Valerie L. Shaw v. Department of the Navy 01991557 8/22/01 . Valerie L. Shaw, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 01991557 Agency No. 94-60028-003 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleged discrimination: (1) on the bases of sex (female), when she was subjected to a hostile work environment; (2) on the basis of race (Caucasian), when she was charged for child care expenses; and (3) on the basis of reprisal (prior EEO activity), when (a) her supervisor stole her timecard, wrote on it, and told everyone not to help her find it; (b) her third level supervisor accused her of padding her hours; and (c) her work hours were restricted. The record reveals that during the relevant time, complainant was employed as a Recreation Aide, at the agency's Morale, Welfare and Recreation Department, Naval Station Treasure Island, San Francisco, California facility. Complainant worked for the facility from April 1994 until her resignation in January 1995. Believing she was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint on March 7, 1995. At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested that the agency issue a final decision. In its FAD, the agency concluded that complainant alleged the following resulted in a hostile work environment because of her sex: (a) her supervisor kissed and hugged her at a Christmas party on December 23, 1994; (b) she was not scheduled to attend mandatory sexual harassment training during her employment; (c) her supervisor defamed her character when he told all the coaches and parents that she lost the soccer registrations forms; (d) her office space was a storage area exposed to hazardous materials; and (e) the standard operating procedures she developed were credited to complainant's second level supervisor. In its final decision, the agency proceeded to examine complainant's claim that her supervisor kissed her as a claim of sexual harassment, and examined her remaining claims as a claim of disparate treatment. The agency first examined complainant's disparate treatment claims, and largely found complainant failed to establish an inference of discrimination because she failed to present sufficient evidence supporting her claims, and also failed to provide any evidence that she was treated differently than similarly situated individuals not in her protected classes. The agency also articulated legitimate, nondiscriminatory reasons for its actions, which it found complainant failed to prove were a pretext for discrimination. As for complainant's claim that she was subjected to a hostile work environment, the agency found complainant's supervisor kissed her on the cheek at a Christmas party. The agency also found complainant's supervisor had previously kissed complainant upon her return from vacation in August 1994. As for the first kissing incident in August 1994, the agency found complainant did not initially complain about the first kiss to management, rather, the information was volunteered by complainant when she was asked by the Deputy Director as to whether she was familiar with any inappropriate behavior by her supervisor.<1> Complainant did not request to file a complaint at that time. In response to the August 1994 kiss, the agency found management counseled the supervisor on an informal basis during a weekly meeting. As for the second kissing incident, the agency found complainant reported the incident on January 3, 1995, and management immediately initiated an investigation. When complainant informed the agency that she wished to resign over the incident, the agency offered complainant a new chain of command, but she declined the offer. Furthermore, the agency found complainant failed to show the kiss was severe or pervasive enough to alter the terms and conditions of her employment. Furthermore, management took prompt action to remedy the situation. Complainant makes no new contentions on appeal. The agency asks that we affirm the FAD. Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission agrees with the agency that complainant failed to establish a prima facie case of discrimination on any bases because she failed to establish an inference of discrimination. In reaching this conclusion, we note that complainant presented insufficient persuasive evidence that she was denied training or that she was denied appropriate credit for work she performed. We find insufficient evidence that complainant was made to work in an unsafe workspace because of her sex. Rather, the evidence reveals the closet to which she refers was meant as a space to store athletic equipment, and she had available work space in a reception area. As for complainant's claim that she was charged child care expenses when others outside of her race were not, we agree with the agency's findings that the supervisor gave workers with more than one child a discount on the agency's child care if they were both in child care. However, the record reveals that individuals in and outside of complainant's protected class were granted the discount. Therefore, we find factors other than race contributed to the child care discount. Complainant also claimed her work hours were scrutinized and reduced because she filed a sexual harassment claim over the Christmas party kissing incident. However, the record reveals that management began to look into complainant's work hours before they learned of the Christmas party incident. As such, we find complainant failed to establish a prima facie case of retaliation because she failed to establish the requisite causal connection between an adverse action and her protected activity. The Commission further finds that complainant failed to present evidence that more likely than not, the agency's articulated reasons for its actions were a pretext for discrimination. In reaching this conclusion, we note that complainant presented insufficient evidence that any of the agency's reasons for its actions were not credible, or that complainant was treated differently because of a discriminatory motive against her race, sex, or prior protected activity. We will now turn to complainant's claim that her supervisor subjected her to a hostile work environment when he kissed her on the cheek at a Christmas party in December 1994. It is well settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). To establish a claim of sexual harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) 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; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive working environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As noted, establishment of a prima facie case requires that the alleged harassment be sufficiently severe or pervasive to alter the conditions of the victim's employment by creating a hostile, abusive working environment. Relevant factors include the frequency of the alleged 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. "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). Although the record reveals complainant was disturbed by the kiss at the Christmas party, we do not find that objectively, this conduct was severe or pervasive enough to satisfy the standard. Complainant presented her supervisor with a Christmas card just prior to the kiss, and in response, her supervisor kissed her on the cheek and thanked her for her work during the year. After a careful review of the record, including the evidence that the supervisor kissed complainant on the cheek four months prior without complaint, we do not agree with complainant's claim that she was subjected to a hostile work environment. Therefore, after a careful review of the record, including arguments and evidence not specifically addressed in this decision, we AFFIRM the FAD. 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 8/22/01 Date 1 Complainant informed management about the August 1994 kiss while she was disclosing that the supervisor failed to act on a complaint brought forward by a parent.