Rene C. Newman, Appellant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 4, 1999
01964330 (E.E.O.C. Jan. 4, 1999)

01964330

01-04-1999

Rene C. Newman, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Rene C. Newman v. Department of the Navy

01964330

January 4, 1999

Rene C. Newman, )

Appellant, )

)

v. ) Appeal No. 01964330

) Agency No. DON-94-61337-N01

John H. Dalton, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaints 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. The appeal is accepted in accordance with EEOC

Order No. 960.001.

ISSUES PRESENTED

1. Whether appellant proved, by a preponderance of the evidence,

that she was discriminated against because of her race and national

origin (Filipino) when she received a rating of "Very Good" rather than

"Outstanding" on her performance evaluation for the period ending in

May 1993.

2. Whether appellant proved, by a preponderance of the evidence, that

she was discriminated against based on her sex (female) when she was

sexually harassed by her first-line supervisor.

BACKGROUND

Appellant, at the time she filed her complaint, was employed as a

Dispensing Optician, UA-0699-06, at the Naval Hospital, Navy Exchange,

Beaufort, South Carolina. As a Dispensing Optician, she performed tasks

such as making minor frame repairs and adjustments. On October 14, 1993,

appellant filed a complaint concerning the above issues. Following an

investigation, appellant, in April 1994, was provided a copy of the

investigative file and notified of her right to request a hearing before

an EEOC Administrative Judge (AJ). The record indicates that appellant,

through her attorney, requested a hearing. The hearing was scheduled for

September 9, 1994; however, appellant and her attorney did not appear.

On September 21, 1994, the AJ remanded the complaint to the agency.

In April 1996, the agency issued a final decision that found that

appellant had not been discriminated against. It is from this decision

that appellant now appeals.

ANALYSIS AND FINDINGS

Issue 1

According to appellant, she received a rating of "Outstanding" every year

she was in her position. For the period ending in May 1993, however,

she received, without explanation, the lower rating of "Very Good."

Appellant, arguing that she did not perform her job any differently,

alleged that she received the lower rating due to her race and

national origin (Filipino). This allegation constitutes a claim of

disparate treatment employment discrimination. Allegations of disparate

treatment are analyzed under the tripartite scheme of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-804 (1973). Under that analytical

framework, appellant must present sufficient evidence to raise an

inference of discrimination, i.e., a prima facie case of discrimination.

At that point, the agency must articulate a legitimate, nondiscriminatory

reason for its action to rebut the inference of discrimination. Appellant

must then show, by preponderant evidence, that the agency's stated

reason was a pretext for discrimination. Appellant has the ultimate

burden of showing that discrimination occurred. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Although the initial inquiry in a discrimination case 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. 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 he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

were merely a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).

Therefore, in the present case, the Commission will bypass the prima facie

stage of the analysis and focus on whether the agency's explanations for

its actions were a pretext for discrimination based on race or national

origin.

According to appellant's immediate supervisor, A-1, she received a rating

of "Very Good," the second highest rating possible, due to deficiencies

in her performance. A-1 testified that appellant received a numerical

rating of "4," instead of "5" in a number of areas. Specifically,

he maintained that in the area of "initiative," appellant did not

do enough to increase sales; and she failed to reduce the hours of

intermittent employees. In the area of "quality," A-1 stated that he

received complaints from customers concerning appellant's failure to make

adjustments to their frames; therefore, on two occasions, A-1 had to make

refunds to customers. In the area of "quantity," A-1 indicated that

although appellant's sales were less than the previous years' receipts,

she brought in intermittent help. Consequently, her sales did not

increase. In the area of "dependability," A-1 indicated that appellant,

when asked to perform certain tasks, sometimes would not comply.<1>

In the area of "self-development," A-1 stated that to his knowledge

appellant did not take advantage of free in-house courses. In the area

of "sales performance," A-1 stated that appellant's sales were down,

but her payroll and benefits were high. According to A-1, when sales

go down, expenses and payroll should also be decreased, proportionately.

