0120123332
09-10-2014
Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120123332
Hearing No. 420-2012-00106X
Agency No. 8I1M11013
DECISION
Complainant timely filed an appeal from the Agency's July 23, 2012, final order concerning his 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued summary judgment in favor of the Agency, and whether the AJ properly found that Complainant failed to prove that the Agency should be liable for harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-9 Security Specialist at Eglin Air Force Base in Florida. Complainant worked in the 96th Air Base Wing (ABW) in the Information Protection (IP) Division. Complainant's first-line supervisor was the Director of IP (S1), and his second-line supervisor was the Vice Commander (S2).
On May 19, 2011, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to harassment on the bases of race (African-American), national origin (American), and color (black) when:
1. On or about December 15, 2010, a coworker (C1) used foul, offensive, and explicit language against him; and
2. On March 31, 2011, C1 addressed him using derogatory terms.
Procedural History
On March 31, 2011, Complainant contacted an EEO Counselor with regard to his claim that he was being subjected to racial harassment. He subsequently filed the formal EEO complaint referenced above.
The complaint was investigated and, thereafter, Complainant requested a hearing before an EEOC AJ. On May 1, 2012, the AJ issued a Notice of Intent to Issue a Decision without a Hearing, to which both parties responded. Both parties replied thereto.
In his May 16, 2012, response to the AJ's Notice, Complainant, apart from arguing his harassment claim, specifically raised the issue of constructive discharge, reiterating the racially-charged nature of the harassment he experienced. The Agency argued that Complainant had not brought the claim regarding constructive discharge to the attention of an EEO Counselor within 45 days of its occurrence.
On June 13, 2012, the AJ issued summary judgment in favor of the Agency. Specifically, the AJ dismissed claim 1 on the basis that it was initiated by untimely EEO Counselor contact. Regarding claim 2, the AJ further found that the evidence did not show a basis for imputing liability to the Agency because the record did not reflect that there were further acts of harassment after the Agency counseled C1 on April 5, 2011. In a footnote, the AJ summarily stated that Complainant's resignation had been "voluntary," and had not been brought to the attention of an EEO Counselor within 45 days of its occurrence. The Agency subsequently issued a final order fully adopting the AJ's findings.
Results of Investigation
The record reflects the following: In an investigative statement, Complainant stated that, on December 15, 2010, he was showing a coworker intern (intern) how to perform a certain task when C1 entered the room and began yelling and calling him names. He stated that C1 said, "You leave her the fuck alone;" "You don't run shit here;" "You motherfucker;" and "You do what the hell I tell you." Complainant stated that he turned and walked away, but the intern told him that C1 called him "the n-word." Complainant stated that he was the only African American person in the department, and C1 did not harass other employees in the same manner she harassed him.
Complainant further stated that C1 made racial jokes in the office, and that S1 was aware of C1's racial slurs but took no action to stop C1. Complainant stated that he reported the December 2010 incident wherein C1 used foul and explicit language to S1, but S1 only responded that Complainant could not assign work to employees. Complainant stated that other employees reported C1's use of foul and explicit language to S1, but S1 took no action against C1.
Complainant also stated that, on March 31, 2011, C1 told a group of employees to "shut the hell up and be quiet" during lunch. Complainant stated that C1 then indicated to S1 that she wanted to talk to him and went to another location to talk with S1. Complainant stated that C1 later told him that she was going to have him "chained to his chair." Complainant stated that later that day, while eating soup at his desk, C1 stated in a loud voice, "Stop slurping you fucking pig," and then repeated this comment in a louder voice. Complainant stated that immediately he reported C1's comments to S1, and S1 said that he knew C1 was out of control. Complainant stated that, about two hours later, he had a meeting with S1 and C1, and in the meeting, C1 said that she did not mean anything racial when she said she would chain him to the chair. Complainant stated that S1 said that everyone needed to stop using profanity, and Complainant told S1 that he did not like being called a "fucking pig." Complainant stated that C1 then stood up, said she was done, and walked out of the meeting.
