01993047
11-02-2001
Brenda D. Steed, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Brenda D. Steed v. Department of the Army
01993047
11-02-01
.
Brenda D. Steed,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01993047
Agency No. AOEWFO9710H0710
DECISION
INTRODUCTION
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.
ISSUE PRESENTED
The issue presented herein is whether complainant has shown by a
preponderance of the evidence that she was subjected to harassment by
her supervisor, the Acting Branch Chief (Chief), on the bases of race
(White) and/or sex (female).
BACKGROUND
The record reveals that from May 27, 1997 through September 26, 1997,
complainant was employed as a temporary Office Automation Clerk at the
agency's facility at Fort Shafter, Hawaii. Complainant alleged that
the following events occurred:
on July 23, 1997, during a conversation about children and marriage,
the Chief told her �what you need is a good man;�
on July 25, 1997, after she was moving furniture around and she had
perspired, the Chief called her �hot� in a tone which insinuated that
she was a �hot babe or something;�
on July 30, 1997, the Chief made a comment that a plastic he had in
his hand would make a good prophylactic;
on July 31, 1997, the Chief was in a grumpy mood and said that he was
acting �just like a woman, don't they get grumpy once a month;�
on August 5, 1997, complainant states that while discussing font sizes
for a project she was working on, the Chief looked down at himself and
said �I don't know, is it big or small;�
on August 7, 1997, the Chief allegedly asked complainant if she watched
the Playboy channel and told her that �White women like it from the
back;�
on August 8, 1997, the Chief made a squeezing motion with both his
hands when they were in front of her breast;
on August 11, 1997, the Chief told complainant that her back side
was fat;
on August 13, 1997, the Chief made a comment to complainant insinuating
that she masturbated every night;
on August 20, 1997, the Chief stated that he needed to get his eyes
checked so that he would be �able to see up [complainant's] skirt
better.� At that point, complainant told him that this was the reason
she wore long skirts; and
on August 27, 1997, the Chief told her that he �still could get a
�hard on.'�
By letter dated September 1, 1997, complainant contacted a Major (the
Major) informing him of unwanted sexual remarks which were allegedly
made by the Chief. On September 5, 1997, the Acting Commander appointed
someone to conduct an inquiry into the matter. On October 17, 1997,
based on the inquiry's findings, the Acting Commander counseled the Chief
on the agency's sexual harassment policy. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on November 20, 1997. 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 failed to establish
her claim of harassment based on sex and/or race. In particular,
the agency found that complainant had not met her prima facie case of
race discrimination in that she failed to demonstrate that the alleged
harassment occurred because of her race. As to her claim of sexual
harassment, the agency found that complainant was not subjected to
unwelcome sexual conduct. Furthermore, the agency held that, assuming
complainant established her prima facie case, it articulated legitimate,
nondiscriminatory reasons. The agency stated that the Supervisor stopped
making comments which he did not feel were offensive when he became aware
that complainant took offense to his comments. Accordingly, the agency
issued its decision finding that complainant had not been subjected to
harassment based on sex and/or race.
On appeal, complainant contends that the Supervisor's comments would have
been offensive to the �reasonable person� and that she perceived it to
be a hostile work environment. Therefore, she argues that the agency
has violated Title VII and the agency's decision should be reversed.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's race and
sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under those bases,
the complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related to
her membership in those classes; (3) the harassment complained of was
based on sex and/or race; (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 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).
Race-Based Harassment
Upon review, the Commission finds that complainant failed to establish a
claim of harassment based on race. Only one incident which she raised
made any reference to her race. Therefore, we find that complainant
failed to establish that the alleged harassment was based on race.
Sexual Harassment
Upon review of the record, we find that complainant has established
her claim of sexual harassment. The record clearly indicates that
complainant satisfied parts (1) through (3) of a claim of harassment.
Complainant is a member of a statutorily protected class, the alleged
conduct was unwelcomed, and the harassment complained of was based upon
her sex. As to part (4), the Commission concludes that the incidents
created an intimidating, hostile, and offensive work environment.
In particular, we find that complainant has shown that the Chief made
sexually graphic comments at her from July 23, 1997 through August
27, 1997. The Commission finds that the aforementioned actions, when
considered in their entirety, constitute a hostile work environment.
Finally, as to the part (5) of a claim, we find that complainant has met
her burden in that the acts were committed by complainant's supervisor,
the Chief. An employer is subject to vicarious liability for unlawful
harassment if the harassment was "created by a supervisor with immediate
. . . authority over the [complainant]." Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002
(June 18, 1999) ("Vicarious Liability Guidance"), at 4 (citing Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93
(1998)). Accordingly, the Commission concludes that complainant has
met her burden of establishing a claim of sex-based harassment.