A-1 also indicated that appellant, instead of sending lenses to Charleston

for processing, sent them to a more expensive location. In the area of

"affirmative action," A-1 stated that appellant, to his knowledge, did

not attend Command briefings or ask her employees to attend. In the

area of "leadership," A-1 stated that he was not aware of appellant

working with her subordinates in order to gain their support. Finally,

in the area of "planning and organizing," A-1 stated that appellant did

not plan and use personnel and equipment effectively. A-1 denied that

he took appellant's race or national origin into account.

Appellant, in rebuttal, stated that her sales were down because there was

no doctor available for the clients of the Optometry Clinic. She also

said that A-1 did not inform her about classes so that she could inform

her subordinates. Appellant also noted the fact that C-1, a Sales

Supervisor, told her that A-1 stated that he did not like Filipinos.

Finally, appellant alleged that her rating was "Outstanding" until she

filed an EEO complaint against A-1.<2>

After a careful review of the record, the Commission finds that

appellant failed to establish, by a preponderance of the evidence,

that the legitimate reasons offered by A-1 were not the agency's true

reasons, but were instead a pretext for discrimination based on race or

national origin. Appellant offered explanations for two of the reasons

offered by A-1; however, she did not dispute the remaining reasons.

Furthermore, C-1 adamantly denied telling appellant that A-1 did not

like Filipinos. Appellant failed to provide persuasive evidence that

her race or national origin played any role in A-1's decision to rate

her performance as "Very Good."

Issue 2

According to appellant, in January 1992, A-1 came to her office to

discuss business. While there, appellant maintained that he told

her that she looked sexy and marvelous. Appellant stated that she

ignored his comments. On other occasions, appellant indicated that A-1

often touched her necklaces, fixed her collars, and touched her hair.

She also testified that A-1 once kissed her on the cheek. Again, appellant

stated that she ignored his conduct. During the Summer of 1992, A-1,

she alleged, told her that she needed to close the shop and go out for

a drink with him. According to appellant, she told him he was "crazy."

On June 23, 1993, appellant stated that A-1 asked her why she was not

wearing sexy clothes. On June 30, 1993, A-1, according to appellant,

grabbed her blouse and looked down<3>, and stated "what are you hiding?

You have nothing to hide, you look marvelous." According to appellant,

she told him to stop. At that point, she alleged that A-1 let his hand

"fall down" her breast. According to appellant, there were witnesses to

this incident, but she did not get their names. She indicated, however,

that she told C-2 about the incident, and was told that what happened

to her constituted sexual harassment.

Appellant, on July 20, 1993, spoke to A-2, the Navy Exchange Officer,

who was A-1's supervisor.<4> According to appellant, she waited until

July 1993 to speak to someone about A-1, because she was afraid he would

fire her. Although A-1 never threatened to fire her, she noted that A-1,

on several occasions when they discussed business, asked her what she

would do if she lost her job.

A-2 testified that appellant visited his office and provided him with

a written statement that included allegations of sexual harassment

against A-1. According to A-2, he spoke to his staff about appellant's

working environment. He then paid a surprise visit to Beaufort in order

to meet with A-1. A-2 stated that he found nothing out of the ordinary

except for appellant's attire, which he thought was not appropriate

for the workplace.<5> Ultimately, he took appellant's complaint to

the Commanding Officer and asked for his assistance in investigating

appellant's allegations.

A-1 denied making comments of a sexual nature to appellant. Contrary to

appellant's allegation that he asked her to have a drink with him,

A-1 indicated that he did not drink. According to A-1, the only

time he ever spoke to appellant about her attire was when he felt it

was not appropriate.<6> He stated that he had to counsel appellant,

as tactfully as possible, on appropriate attire for the workplace.<7>

According to A-1, the way appellant dressed impacted on the business,

because young males, who did not need glasses, came into the shop,

while older customers, who needed glasses, were driven away. A-1 noted

that customers, hospital staff members, and employees often approached

him about appellant's style of dress. A-1 denied touching appellant's

necklace, hair, or clothes. He also denied kissing her on the cheek.

