01976332
09-24-1999
Rebecca W. Chrisman, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Army and Air Force Exchange Service) Agency.
Rebecca W. Chrisman, )
Appellant, )
) Appeal No. 01976332
v. ) Agency No. 96-109
) Hearing No. 110-97-8074X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Army and Air Force Exchange )
Service) )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination 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 discriminated against and harassed based
on her sex (female) when the agency: (1) questioned her regarding the use
of the agency's e-mail system for personal communications; and (2) made
a counseling entry on her communication card. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED as CLARIFIED.
Appellant was employed as a Department Supervisor at the agency's
Dobbins Base Exchange located at the Fort McPherson Consolidated
Exchange in Marietta, Georgia, when the above-referenced events occurred.
The agency discovered several internal e-mails sent between appellant,
her supervisor (male) and a co-worker (female) which indicated that an
improper sexual relationship may have occurred. The agency initiated an
investigation which involved questioning the three individuals regarding
the use of the e-mail for personal communications and implicitly,
the meaning of the e-mail messages. As a result of the investigation,
appellant was counseled about the improper use of e-mail. Believing she
was discriminated against and harassed as referenced above, appellant
sought EEO counseling and filed a formal EEO complaint on May 9, 1996.
At the conclusion of the investigation, appellant requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a Recommended Decision (RD) finding no discrimination.<1> The
agency's FAD adopted the AJ's RD. Appellant did not submit a statement
in support of her appeal. The agency requests that we affirm the FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), the Commission agrees with the AJ that
appellant failed to establish a prima facie case of sex discrimination.
In reaching this conclusion regarding the questioning, we note that
appellant's supervisor was the only male employee involved in the
e-mail correspondence, and he was also questioned about the meaning of
the e-mails. Moreover, there is no evidence from which we can infer
that the questioning was motivated by discriminatory animus towards
appellant's sex. To the contrary, the evidence establishes that the
agency was concerned that appellant was being sexually harassed by
her supervisor who may have been using his position to offer special
treatment in return for sexual favors or to pressure appellant to accept
his advances. In reaching this conclusion regarding the counseling
entry, we agree with the AJ that appellant was not adversely affected
by the agency's action.<2> Moreover, even if we assume that appellant
was adversely affected, she failed to demonstrate that other similarly
situated employees who sent personal messages on the agency's e-mail
system were treated more favorably.<3>
Although the AJ did not address appellant's harassment allegation, we
find that appellant failed to prove a prima facie case of harassment.
In reaching this conclusion, we note that appellant testified that the
questioning made her feel �real uncomfortable.� (Transcript at 28).
However, recognizing that the questioning about an improper romantic
relationship, scabrously referred to in the e-mails at issue, would
involve explicit references to sex, the agency required a female
personnel officer to be present during the questioning. Based upon
our independent review of the questions asked, we decline to find that
the agency's conduct was sufficiently severe or pervasive such that
it created a hostile work environment under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. (1993). See also 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). Moreover, we find that the issuance of the
counseling entry was warranted based on appellant's improper use of the
e-mail for personal messages and was not sufficiently severe or pervasive
to create a hostile work environment. See Cobb, supra; Beall v. United
States Postal Service, EEOC Appeal No. 01954679 (December 5, 1997).
Accordingly, we discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record
and the credibility of the witnesses. In general, the Commission will
not disturb the credibility determination of an AJ. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD 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:
September 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 For the purpose of the hearing and
in her RD, the AJ consolidated the discrimination/harassment claims
of appellant and her co-worker.
2 The AJ noted that a counseling entry is not considered a disciplinary
action, as it is defined pursuant to AR 60-20/AFR 147-15 as a discussion
between an employee and a supervisor(s) to promote more effective
performance from the employee.
3 We note that while appellant and her co-worker both received counseling
entries, appellant's supervisor was suspended for 27 days as a result
of his conduct in this affair.