Susan K. Howard, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01976085 (E.E.O.C. Sep. 7, 1999)

01976085

09-07-1999

Susan K. Howard, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.


Susan K. Howard v. Department of Transportation

01976085

September 7, 1999

Susan K. Howard, )

Appellant, )

)

v. )

) Appeal No. 01976085

Rodney E. Slater, ) Agency No. 4-97-001

Secretary, )

Department of Transportation, )

(Federal Aviation Administration) )

Agency. )

)

DECISION

Appellant filed a timely appeal with this Commission from a final agency

decision ("FAD") concerning her complaint of employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. In her complaint, appellant alleged that she was

discriminated against on the basis of sex (female) when she was harassed

and subjected to a hostile environment by a co-worker ("CW"). This appeal

is accepted in accordance with the provisions of EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was employed

as an Air Traffic Control Specialist, at the agency's Jackson Air Traffic

Control Tower in Jackson, Michigan. Appellant alleges that her problems

with CW began in August 1995, when CW returned from vacation and learned

that appellant had organized a luncheon using union funds for airport

personnel to better their working relationships.<1> Appellant states

that CW berated her for spending the funds in such a manner. She alleges

that since this incident, CW has continually harassed her primarily by

ignoring her for long periods and then suddenly verbally attacking her

in front of her peers.

Appellant states that the events that precipitated this complaint

occurred on August 28, 1996, when CW badgered her about who told her that

he had indicated that she should take an open position in the tower.

On August 29, 1996, appellant went to inform her supervisor ("AS") of

the CW's harassing behavior. She alleges that prior to the August 28,

1996 event, she had reported CW's behavior to AS on at least a half

dozen occasions, but AS never took any action other than to pass out

a sexual harassment article. AS states that appellant did not inform

him of the problems she was having with CW until on August 29, 1996.

He states thereafter he investigated the situation and determined that

the problem was a personal conflict between appellant and CW, unrelated

to appellant's gender.

Believing she was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on October 3, 1996.

The agency accepted the complaint for processing, and at the conclusion

of the investigation, appellant requested that the agency issue a final

agency decision.

The FAD concluded that appellant failed to establish by a preponderance

of the evidence that she was subjected to severe or pervasive harassing

conduct because of her gender. The FAD found that: (1) appellant had not

provided any corroborating evidence showing that she was harassed by CW;

(2) even assuming that the alleged incidents had occurred, CW's conduct

was neither severe nor pervasive and for the most part involved inaction,

such as refusing to speak to appellant; and (3) during the alleged period

of harassment, appellant and CW socialized together with their families

outside of the workplace. Finally, the FAD concluded that considering

the totality of the circumstances, appellant failed to establish that

she was subjected to a hostile work environment.

On appeal, appellant contends that the agency failed to take into

consideration all of the evidence in the case and requests that the

Commission reexamine the record. The agency requests that we affirm

its FAD.

After a careful review of the record, based on Harris v. Forklift Systems,

Inc., 510 U.S. 17, 21 (1993), the Commission finds that appellant failed

to establish that the alleged harassment was based on discriminatory

animus toward her sex. In reviewing the evidence, it appears that

appellant and CW were once friends and after certain incidents, found it

difficult to effectively work together. The incidents underlying this

complaint began when appellant and CW had a confrontation surrounding the

use of union funds. We find that the evidence does not demonstrate that

any of the incidents in question were severe or pervasive or resulted

because of appellant's gender; but instead, resulted because of the

deteriorating relationship between the two. Therefore, after a careful

review of the record, including appellant's contentions on appeal, the

agency's response, and arguments and evidence not specifically addressed

in this decision, we AFFIRM the FAD.

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 7, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 At the time, CW was the president of the local union while appellant

was the vice-president.