With regard to appellant's accusations concerning the June 30, 1993

incident, A-1 maintained that "the conversation that [appellant] alleged

took place on 30 June 1993 where I supposedly looked down her blouse

never took place. I never said or did any of these things."

A-1, by way of rebuttal, noted the fact that appellant had a habit of

hitting him. When he finally asked her to stop, she did so. Furthermore,

he testified that appellant once gave him an anatomically correct female

doll that was characterized as being "sexually explicit."<8> Finally,

A-1 stated that he never implied that appellant would be fired under

any circumstance.

With regard to touching A-1, appellant maintained that when someone told

her something funny, she had a habit of "slap[ing]" their shoulders.

With regard to giving A-1 the doll, appellant stated that she and C-4

gave it to him as a joke.

C-1, who worked on the floor below appellant, testified that she never

witnessed A-1 making comments of a sexual nature or saw him touching

appellant. Appellant, she stated, never told her that she was being

sexually harassed by A-1. She did note, however, that appellant has come

to work wearing clothes that she felt were not appropriate. According

to C-1, A-1 did not treat appellant differently than other employees,

and that appellant was rarely around A-1. Finally, C-1 stated that,

in her opinion, A-1 was not the type of person who would sexually harass

someone.

C-2, who worked for C-1, also testified that she never witnessed A-1

making comments of a sexual nature or saw him touching appellant.

She stated that on a number of occasions, she spoke to A-1 about

appellant's attire. C-2 stated that "[i]n the Summer, [appellant]

came to me one day and said [A-1] grabbed her jacket in front and said

`what's that.'" According to C-2, she told appellant if it offended her

she should tell [A-1]. She denied telling appellant that she thought the

alleged incident constituted sexual harassment. She stated that A-1 did

not treat appellant any differently than other employees, and that in

her opinion, he would not sexually harass someone. With regard to the

doll that appellant gave A-1, C-2 stated that appellant showed it to her.

C-2 testified that "[w]hen I pulled the flap up and saw how it was made,

I couldn't say anything."

C-3, who also worked for C-1, testified that she never witnessed

A-1 making comments of a sexual nature to appellant or witnessed him

touching her. She did indicate that appellant told her about the June

30, 1993 incident. She characterized appellant as being "very upset."

She also characterized appellant's style of dress as "attractive."

According to C-3, appellant would not have made up the June 30, 1993

incident.

C-4, who worked for appellant, testified that she never witnessed A-1

making comments of a sexual nature to appellant or witnessed him touching

her. According to C-4, she has heard A-1 comment that appellant's style

of dress was inappropriate. According to C-4, appellant told her that

A-1 asked her out. She also testified that appellant told her that A-1

opened her blazer and looked at her blouse. C-4 opined that appellant,

prior to filing her complaint, sometimes appeared nervous around A-1.

C-4 also opined that A-1 was not the type of person who would sexually

harass someone. Finally, C-4 directly contradicted appellant's assertion

that she was involved in giving the doll to A-1. C-4 testified that:

I was not involved, in any way, with [appellant] giving [A-1]

an anatomically correct doll. I would say about last April or March

. . . I saw the doll in the optical shop. [Appellant] said a friend had

given it to her. She did not tell me she was going to give it to [A-1]

and didn't tell me so until sometime after the fact.

