01994853
07-11-2002
Sharon Gellineau, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Sharon Gellineau v. General Services Administration
01994853
07-11-02
.
Sharon Gellineau,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01994853
Agency No. 96-NCR-WP-SSG-9
Hearing No. 100-98-7427X
DECISION
Sharon Gellineau (hereinafter referred to as complainant) filed a timely
appeal from the December 16, 1998, final decision of the General Services
Administration (hereinafter referred to as the agency) concerning her
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.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of reprisal and sex when she was allegedly harassed by
a co-worker from June 1995 through February 1996.
Complainant filed her formal complaint in September 1996. Following an
investigation, she elected a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing finding no
discrimination. The agency's final decision adopted the AJ's decision.
In her complaint, complainant claimed that she was subjected (1) to sexual
harassment on an ongoing basis by the President of the Council of Locals
at the agency (E1), and (2) to a hostile work environment because the
agency failed to prevent E1's actions. At the time of the events herein,
complainant held the position of Realty Specialist; however, for the
period prior to December 8, 1995, she was engaged in union activity on a
full-time basis as assistant to the E1. In that role, she assisted E1,
traveled to numerous conferences with him, and worked closely with him.
In addition, on a personal level, E1 loaned her $700 in May 1995, in
order to support her vitamin/diet pill business, helped her move and
fixed her cars, and gave her a copy of his book of poetry.
Complainant described E1's harassment as beginning in June 1995 and
consisting of buying her flowers, commenting on how she would look in a
bathing suit, making phone calls to her home to discuss union business,
inviting her to the mountains, asking her to his hotel room, and giving
her small gifts. In mid-December 1995, after the union was placed under
a Trustee, complainant reverted to her position of Realty Specialist.
On December 13, 1995, she complained about E1's behavior to one of
her superiors, describing his continued contact with her and that she
found his poetry offensive; in January 1996, she also complained that
E1 sent derogatory messages about her to others. Management directed
her to inform E1 that she found his communications offensive and that
she wished no further contact with him. In addition, the agency's
Federal Protective Service initiated an investigation, and an officer
accompanied her at work for one-to-two weeks and went with her to meet
E1 in order to return his loan. Shortly thereafter, at her request to
work in another job in a more secure situation, the agency arranged a
detail for her at the Department of State.
The AJ found that any actions by E1 while complainant and E1 were
assigned to union duties full-time were outside EEOC's jurisdiction and
dismissed the period of time prior to December 8, 1995, for failure to
state a claim.<1> With regard to the time period after complainant and
E1 returned to agency work, the AJ held that the events complained of
did not constitute illegal harassment and that the agency took immediate
and effective action after complainant brought her concerns to agency
management. For this reason, she found that complainant failed to
establish a claim of sexual harassment resulting from a hostile work
environment. In her appeal brief, complainant objected to the dismissal
of complainant's pre-December 8 claim, contended that the AJ's finding
of no discrimination was incorrect, and argued that the agency's efforts
were �inept.�
After a review of the record in its entirety, including consideration of
all statements and arguments submitted on appeal, it is the decision of
the Commission to affirm the Administrative Judge's ultimate finding
that the agency did not discriminate against complainant based on sex
or in reprisal. In so holding, we agree with the AJ's determination
that complainant did not establish a claim of sexual harassment.
To prevail on a claim of harassment, complainant must show that she was
subjected to an unwelcome hostile work environment because of her sex
and prior EEO activity. EEOC Policy Guidance on Current Issues of Sexual
Harassment, No. N-915-050 (March 19, 1990) (1990 Guidance). In general,
unwelcome conduct is conduct that was not solicited or incited by the
complainant and that which she regarded as undesirable or offensive.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Evidence of
unwelcomeness may include whether complainant made a contemporaneous
complaint or form of protest, particularly when some prior consensual
interaction would have led the harassing party to believe that the conduct
was not unwelcome. 1990 Guidance, p. 7; see Davis v. USPS, EEOC Appeal
No. 01910648 (May 2, 1991). In addition, the Commission will consider
whether a complainant's conduct is consistent with his/her assertions,
the inquiry being whether by his/her conduct s/he indicated that the
conduct was unwelcome. 1990 Guidance, p. 9 (citing, Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986)); see also Sullivan v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01991021 (June 8, 2000).
In the situation before us, because of her interaction with E1, including
accepting favors from him over a period of time, we find that the evidence
before us does not support complainant's claim that E1's actions were
unwelcome.<2> Moreover, we agree with the AJ and find that, as soon as
the agency became aware of complainant's concerns, it acted to address
them. See Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
For all the above reasons, we agree with the ultimate finding of the
AJ and affirm the agency's final decision that the agency did not
discriminate against complainant.
CONCLUSION
Accordingly, the agency's final agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
____07-11-02______________
Date
1We decline to affirm the AJ's dismissal of a portion of the complaint
and will consider the entire period claimed by complainant.
2We note, in addition, that the working relationship did not end by
complainant's own action but rather when the union was placed under a
trustee, and all employees were returned to their assigned positions.