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.