EEOC Regulations provide that harassment on the basis of sex is a

violation of Title VII. 29 C.F.R. �1604.11. The U.S. Supreme Court has

held that a violation of Title VII may be predicated on either of two

types of sexual harassment: (1) harassment that conditions concrete

employment benefits in return for sexual favors, i.e., quid pro quo

sexual harassment; and/or (2) harassment that, while not resulting in

an economic injury, is severe or pervasive enough to create a hostile

or offensive work environment. Meritor Savings Bank F.S.B. v. Vinson,

477 U.S. 57, 62-67 (1986).

In order to establish a prima facie case of hostile environment sexual

harassment, appellant must show that: (1) she belongs to a protected

class; (2) she was subjected to sexual harassment in the form of unwelcome

sexual advances, requests for sexual favors, or other verbal or physical

conduct of a sexual nature; (3) the harassment was based on sex; and

(4) 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, Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

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).

Usually, the next step in the analysis would be to determine whether the

agency could avoid liability for the alleged conduct. Here, however,

we do not believe that such an inquiry is necessary. The preponderance

of the evidence does not support a finding that appellant was subjected

to the conduct that she alleged. The testimony from C-1, C-2, C-3,

and C-4 indicated that they had never witnessed A-1 making comments of a

sexual nature to appellant or witnessed him touching her. Although C-2,

C-3, and C-4 were aware of the June 30, 1993 incident, in each case, they

were relying on information provided to them by appellant. Furthermore,

we find that appellant's conduct, i.e., repeatedly touching A-1 and

giving him an anatomically correct female doll, is inconsistent with

her assertion that he subjected her to a hostile work environment.

Reprisal

Appellant, in a March 1994 statement, indicated that her rating was

"Outstanding" until she filed an EEO complaint against A-1. A fair

reading of this allegation is that appellant, in addition to the bases

that have already been addressed above, also raised reprisal as a basis

of discrimination. According to A-1, appellant's performance appraisal,

which was for the period ending in May 1993, was not given to her

until August 16, 1993, because appellant, after being told on several

occasions that it was ready, did not come by his office to obtain it.

As previously noted, appellant, in July 1993, spoke to A-2 about her

allegations of sexual harassment. Therefore, appellant, arguably, has

established a prima facie case of discrimination based on reprisal.<9>

We find, however, that, for the reasons stated above, A-1 presented

legitimate, nondiscriminatory reasons for rating appellant's performance

as "Very Good." We find no persuasive evidence that A-1 was motivated

by a desire to discriminate against appellant because of her allegations

that he sexually harassed her.

CONCLUSION

Accordingly, it is the decision of the Commission to AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 this

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 this 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 this 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 this 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:

JAN 4, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat

1A-1 noted, as an example, an occasion when he asked all of his

subordinates to keep a record of the type of customers that were

utilizing their services, i.e., active duty, dependents or retirees.

Although his other subordinates complied, appellant maintained that she

lost the paperwork. According to A-1, he did not receive the

information for two months.

2This allegation, raised for the first time in a statement dated March 7,

1994, will be addressed below.

3Appellant was sitting in a chair at the time.

4A-2 was stationed in Charleston, South Carolina.

5A-2 indicated that A-1, on numerous occasions, had told him that

appellant often wore inappropriate clothing to work.

6A review of A-1's notes reveal numerous occasions when he felt that

appellant's attire was inappropriate. A-1 also noted those occasions

when he thought appellant was dressed appropriately.

7For example, A-1 indicated that appellant once wore a mesh top without

a bra and a "micro-mini skirt."

8A-1's notes for April 8, 1998 indicate, in pertinent part, that "I

stopped by the Optical Shop. [Appellant] gave me a stuffed doll that

when you lift the front flap was naked . . . . I really found this to

be strange."

9A prima facie case of reprisal is established by showing that (1)

appellant engaged in protected activity; (2) the employer was aware of the

protected activity; (3) appellant was subsequently subjected to adverse

treatment; and (4) the adverse action followed the protected activity

within such a period of time that retaliatory motivation may be inferred.

Manoharan v. Columbia University College of Physicians and Surgeons,

842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500 (6th

Cir. 1987); McKenna v. Weinberger, 729 F.2d 783, 790, (D.C. Cir. 1984).