01A41228_r
04-14-2004
Valerie K. Welle v. Department of Commerce
01A41228
April 14, 2004
.
Valerie K. Welle,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A41228
Agency No. 00-63-00061D
Hearing No. 260-A1-9071
DECISION
Complainant appeals to the Commission from the agency's December 11, 2003
decision finding no discrimination. Complainant alleges discrimination on
the bases of sex (female), disability (depression and kidney disease), and
retaliation when she was subjected to a sexually hostile work environment
and subsequently terminated. On September 30, 2003, after a hearing, an
Administrative Judge (AJ) issued a decision finding no discrimination.<1>
Specifically, the AJ found that complainant failed to establish that
she was subjected to a hostile work environment. With regard to the
termination, the AJ found that, assuming complainant established a
prima facie case, the agency articulated a legitimate, nondiscriminatory
reason for its actions which complainant failed to rebut. The agency
issued a decision on December 11, 2003, adopting the AJ's decision.
Complainant now appeals from the agency's December 11, 2003 decision.
The record indicates that during the relevant time, complainant was
employed by the agency responsible for conducting the decennial census.
Complainant was hired as the Assistant Manager for Administration of
the Des Moines Local Census Office. She was responsible for ensuring
that appropriate paperwork was filled out to hire sufficient temporary
employees to staff the Des Moines Local Census Office, and to ensure
that employees of the office were paid in a timely manner.
We find that complainant has failed to show that she was subjected to a
sexually hostile work environment. According to complainant's testimony,
she was subjected to a sexually hostile work environment when there were
"conversations about femi-Nazis, how it was impossible to find a virgin
anymore for sacrifice; . . . [and when co-workers] got their pagers, they
were set to vibrate and . . . would talk about vibrators and . . . the
benefits of such devices." She alleges that co-workers talked about
"dumb blondes and they talked about both [B]lack and Hispanic women, and
imitated them." Complainant argues that when "someone blew their nose,
they would make jokes about blow jobs," which resulted in a conversation
about "blow-up dolls."
Complainant argues that sexual jokes were told including jokes about
orgasms. Complainant testifies that on one occasion, her co-workers,
being census workers, made jokes about "premature enumeration."
This comment lead to talk about "[Bob] Dole and erectile dysfunction."
We first address complainant's sexual harassment claim. Hostile work
environment sexual harassment is actionable only if the harassment
to which complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of his employment. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). To establish
a prima facie case of hostile work environment sexual harassment, a
complainant must show that: (1) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (2) the harassment
complained of was based on sex; (3) the harassment had the purpose or
effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(4) there is a basis for imputing liability to the employer. McCleod
v. Social Security Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999)
(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
Our review of the record reveals that the AJ correctly determined that
the complained of conduct did not rise to the level of actionable sexual
harassment. First, the record is devoid of witnesses to corroborate a
sexually hostile work environment. The closest evidence of corroboration
is found in a co-worker's affidavit. He indicates that he was present
during the joke about "premature enumeration." However, following the
joke, he affirms that complainant rebutted with a joke of her own, to
which complainant admitted during the hearing. Specifically, after the
"premature enumeration" joke, complainant recounted a story about working
in a bait shop, making fishing lures, and being promoted to a "master
baiter." Most of complainant's incidents are not corroborated. However,
assuming arguendo that they were corroborated, there is no indication
in the record that such conduct was based upon her sex. Therefore, we
find that complainant has not shown, by a preponderance of the evidence
that she was subjected to a sexually hostile work environment.
With regard to the termination, we find complainant has not shown
discrimination. We will assume for this decision, without making
a finding on whether complainant is a person with a disability,
that complainant established a prima facie case of sex, disability
and retaliation. However, the agency articulated a legitimate,
non-discriminatory reason for the termination which complainant failed to
show is pretext for discrimination. Specifically, the record indicates
that complainant was terminated because she had problems processing
payroll. The Regional Director that terminated complainant reasoned
that if complainant was having a problem processing payroll at the time
of her termination, she was "probably going to have problems when [the
census office] had a larger number of employees." Complainant failed to
prove that the agency's reason was pretext for discriminatory animus.
Complainant has not shown, by a preponderance of the evidence, that
she has been discriminated against on the bases of sex, disability
or retaliation.
The agency's decision finding no discrimination 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
April 14, 2004
__________________
Date
1The AJ's September 30, 2003 decision
contained a typographical error which the AJ rectified by letter dated
November 26, 2003. The November 26, 2003 letter indicates that page seven
of the decision contained an error. Specifically, the last sentence
on page seven read "[for] the above reasons, I recommend a finding
of discrimination," but should have read "[f]or the above reasons,
I recommend a finding of no discrimination."