However, where, as here, the harassment does not result in a tangible
employment action being taken against the employee, the agency can
make out an affirmative defense by demonstrating: (a) that it exercised
reasonable care to prevent and correct promptly any harassing behavior;
and (b) that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to
avoid harm otherwise. See Burlington Industries, supra; Faragher, supra;
Vicarious Liability Guidance, at 12. Whether an employer can prove the
first prong of that defense, i.e., that it exercised reasonable care
to prevent and correct promptly any harassing behavior, depends on the
circumstances of the particular situation. Vicarious Liability Guidance,
at 15.
At a minimum, however, the employer must have a policy and complaint
procedure against the harassment that contains the following elements: (1)
a clear explanation of what constitutes prohibited conduct; (2) assurances
that employees who bring complaints of harassment or provide information
related to such complaints will be protected against retaliation;
(3) a clearly described complaint process that provides possible
avenues of complaint; (4) assurance that the employer will protect
the confidentiality of harassment complaints to the extent possible;
(5) a complaint process that provides a prompt, thorough, and impartial
investigation; and (6) assurance that the employer will take immediate
and appropriate corrective action when it determines that harassment
has occurred. Id. at 17.
Based on the Commission's review of the record, it is not apparent that,
at the time of the harassment, the agency had a policy and complaint
procedure in place which contained these elements. The record contains
a memorandum, dated January 17, 1997, regarding EEO, affirmative action,
and civilian sexual harassment programs. Report of Investigation (ROI),
at 117. We, however, find that it sets forth only an extremely general
statement on sexual harassment and does not contain the aforementioned
elements. The record also indicates that the agency failed to provide
its employees with a clear explanation of what constitutes prohibited
conduct. Although the agency held a training session entitled Prevention
of Sexual Harassment (POSH), it did not provide any information as to
content of this training. Fact Finding Conference, at 114. Therefore,
it is not apparent from the record that this training contained any of
the aforementioned elements.
Furthermore, the agency harassment policy and procedure also failed to
set forth a clearly described complaint process that provides possible
avenues of complaint. In addition to the general statement on sexual
harassment, it appears that the agency failed to provide information
regarding the harassment complaint process. The record indicates that
the agency's bulletin boards were not kept up-to-date at the time of
the harassment. Id. at 236. The Chief also averred that there was no
information posted on the bulletin boards regarding reporting harassment
complaints let alone to the chain of command. Id. at 114.
The Commission also notes that a great deal of testimony at the Fact
Finding Conference focused on whether the agency had EEO information
posted. The first prong generally requires the agency to establish,
disseminate, and enforce an anti-harassment policy and complaint
procedure, above and beyond the EEO process enunciated in 29 C.F.R. Part
1614. See Vicarious Liability Guidance at 15-28. Therefore, we find that
the agency's posting of the EEO process would not have been sufficient
enough to establish the first prong of its affirmative defense.
Based on the Commission's finding that the agency has not satisfied
the first prong, we conclude that it is liable for the harassment of
complainant that occurred and reverses the agency's determination of no
discrimination as to complainant's claim of sexual harassment.
CONCLUSION
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 REVERSE the FAD.
ORDER
The agency is ordered to take the following remedial action.
(1) The agency shall provide training for the Chief addressing his
responsibilities with respect to eliminating discrimination in the
workplace with an emphasis on sexual harassment.
The agency shall consider taking disciplinary action against the Chief who
has been identified as being responsible for the discriminatory harassment
perpetrated against complainant. The agency shall report its decision.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice as to her claim for
compensatory damages. Complainant shall submit objective evidence
(pursuant to the guidance given in Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for
compensatory damages within forty-five (45) calendar days of the date
complainant receives the agency's notice. The agency shall complete the
investigation on the claim for compensatory damages within forty-five
(45) calendar days of the date the agency receives complainant's claim
for compensatory damages. Thereafter, the agency shall process the
claim in accordance with 29 C.F.R. � 1614.108(f).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its facility at Fort Shafter, Hawaii,
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
___11-02-01_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found
that a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Department of the Army, Fort Shafter, Hawaii, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of the Army, Fort Shafter, Hawaii, has been ordered
to remedy an employee affected by the Commission's finding that she
was subjected to a hostile work environment based upon her sex. As a
remedy for the discrimination, the Department of the Army, Fort Shafter,
Hawaii, was ordered to provide training to and consider discipline
for the agency official found to have harassed the affected employee.
The Department of the Army, Fort Shafter, Hawaii was also ordered to
determine if the affected employee is entitled to compensatory damages
and to ensure that harassment will not occur again. The Department of
the Army, Fort Shafter, Hawaii, will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Department of the Army, Fort Shafter, Hawaii, will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614