subjected her to
comments of a sexual nature as well. She did not claim, however, that
he touched her in a sexually inappropriate manner. The only offensive
comment attributed to the Principal was his statement to her that he
always thought of her as single. Complainant claimed that this comment
was inappropriate because it was made after she questioned him regarding
excelling at the job standards. Complainant also believed the comment was
inappropriate because the term"single" implied that she was available to
have an intimate affair with him and indicated his willingness to have
an affair with her. The Commission notes that she did not claim that
the Principal touched her in a sexually inappropriate manner. She did
claim, however, that she spoke with him about the Vice-Principal's
alleged misconduct and he refused to do anything about it.
In a sworn affidavit, the Principal remembered having a conversation with
complainant regarding the merits of living in Okinawa, Japan. According
to him, she had just returned from a trip there and the two of them were
having a casual conversation about life in the area. He recalled saying
something about the large number of DOD teachers in Okinawa and how that
made it easier to make friends. He did not, however, recall making a
statement regarding whether or not she was single. He went on to say
that if such a statement was made, it was not his intention to offend,
embarrass, or suggest that he wanted to have an intimate relationship
with her. Regarding complainant's assertions that she spoke to him
about the Vice-Principal's alleged misconduct, the Principal stated that
nothing was ever said to him about sexual harassment.
In addition to her sexual harassment claim, complainant also contended
that, because of sex and reprisal, she was given assignments less
desirable than her male predecessor. She contended that she was
required to do the following things while her male counterpart was not:
(1) maintain a written schedule for classes and classroom activities;
(2) prepare extra written orders for classroom computers that were
already received but given to non-SWEP classrooms; (3) create new TAG
nomination forms despite the agency's use of existing approved forms;
and (4) guess as to the meaning of "play ball," discussed supra, thereby
making it difficult to ascertain what extra duties were required of her.
She also claimed that her concerns regarding housing, payroll, and other
administrative matters were not addressed in a proper or timely manner
as were those of the male teachers.
Regarding complainant's contentions concerning assignment of duties, the
Vice-Principal stated that complainant's predecessor was supervised by a
different principal, and therefore, may have been required to do things
a little bit differently. He also stated that, despite complainant's
contentions to the contrary, her predecessor was required to maintain
a classroom schedule. Regarding complainant's housing, payroll, and
other administrative problems, the Vice-Principal stated that many staff
members had the same problems. According to him, each and every members'
problems were handled the same way.
Finally, complainant asserted that her termination, effective May 19,
1995, was based on reprisal. In response, the agency contended that
complainant's termination was based on her continued disregard of
supervisors' directives, her inability to get along with others, and
her poor judgment in performing duties.
ANALYSIS AND FINDINGS
Sexual Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993).
In order to establish a prima facie case of such harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that she is a member of a statutorily protected
group; (2) that she was subjected to unwelcome sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment of which she complained is based on sex; and
(4) that the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with her
work environment and/or creating an intimidating, hostile, or offensive
work environment; and (5) that there is a basis for imputing liability
to the employer. Henson v. City of Dundee, 682 F.2d 987, 903-05
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's situation.
Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice
No. 915.002 (March 8, 1994).
In this case, we find that complainant failed to establish a prima
facie case of sexual harassment. Specifically, we find, regarding all
alleged incidents of harassment, that complainant failed to prove the
existence of the second element. Concerning the incidents of alleged
sexually inappropriate physical conduct and verbal statements, we find
the Principal's and the Vice-Principal's assertions to be credible.
As for the alleged inappropriate physical conduct, we conclude that
the "brushing against her breast" incident never occurred. We also
conclude that when the Vice-Principal put his arm around complainant,
she was not being subjected to unwelcome sexual advances or requests for
sexual favors. Our conclusions are based on the fact that complainant
never mentioned these incidents when explaining to co-workers why she
felt this way. We note that she did mention the other incidents of
alleged sexual harassment (i.e., verbal comments) when discussing the
matter with co-workers.
Regarding the alleged incidents of sexually inappropriate verbal comments,
the Commission finds that complainant has not proved that such comments
amounted to unwelcome sexual advances or requests for sexual favors.
Complainant stated that while the Principal and the Vice-Principal never
explicitly asked her to enter into a sexual relationship with them, their
remarks indicated their willingness to do so. The Commission disagrees.
Regarding the "anal retentive" comment, one witness, a female teacher,
stated that the term was used by many employees in and around the
workplace. This information, combined with other evidence observed in
the file, indicates that complainant's contention (i.e., that the verbal
comments of which she complained were sexual in nature) has no merit.
Sex and Reprisal
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). See, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 25.
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show the existence of four elements:
(1) that she engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
she was disadvantaged by an action of the agency contemporaneous with
or subsequent to such participation; and (4) that there was a causal
connection between the protected activity and the adverse employment
action. See, Hochstadt, Id., see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether the complainant has established a prima
facie case to whether s/he has demonstrated by preponderance of the
evidence that the agency's reasons for its actions merely were a pretext
for discrimination. Id.; see also United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
regarding the differences between complainant's duties as compared to that
of her male predecessor, the agency stated that such differences were
based on the fact that both individuals were supervised by different
supervisors, each with his own way of doing things. Regarding the
handling of complainant's housing, payroll, and other administrative
problems, the agency stated that all employees encountering such
problems were treated the same way. And finally, regarding complainant's
termination, the agency stated that complainant was fired because she
failed to follow her superiors' directives, did not get along well with
others, and exercised poor judgment in the performance of her duties.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant has failed to meet that burden.
To support her claim of sex and reprisal discrimination, complainant
asserted that she was expected to perform duties not required of her male
predecessor. Her male predecessor, however, worked under a different
supervisor and, therefore, was not a similarly situated employee.
For that reason, the Commission finds that, regarding her assignment
claim, she failed to demonstrate that she was discriminated against.
Complainant also asserted that, because of sex and reprisal, the agency
did not properly and timely handle her concerns regarding housing,
payroll, and other administrative matters. She did not submit, however,
evidence indicating that similarly situated employees outside of her
protected were treated differently regarding these matters. In fact,
several male teachers stated that they encountered the same administrative
problems as complainant. Agency documents confirmed that all employees'
problems were handled in the same manner.
Finally, complainant asserted that her termination was based on reprisal.
She was unable, however, to provide evidence in support of that assertion.
Several teachers stated that complainant spent a lot of time working
on personal matters and, on occasion, left her students unattended.
The agency's faculty representative spokesperson stated that complainant
did not get along with other staff members. In addition, the agency
submitted documents which indicated that, on more than one occasion,
complainant was advised of performance deficiencies.
Based on the convincing evidence provided by the agency, we find that
complainant has failed to prove that the agency's articulated reasons
constituted an effort to mask discriminatory animus.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response thereto, and arguments and
evidence not specifically addressed in this decision, we hereby AFFIRM
the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.