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.