01983591
05-03-2000
Thomas E. Campbell, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Thomas E. Campbell v. Department of Defense
01983591
May 3, 2000
Thomas E. Campbell, )
Complainant, )
) Appeal No. 01983591
v. ) Agency No. DM96503/DM97505
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency) )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal from the agency's final decision (FAD)
concerning his complaints of unlawful employment discrimination on the
bases of race (Black) and sex (male), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the reasons that follow,
the Commission AFFIRMS the FAD.
ISSUES PRESENTED
1. Whether complainant has proved that he was subjected to sexual
harassment due to a hostile work environment in his claim that a female
co-worker (FCW) made offensive and unwelcome sexual comments and gestures
to him on many occasions and management failed to take any action despite
being informed of the situation. (Complaint 1)
2. Whether complainant has proved that he was discriminated against
based on his race and sex when he was denied the opportunity to receive
computer training, which in turn precluded him from being eligible for
a promotion. (Complaint 2)
BACKGROUND
During the relevant time complainant was a GS-4 Supply Clerk at the
agency's Inventory Integrity Branch, Depot Operations Division, in
Norfolk, Virginia. Believing he was a victim of discrimination and
sexual harassment, complainant sought EEO counseling and, subsequently,
filed the two complaints referenced above. At the conclusion of the
investigations, the agency issued its FAD, finding no discrimination
with respect to either complaint. Complainant offers no statement in
support of his appeal, and the agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Complaint 1
The FAD concluded that complainant failed to establish a prima facie case
of sexual harassment due to a hostile work environment because he did
not present sufficient evidence to show that the conduct at issue was
so severe or pervasive as to constitute harassment under the applicable
legal standards. In reaching this conclusion, the FAD found that the
five incidents identified by complainant took place over an eight month
period, and that the conduct itself, although offensive in character,
was not so severe as to establish a hostile work environment. In this
context, the FAD also noted that complainant and FCW had a history of
personal conflict characterized by mutual name calling. Additionally,
the FAD concluded that even if a prima facie case of sexual harassment
had been established, the agency successfully avoided liability by
showing that once put on notice, management did address the situation,
which resulted in disciplinary action against FCW.
To establish a prima facie violation of Title VII based on sexual
harassment, complainant must show: (1) that he belongs to a statutorily
protected group; (2) that he 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) that the harassment
complained of was based on sex: and (4) that submission to such conduct
was made either explicitly or implicitly a term or condition of employment
or was used as a basis for an employment decision affecting appellant,
or the conduct unreasonably interfered with his work performance or
engendered an intimidating, hostile, or offensive working environment.
See Quintero v. U.S. Postal Service, EEOC Appeal No. 01960836 (April
21, 1998).
In determining that a work environment is hostile, factors to consider are
the frequency of the claimed discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably
interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems,. Inc. at 3, 6.
The Supreme Court stated: "Conduct that is not severe or pervasive enough
to create an objectively hostile work environment - an environment that
a reasonable person would find hostile or abusive - is beyond Title
VII's purview." Harris, 510 U.S. at 22 (1993).
To avoid liability for hostile environment harassment, an agency must show
that: 1) the acts/conduct complained of did not occur; 2) the conduct
complained of was not unwelcome; 3) the alleged harassment was not
sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment; 4) immediate and
appropriate corrective action was taken as soon as the employer was
put on notice; and/or 5) there is no basis for imputing liability to
the employer under agency principles. Jackson v. U.S. Postal Service,
EEOC Appeal No. 01972555 (April 15, 1999).
In his complaint, complainant identifies four incidents when FCW "patted
her posterior" at him and/or used abusive language. One incident
occurred in February 1996, two occurred in March 1996, and the last
incident occurred in August 1996. The record additionally reflects an
incident in July 1996.
