01a11549
09-04-2002
Leah A. Guerrero, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Leah A. Guerrero v. Department of Justice
01A11549
9/4/02
.
Leah A. Guerrero,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A11549
Agency No. I-99-W042
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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Detention Enforcement Officer at the agency's Mira Loma
Detention Facility, Lancaster, California facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on January 4,
1998, alleging that she was discriminated against on the basis of sex
(female) when, on August 20, 1998, she was subjected to unwarranted
physical advances by a third agency employee and verbal harassment by
a Supervisory Detention Enforcement Officer.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
Although the record is not entirely clear, it appears complainant
began working for the Mira Loma Detention Facility as a Detention
Enforcement Officer on April 21, 1998. At some point in July 1998,
complainant reported to training at the Glynco, Georgia facility.
Complainant could not remain a Detention Enforcement Officer unless
she successfully completed the Glynco training. On August 6, 1998,
complainant resigned from the training claiming she was suffering from
marital problems, and returned to her position at the Mira Loma Detention
Facility while she searched for another position. Complainant remained
in her position until December 15, 1998, when she accepted a Secretary
position with the agency's Los Angeles District Office.
Complainant alleged in her affidavit that although she initially stated
that she resigned from her Glynco training due to marital problems,
she really resigned on August 6, 1998 due to the sexual harassment by a
female LA County Sheriff's Office employee. Specifically, complainant
alleged that in June or July 1998, the employee from the Los Angeles
County Sheriff's Office, which was located in the same building as
complainant's facility, approached complainant and touched her vest,
and informed complainant that if there was an uprising in the facility,
complainant would be raped if she continued to wear clothes like she
was wearing that day. Complainant also alleged that on August 14, 1998,
the employee approached complainant from behind, lifted up complainant's
shirt, and said that she wanted to see the label on complainant's jeans.
Finally, on August 20, 1998, the employee approached complainant while she
was working, and touched complainant's ear with her thumb and forefinger.
In response, complainant swatted the employee's hand away and told
the employee to stop touching her. Then, complainant's supervisor, a
Supervisory Detention Enforcement Officer (SDEO-1), told the LA County
Sheriff's Office employee to leave the facility. SDEO-1 averred that at
this point, he and complainant discussed the incident, but complainant
informed him that she did not wish to pursue a complaint against the LA
County Sheriff's Office employee. According to complainant's and other
employees' testimony, another Supervisory Detention Enforcement Officer
(SDEO-2) then stated, "I don't care what you do with her, all I want to do
is watch." Furthermore, complainant alleged, and there is corroborating
evidence in the record, that SDEO-2 thereafter placed one of his fingers
on each side of his mouth and moved his tongue in and out of his mouth.
The record is in dispute as to what, if anything, complainant did
following the incident involving SDEO-2. Complainant alleged that she
informed SDEO-2 that the gesture was not funny, but others testified
that complainant stated that complainant was not upset and that she
laughed, shrugged off the comment, and may have joked about the comment
in response. SDEO-1 averred that complainant later infomed him about the
gesture, but she did not seem affected by it, nor did she ask him to do
anything about the conduct. Nonethless, SDEO-1 averred that he verbally
counseled SDEO-2 about the incident. Both complainant's second and third
line supervisors also averred that they only learned about the incident
once they were contacted by the EEO Counselor in the instant complaint.
In response, complainant's second line supervisor counseled SDEO-2 about
the gesture, but given that complainant had already left the facility
by the time they learned of the incident, they did not take any other
action against SDEO-2.
Complainant averred that on or about August 21, 1998, she was approached
by a Supervisory Detention Enforcement Officer (SDEO-3), who had learned
about the incident between complainant and the Sheriff's Office employee.
Complainant averred that she discussed the allegation, but decided not
to file a complaint against the employee. Furthermore, complainant
states that she did not raise the conduct of the SDEO-2 with SDEO-3.
The record reveals that an investigation into the LA County Sheriff's
Office employee was conducted, and the employee was instructed not to
enter complainant's facility.
Complainant also alleges that numerous inappropriate posters were placed
around the Mira Loma Detention Facility office. Specifically, complainant
alleged that a poster about breast implant litigation was placed on her
desk with the comment, "how much did you get" written on the poster.
Complainant also alleged that other inappropriate posters about Monica
Lewinsky and former President Clinton were placed in the office.
The posters are contained in the record.
In its FAD, the agency concluded that complainant failed to establish
that the LA County Sheriff Office employee's conduct rose to the level
of sexual harassment because it was not severe or pervasive conduct.
Furthermore, the agency found that once it learned of the employee's
conduct, SDEO-3 took appropriate action by notifying complainant's second
level supervisor, as well as the LA County Sheriff's Office, which
announced that an investigation was proceeding. However, the agency
also noted that complainant refused to participate in the investigation.
