01975546
09-23-1999
Sandra L. Henderson, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Sandra L. Henderson v. Environmental Protection Agency
01975546
September 23, 1999
Sandra L. Henderson, )
Appellant, )
) Appeal No. 01975546
v. ) Agency No. 95-0021-R6
) Hearing No. 310-96-5493X
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
)
DECISION
INTRODUCTION
Appellant initiated an appeal to the Equal Employment Opportunity
Commission (Commission) concerning her allegation that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that she
was discriminated against based on sex when she was allegedly sexually
harassed.
BACKGROUND
During the period in question, appellant was employed as an Office
Automation Clerk at the agency's facility in Dallas, Texas. Appellant
filed a formal complaint in December 1994 alleging that she had been
sexually harassed. Following an investigation, a hearing was held before
an administrative judge (AJ) who thereafter issued a recommended decision
(RD) finding no discrimination. The agency subsequently issued a final
decision (FAD) dated May 28, 1997, adopting the RD. It is from this
decision that appellant now appeals.
The record reveals that, as of October 1994, appellant had been
meeting regularly with an Employee Relations Specialist (the Responsible
Official, RO) for several years regarding various work-related problems.
Appellant states that, during a meeting with the RO on October 27,
1994, he began discussing panty hose, explaining that he wears them
on hunting trips in order to keep warm. According to appellant, the
RO remarked that the panty hose were uncomfortable because they made
his "***** sweat." Appellant states that, later in the conversation,
the RO touched her arm just above her wrist while emphasizing a point,
and that, in order to emphasize a subsequent statement, he rubbed the
upper part of her right arm.
In response, the RO denied making any inappropriate remarks to appellant
during their meeting, and, in this regard, noted that it was appellant
who raised the subject of panty hose. According to the RO, he merely
told appellant that he had never worn panty hose and that he did not
think they would be comfortable. The RO also acknowledged touching
appellant on the wrist, stating, "I remember demonstrating something to
her about the aggravation of a sore, tender spot, something like that,
and there was a touch by me with one finger on the back of her hand."
The RO denied touching appellant anywhere else.
In recommending a finding of no discrimination, the AJ initially found
that the testimony of appellant and the RO was in conflict. She found
further that, even assuming appellant's version was accurate, the actions
in question did not rise to the level of a hostile work environment.
In so finding, the AJ noted that the incidents occurred on one occasion
and that appellant never again met with the RO.<0>
ANALYSIS AND FINDINGS
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of sexual harassment, appellant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex;<0> (4) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. 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).
Initially, we note, as the AJ did, that appellant and the RO offered
conflicting versions of what occurred. Even assuming, however, that
appellant's version is accurate, we find that the RO's actions did not
rise to the level of unlawful harassment. In so finding, we note that,
although the RO admittedly touched appellant, it was not in an intimate
area.<0> Furthermore, the nature of the incidents complained of,
coupled with the fact that they occurred on only one occasion, leads
the Commission to conclude that they were not "sufficiently severe [and]
pervasive to alter the conditions of [appellant's] employment and create
an abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). Accordingly, we find appellant has not established
that she was sexually harassed.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against her as alleged.
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:
Sept. 23, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 In response to appellant's initial complaint, management conducted
an internal investigation. Although officials concluded that the
alleged actions did not constitute unlawful harassment, they told
appellant that she would be entitled to have a third person present
during any future meetings with the RO.
02 In addition to considering conduct that is explicitly sexual in
nature, the Commission will consider other conduct or comments which
are related to the complainant's gender.
03 The Commission presumes "that the unwelcome, intentional touching of
a [complainant's] intimate body areas is sufficiently offensive to alter
the conditions of her working environment and constitute a violation
of Title VII." Policy Guidance on Current Issues of Sexual Harassment,
EEOC Notice No. N-915-050 at 17 (March 19, 1990).