According to the record, prior to the above dates, complainant and FCW
were engaged in an on-going exchange of sexually offensive insults,
which escalated in December 1995. At that time, complainant reported a
confrontation with FCW and her boyfriend, which occurred off the workplace
premises, to the police. He also reported this conduct to his supervisor
(S), and the matter was ultimately referred up to the Deputy Director
(DD) who met with both complainant and FCW and warned each of them
that any further conduct of this nature would result in disciplinary
action. In July 1996, complainant complained to management that FCW had
again engaged in sexually harassing conduct against him consisting of
sexually abusive language and offensive gestures. When DD was notified
of the complaint, she ordered a pre-action fact finding investigation,
which disclosed that FCW made unprovoked hostile comments with sexual
content to complainant. Based on the report of this investigation,
DD recommended disciplinary action against FCW. FCW was subsequently
suspended for 8 hours without pay in December 1996 due to her July 1996
conduct toward complainant.<2>
Based on our review of the record, we concur with the FAD's determination
that complainant failed to establish a prima facie case of sexual
harassment because the behavior complained of was not sufficiently
severe or pervasive as to constitute sexual harassment due to a hostile
work environment under the legal standards set forth above. First of
all, the evidence shows that complainant and FCW engaged in a mutual
give-and-take of sexually offensive insults and gestures, with witness
testimony establishing that complainant shoved FCW into an elevator
during one of these exchanges. Because this conduct was mutual,
provoked by both on various occasions, and apparently engaged in with
equal ferocity and level of vulgarity, we cannot find that complainant
was the "victim" of sexual harassment. Secondly, as noted by the FAD,
the incidents identified by complainant occurred intermittently over a
fairly long period of time, which further mitigates against a finding
that this conduct was so severe or pervasive as to create a hostile
work environment.
We also agree with the FAD that even if a prima facie case could be
established, the agency took appropriate action to address the situation,
thereby avoiding liability. See Jackson, supra. Specifically, the
FAD found that regarding the December 1995 incident, management took
appropriate action, referring the matter to DD who met with both parties,
attempted to resolve the conflict, and warned both that disciplinary
action would be taken if the conduct recurred. Then, when complainant
informed management regarding the July 1996 incident, management acted
on it, conducting an investigation and disciplining FCW. We note that
complainant contends that he informed S in February 1996 and March 1996
regarding two claimed incidents of sexual harassment by FCW, arguing
that the agency had notice at this time and failed to respond. We find
that the evidence on this point is conflicting, but, because complainant
has failed to establish a prima facie case of sexual harassment, we note
that we need not resolve this evidentiary conflict nor further address
this contention.
After a careful review of all the evidence of record, the Commission
AFFIRMS the FAD's conclusion that complainant failed to prove that he
was subjected to sexual harassment which was sufficiently severe or
pervasive so as to constitute a hostile work environment.
Complaint 2
In this complaint, complainant contends that S gave a White female
co-worker (WFCW) a special assignment and provided her with training
to use the specialized computer system needed to perform the duties
of this assignment. He further contends that this experience and
training resulted in a subsequent promotion for WFCW which he would have
instead received had he been given the special assignment and computer
training. The FAD determined that complainant failed to establish a
prima facie case of sex or race discrimination regarding this complaint
because he failed to produce sufficient evidence to show that WFCW was
"similarly situated," finding that his duties did not require the use
of a computer, and computer training was not warranted for this reason.
The FAD additionally concluded that even if a prima facie case of sex or
race discrimination had been established, complainant failed to produce
any evidence that the agency's reasons for its action were a pretext
for discrimination.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the
agency that complainant failed to establish a prima facie case of
sex or race discrimination because he presents no evidence to support
even an inference that S's decisions were motivated by discrimination.
In reaching this conclusion, we note that WFCW held a forklift operators
licence, a requirement for the special assignment, and complainant did
not, rendering him ineligible for this assignment. Moreover, despite
complainant's contentions to the contrary, WFCW did not receive a formal
computer training course, but rather was instructed on-the-job on how
to input data into the specialized computer system. Additionally, we
find that the record supports S's testimony that complainant's request
for computer training was denied because it was not required in the
performance of his duties.
Therefore, after a careful review of the record, the Commission AFFIRM the
FAD's conclusion that complainant failed to prove that S was motivated
by sex or race discrimination when he denied his request for computer
training.
CONCLUSION
Accordingly, based on the evidence of record, application of the legal
standards referenced herein, our analysis and findings as set forth
above, as well as arguments and evidence not discussed in this decision,
the Commission AFFIRMS the FAD with respect to each issue on appeal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 3, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 Complainant also contends that S refused to assign him and FCW
to different work areas as a means of avoiding conflict. However,
in his testimony, S denies that complainant made such a request, and
further states that he never assigned the two to the same work area.
We find that this is credible because it appears that the identified
incidents did not primarily occur while engaged in a work assignment,
but rather before or after work or during break times.