Peter A. Reffetto, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01981630 (E.E.O.C. Sep. 26, 2000)

01981630

09-26-2000

Peter A. Reffetto, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Peter A. Reffetto v. Department of the Interior,

01981630

September 26, 2000

.

Peter A. Reffetto,

Complainant,

v.

Bruce Babbitt,

Secretary,

Department of the Interior,

Agency.

Appeal No.01981630

Agency No. LLM-94-073

Hearing No.340-95-3609X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final decision in the above-entitled matter.<1>

Complainant filed a complaint of discrimination in which he claimed that

the agency discriminated against him on the bases of gender and reprisal,

as follows:

On a continuous basis, beginning in July 1992, complainant had been

subjected to sexual harassment by a co-worker.

On March 31, 1994, complainant was issued a notice of warning for

performance deficiencies.

On April 7, 1994, complainant was issued an official reprimand.

On April 11, 1994, complainant was issued a letter of warning regarding

acceptable levels of competence.

The agency investigated the matter and referred it to an Administrative

Judge (AJ), who recommended a finding of no discrimination. The agency

subsequently adopted the AJ's recommendation as its final decision,

from which complainant now appeals.

Sexual Harassment

It is well-settled that harassment based on an individual's sex and prior

EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson,

477 U.S. 57 (1986). In order to establish a claim of harassment

under those bases, the complainant must show that: (1) he belongs to

the statutorily protected classes and engaged in prior EEO activity;

(2) he was subjected to unwelcome conduct related to his membership

in those classes and his prior EEO activity; (3) the harassment

complained of was based on his sex or his prior EEO activity; and (4)

the harassment had the purpose or effect of unreasonably interfering

with his work performance and/or creating an intimidating, hostile,

or offensive work environment. See Henson v. City of Dundee, 682 F.2d

897 (11th Cir. 1982). The harasser's conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,

EEOC Notice No. 915.002 (March 8, 1994). If the complainant satisfies

these four elements, then the agency is subject to vicarious liability

insofar as the harassment would have been �created by a supervisor with

immediate ... authority over the [complainant].� Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999), at 4 (citing Burlington Industries, Inc.,

v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998), and Faragher

v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)).<2>

In paragraph (4) of her decision, the AJ identified several incidents

involving interactions between complainant and a female co-worker

that occurred between July 1992 and February 1994. Briefly, the female

co-worker repeatedly told complainant that he needed a girlfriend, and in

September 1992, she asked complainant out. Complainant then told her that

he did not want to have a relationship with her, whereupon she did not

speak to him again until June 1993. In June 1993, the female co-worker

asked complainant to move in with her. She asked him in January 1994

if he is interested in a roommate. Complainant met with his supervisor

on February 1, 1994, to advise him of the problems that he was having

with the female co-worker. The supervisor told complainant that he was

overreacting. No further incidents were reported after February 12, 1994,

and by that time, the female co-worker no longer appeared to be interested

in pursuing a relationship with him. Applying the principles cited above,

we find that no reasonable person in complainant's position would find

the female co-worker's actions so objectively offensive as to alter the

conditions of his employment. The incidents in question took place over

an extended period of time, and did not involve anything overtly sexual.

There are no indications that the female co-worker persisted after

February 12, 1994, by which time complainant had talked to his supervisor

about the matter. While complainant may have been offended by what

the female co-worker said and did, he has not presented any evidence on

appeal to support his claim that her actions were severe or pervasive.

We therefore agree with the AJ that complainant has not established

that he had been subjected to sexual harassment by the female co-worker.

We now turn to his remaining claims.

Notices of Warning and Reprimand

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must initially establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to

the agency to articulate a legitimate, nondiscriminatory reason for

its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation

is pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519

(1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351

(December 14, 1995).

For the purposes of this analysis, we will assume that complainant

established a prima facie case of sex discrimination and reprisal

in connection with the March 1994 warning notice for performance

deficiencies, the April 1994 official reprimand, and the April 1994

competency warning. We find that the agency articulated legitimate and

non-discriminatory reasons for each of those memoranda. In particular,

complainant's supervisor identified specific elements of complainant's

job performance which he found to be deficient and carefully explained

why. In each memorandum, the supervisor identified such specific

information as late submissions and work products in which extensive

revisions were needed. Investigative Report, Exhibits C, D, and F.

On appeal, complainant presents no evidence that challenges the validity

of the supervisor's assessments, or which undermines or contradicts the

supervisor's explanation for issuing the memoranda. Accordingly, we

agree with the AJ that complainant has not established that he had been

discriminated against with respect to any of the notices and warnings

that he received from his supervisor in March and April 1994.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

Carlton M. Hadden, Director

Office of Federal Operations

09-26-00

Date

.1On 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 29 C.F.R. Part

1614 in deciding the present appeal. The regulations, as amended, may

also be found at the Commission's website at www.eeoc.gov.

2 When the harassment does not result in a tangible employment action,

the agency can raise an affirmative defense to liability which it

can meet by demonstrating: (a) that it exercised reasonable care to

prevent and correct promptly any harassing behavior; and (b) that

the employee unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, at 12. This defense is not available when the

harassment results in a tangible employment action (e.g., a discharge,

demotion, or reassignment) being taken against the employee. Id. at 7.