Sonia Ferrer Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 23, 2000
01970280 (E.E.O.C. Feb. 23, 2000)

01970280

02-23-2000

Sonia Ferrer Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Sonia Ferrer v. Department of the Navy

01970280

February 23, 2000

Sonia Ferrer )

Complainant, )

)

v. ) Appeal No. 01970280

) Agency No. DON-93-00181-007

Richard J. Danzig, ) EEOC No. 120-94-5303X

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Complainant timely appealed the agency's final decision that it had not

discriminated against her in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission

accepts the appeal in accordance with EEOC Order No. 960.001.<1>

On March 17, 1993, complainant, a GS-6 Police Officer at the St. Juliens

Creek Annex (SJCA), Norfolk Navy Shipyard, filed a formal EEO complaint

alleging discrimination on the basis of her sex (female) when she was

harassed by the receipt of a Christmas card from her immediate supervisor

on or about December 28, 1992. Complainant also alleged that she was

discriminated against on the basis of sex (female) and in reprisal

for reporting a charge of sexual harassment when she was subjected to a

hostile environment in the form of verbal remarks and other improper acts

by supervisors in her department. Following the agency's investigation

of complainant's complaint, complainant requested a hearing. A hearing

was held on June 20, 1994.

On September 16, 1996, the AJ issued a recommended decision finding

no discrimination. In his decision, the AJ noted that complainant

testified that prior to the incidents alleged in the complaint, she had

received harassing phone calls from the facility. The AJ found that an

investigation was conducted, but management could not determine who had

initiated the phone calls. Furthermore, the AJ found that the agency's

action was sufficient to place employees on notice that such conduct

was inappropriate.

With respect to the incidents alleged in her complaint, the AJ found that

complainant failed to establish a prima facie case of sexual harassment

when she received a Christmas card from her first line supervisor (male).

The record reveals that complainant's supervisor gave complainant a

Christmas card on or about December 28, 1992, wherein the following

was written:

Season's Greetings and all good wishes for the New Year. [printed

message].

Merry Christmas BB. I say that with love so don't get mad. Thanks

[complainant] for the job you did for me this year. Get off S.L. (sick

leave) and I'll make you Sgt. You would make a good one.

Merry Christmas [complainant].

(Signed) [supervisor]

The supervisor testified that the initials "BB" stood for "Big Butt," a

term he previously used in a joking manner with complainant. He also

testified that complainant used to call him, "Mountain Man" also

in a joking manner. Although the AJ found that the use of the term

"BB" was inappropriate, he found that the nickname as well as entire

message on the Christmas card was not sufficiently offensive, shocking

or pervasive to rise to the level of sexual harassment. Nonetheless,

the AJ also found that once complainant alerted management to the matter,

complainant's third line supervisor conducted a "preaction investigation."

Furthermore, complainant's supervisor was relieved of his supervisory

duties, reassigned away from complainant and suspended for five working

days for "conduct unbecoming a supervisor." Therefore, the AJ found that

once complainant reported the incident involving the Christmas card, the

agency took immediate and appropriate action to remedy the situation.

Indeed, complainant testified that the supervisor did not harass her

again. In sum, the AJ found that the agency was not liable for sexual

harassment based upon the Christmas card incident.

Complainant also alleged that subsequent to the initiation of her sexual

harassment complaint, she suffered additional acts of harassment which

constituted a hostile environment based on her sex and in reprisal for her

EEO activity. Specifically, complainant testified that in early 1993,

a cartoon was posted in the office showing a stork trying to swallow a

frog grasping the storks neck to avoid being swallowed. At the top of

the cartoon, someone had written, "[d]on't ever give up [supervisor]!"

Complainant testified that she felt the cartoon was offensive because she

assumed the cartoon was in support of the supervisor after she complained

about the Christmas card. Complainant's third line supervisor testified

that after he was notified of the cartoon, he had it removed.

Furthermore, also in 1993, complainant testified that someone wrote "suck

wad" on the duty roster. Complainant testified that she was offended by

the sexual connotation and gave the roster to her second line supervisor.

The second line supervisor testified he investigated the matter, but

could not find out who wrote the statement. He did however, inform the

sergeants that such remarks were inappropriate. The AJ found that both the

poster and the note on the duty roster did not constitute sex or

discrimination based on reprisal.

Complainant claimed that when a new supervisor took over as shift

supervisor, he instructed complainant and other female employees that they

could not go to the restroom or get coffee. Furthermore, complainant

stated that the new supervisor's strict rules were in reprisal for her

filing an EEO complaint, and in an attempt to get the other employees

to blame complainant for the institution of strict rules. The AJ found

that the new rules applied to all employees, not just complainant.

Furthermore, the AJ found insufficient evidence that the new supervisor

changed the rules in order to retaliate against complainant for her

prior EEO activity.

Assuming arguendo that complainant established a prima facie case of sex

and reprisal discrimination, the AJ found that the agency had articulated

legitimate, nondiscriminatory reasons for instigating the new policies.

The new supervisor testified that he did not deny restroom use when

necessary. He also testified that he instructed both male and female

employees to obtain coffee prior to beginning their shift and not to "hang

out" in Building 305, where the coffee machine was located. According to

the second line supervisor, the change in rules was ordered by higher

level management. Although the AJ found that the change in rules came

close to the commencement of her complaint, he found no evidence that the

agency discriminated against complainant when it initiated the new rules.

Lastly, complainant testified regarding a hostile environment which

existed during a sexual harassment training session. With respect to

this incident, the AJ found that however inappropriate, the fourth line

supervisor arranged for a second training session which occurred without

incident. Furthermore, the EEO Specialist who conducted the training

testified that the fourth line supervisor was supportive and sincere

about his concerns regarding sexual harassment issues at the facility.

The AJ also found that the training incident was isolated and did not

rise to the level of sexual harassment. Thus, the AJ found that once

alerted to the first shift's behavior during the training session,

the fourth line supervisor took immediate action to remedy the problem.

Accordingly, he found that this incident did not render the agency liable

for sexual harassment.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding regarding whether discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant

facts and properly analyzes the appropriate regulations, policies

and laws. The Commission has reviewed complainant's statement on

appeal and discerns no basis in which to disturb the AJ's finding of

no discrimination. On appeal, complainant argues that the AJ examined

each incident individually, and not cumulatively. Thus, complainant

argued the agency's actions amounted to sexual harassment or harassment

based on reprisal. While we do not condone the behavior exhibited by

complainant's co-workers or the language used by the supervisor in his

Christmas card, we agree with the AJ's finding that taken as a whole,

the incidents alleged do not constitute actionable sexual harassment

or harassment based on reprisal pursuant to Title VII. Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 23, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ _________________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.