As for the SDEO-2's conduct, the agency found that complainant failed to
establish a prima facie case of sexual harassment because the conduct
was neither severe nor pervasive. Rather, the agency found that the
isolated comments and gestures were not the type or quality of conduct
that Title VII was meant to prevent. Furthermore, the agency noted that
the record revealed complainant was not an unwilling participant in the
sexual joking that went on in the office on occasion.
On appeal, complainant contends that the conduct was both unwelcome, as
well as severe and pervasive. The agency requests that we affirm its FAD.
The Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it
is sufficiently severe or pervasive that it results in an alteration
of the conditions of the complainant's employment. See EEOC Notice
No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3. To establish a claim of harassment a complainant
must show that: (1) she belongs to a statutorily protected class; (2)
she was subjected to unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; (4) 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 (5) there is
a basis for imputing liability to the employer. See McCleod v. Social
Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)
(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
To prevail on a claim of harassment, complainant must show that she was
subjected to an unwelcome hostile work environment because of her sex and
prior EEO activity. EEOC Policy Guidance on Current Issues of Sexual
Harassment, No. 915-050 (March 19, 1990) (1990 Guidance). In general,
unwelcome conduct is conduct that was not solicited or incited by the
complainant and that which she regarded as undesirable or offensive.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Evidence of
unwelcomeness may include whether complainant made a contemporaneous
complaint or form of protest, particularly when some prior consensual
interaction would have led the harassing party to believe that the conduct
was not unwelcome. 1990 Guidance, p. 7; see Davis v. USPS, EEOC Appeal
No. 01910648 (May 2, 1991). In addition, the Commission will consider
whether a complainant's conduct is consistent with his/her assertions,
the inquiry being whether by his/her conduct s/he indicated that the
conduct was unwelcome. 1990 Guidance, p. 9 (citing, Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986)); see also Sullivan v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01991021 (June 8, 2000).
After a review of all of complainant's allegations as a whole, we find
complainant failed to show that SDEO-2's conduct was unwelcome or that the
LA County Sheriff's Office employee's conduct was severe and pervasive.
We do note that the record reveals the conduct alleged by the LA County
Sheriff's Office employee was indeed unwelcome. Complainant made a
contemporaneous complaint to her supervisor, and voiced her objections
to the conduct. However, although complainant has established that
the conduct of this employee was unwelcome, she has not shown that
this conduct was severe and pervasive. Indeed, complainant cited only
three occasions of conduct that spanned close to three months in time.
Although she contends that the conduct was so severe that it caused her
to resign from her training in Georgia, we find insufficient evidence
to support this assertion.
As for complainant's remaining claims of conduct by the SDEO-2, we
find that complainant failed to establish that the SDEO's conduct was
unwelcome. In that regard, although it seems complainant discussed the
conduct with her supervisor, there is insufficient evidence that she
was offended by it, or objected to it. Notably, complainant does not
contend that she told SDEO-2 to stop making the statements she alleged,
nor is there evidence, other than complainant's own assertions, that
complainant seemed upset by the comment or gesture. Indeed, there was
testimony that complainant did not seem upset about the comment and
gesture that SDEO-2 made, and simply shrugged it off, and may have made
a joke about the SDEO-2's statement.
In addition, the record reveals complainant did not inform SDEO-3 about
the incident when they discussed the conduct of the LA County Sheriff's
Office employee. Further, complainant did not discuss the SDEO-2's
conduct with her second or third line supervisors.
Finally, there is evidence in the record that suggests complainant
participated in similar joking around the office. Indeed, three
individuals averred that complainant often joined in on the banter within
the office. Although occasional use of sexually explicit language does
not necessarily negate a claim that other sexual conduct was unwelcome,
here, we find that such evidence, in addition to her failure to make a
contemporaneous complaint, persuades us that complainant was not offended
by the SDEO-2's comments and gesture. In sum, we find complainant failed
to satisfy her burden of proving that the conduct of both the LA County
Sheriff's Office employee, as well as the SDEO-2 rose to the level of
actionable harassment.
Additionally, even if complainant established a prima facie case of
sexual harassment, we find that there is no basis for imputing liability
to the employer because it could only be liable if it learned of the
conduct of complainant's co-workers and failed to take any action.
See 29 C.F.R. � 1604.11(d).<1> Once complainant notified her supervisor
about the conduct, the LA County Sheriff's Office employee was instructed
not to return to the Detention Facility. Furthermore, the SDEO-2 was
counseled about the matter. Complainant did not allege that any other
harassment continued following the agency's remedial efforts. Indeed,
by the time complainant's second and third line supervisors learned of
complainant's allegations, complainant no longer worked at the facility.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and 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
9/4/02
Date
1Although complainant averred that "it appeared" as if SDEO-2 was
her second line supervisor, she does not provide any testimonial or
documentary evidence in support of this assertion.