0120071352
06-29-2007
Melanie McCarthy, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Melanie McCarthy,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120071352
Agency No. 06-00181-001
DECISION
On January 16, 2007, complainant filed an appeal from the agency's
December 14, 2006, final decision concerning her equal employment
opportunity (EEO) complaint alleging 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Systems Analyst/Programmer (Contractor) at the Naval Foundry and
Propeller Center at the Naval Shipyard Detachment, Engineering Division,
in Philadelphia, Pennsylvania. On December 21, 2005, complainant filed
an EEO complaint alleging that she was discriminated against on the basis
of sex (female) when she was sexually harassed by her co-worker (CW),
from July through October 2005. Specifically, CW made inappropriate
comments and gestures toward her.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). Therein, the agency found that complainant proved that
unlawful harassment occurred. Therefore, it analyzed whether it was
liable for coworker harassment, noting that CW had no supervisory
authority over complainant. To determine whether liability attached,
the agency made the following findings of fact: Complainant reported
CW's harassment to management on October 27, 2005, and her supervisor,
an agency representative, and a supervisor from another division met
with her to discuss the matter on October 31, 2005. On November 1,
2005, management began an internal investigation and reassigned CW
to another division. Considering the findings of their November 4,
2005 investigation regarding CW's actions, management proposed a 14 day
suspension and suspended CW, effective December 5, 2005. The agency
noted that complainant affirmed that the sexual harassment ceased.
Based upon the aforesaid facts, the agency found that management took
immediate and appropriate corrective action to end the harassment and
to prevent the misconduct from recurring. It therefore concluded that
the agency was not liable for CW's actions.
Complainant provides no statement on appeal.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999)(explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To establish a claim of harassment in this context, complainant must
show that the following five elements exist: (1) she is a member of a
statutorily protected class; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work 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); see also Flowers v. Southern Reg'l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169
(4th Cir. 2001). Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998). In a case of co-worker harassment, an
agency is responsible for acts of harassment in the workplace where the
agency (or its agents) knew or should have known of the conduct, unless
it can show that it took immediate and appropriate corrective action.
Equal Employment Opportunity Commission Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors (June 18,
1999).
The Commission finds, as did the agency, that complainant has established
that she was subjected to unlawful harassment. However, we further
determine that there is no basis for imputing liability to the agency
for CW's actions because the agency met its burden of proving it
took appropriate and prompt remedial action to address complainant's
concerns. The evidence of record establishes that upon learning of CW's
actions from complainant, management immediately began an internal
investigation, reassigned CW to a different facility, and ultimately
suspended him for 14 days. After the agency took these corrective actions,
the record reveals that the harassment ceased. Since the agency promptly
took action reasonably calculated to stop the harassment, and the
harassment ceased, there is no basis upon which to impute liability to
the employer. Based on a thorough review of the record, the Commission
affirms the agency's final order.
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
_____06/29/07_____________
Date
2
0120071352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071352