Thomas E. Campbell, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionMay 3, 2000
01983591 (E.E.O.C. May. 3, 2000)

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.