The record reflects that, subsequently, on April 5, 2011, S1 issued C1 a "Non-Disciplinary Letter of Counseling." The letter described the basis for counseling as follows:
On Thursday, 31 March 2011, you and [Complainant] got into an argument while at the Information Protection (IP) customer service counter, which encompasses both your offices, in Building 1, Room 14. Other IP employees were nearby and heard the dispute. This is not the sort of image we want to project to our customers. The language you used was offensive and wrong, and I will not tolerate this type of outburst. Employees openly bickering amongst themselves, regardless of whether there are customers present, will not be tolerated. If you have a problem with a coworker, bring the matter to me and I will do what I can to resolve it. If there are any further incidents, I may consider taking disciplinary action against you.
The letter did not specify the language used by C1, made no mention of C1's other conduct of a similar nature, nor did it reflect that C1 was the instigator of the incident.
Subsequent to C1 receiving the Non-Disciplinary Letter of Counseling, on May 9, 2011, Complainant submitted his resignation, effective May 16, 2011. Complainant noted that he was "resign[ing] under protest." Also, while the Standard Form (SF) 50 that would have been generated for Complainant's separation does not appear in the record, a copy of the SF-52 Request for Personnel Action quotes as the reason for Complainant's resignation the same notation as his letter of resignation, that he "resign[s] under protest." We note that the SF-52 contains no remarks by the requesting office, nor does it indicate a reply to the yes/no query as to whether the supervisor is aware of additional or conflicting reasons for the resignation.1 A May 9, 2011, e-mail message sent by Complainant to his coworkers stated, in relevant part, "I had always wanted to work 15-20 years as a DOD Civilian employee but now must move on to new horizons and even more challenges."
The Director (Caucasian) stated that five employees informed him that they had complained to S1 about C1, but no action was taken. The Director stated that the employees reported the "situation about Complainant" and reiterated their comments in written statements. The Director further stated that the climate survey revealed that there were problems with C1 and S1, and after reviewing employees' written statements, S2 issued C1 a letter of reprimand. The record reflects that the reprimand was proposed on May 16, 2011, and was issued on July 5, 2011.
The Director further stated that he reassigned C1 to the 46th Maintenance Group. The Director also stated that it appeared that the situation with C1 had been going on for a long time, and S1 said that he had received complaints about C1 before the Director arrived in the division on June 5, 2011.
S1 stated that Complainant did not complain or report the harassing incidents to him that occurred in December 2010 or March 2011, and he did not become aware of the December 2010 incident until he received notice of this EEO complaint. S1 stated that he was at the March 31, 2011, lunch wherein C1 was trying to conduct business with a customer on a telephone and told the group to "shut the hell up." S1 stated that he informed the group to be quiet, turned off the television, and employees went back to their work stations.
S1 further stated that he issued C1 a non-disciplinary letter of counseling in April 2011 because of the March 31, 2011, incident involving Complainant. S1 also stated that eight employees in the work unit initiated a meeting with him to discuss C1's behavior on April 5, 2011. S1 stated that he met with S2 about C1, and in April 2011, he and S2 discussed C1's attitude and language. He stated that S2 issued C1 a letter of reprimand in July 2011 because of her language. S1 stated that he believed that C1 changed her behavior. S1 stated that he did not endorse C1's reassignment in September 2011.
A Caucasian coworker (C2) stated that C1 commonly referred to Complainant and other African Americans as "niggers," and opined that C1's dislike for Complainant's race, color, and national origin motivated her mistreatment of him. Regarding the December 2010 incident, C2 stated that C1 was upset with Complainant for training an office intern on the use of a facility card-key issuing system. He stated that he could not recall exactly what C1 told Complainant but she routinely used the phrases "You don't run shit here;" You mother fucker;" and "You do what the hell that I tell you." C2 stated that S1 had placed C1 in charge of the office on that date because S1 was absent.
Regarding the March 2011 incident, C2 stated that C1 was agitated because several office personnel talked and laughed near her cubicle during lunch. He stated that C1 told S1 to "tell those fucking assholes to shut the fuck up." C2 stated that he talked with S1 many times about C1's behavior and complained about S1's use of racial slurs such as "nigger," "chink," and "spic." C2 stated that he has complained that C1 routinely refers to S1 as "spick," "bean boy," and "beaner" in the presence of others. C2 stated that S1 did not seem to be offended by C1's behavior and therefore dismissed it.
C2 stated that he has heard C1 use "the n-word" many times, and she routinely referred to Complainant and other African Americans as "niggers." C2 stated that he reported to S1 that C1 referred to African Americans as "niggers," but S1 told him to learn how to be professional, get along with C1, and even threatened to remove him from his position when he complained about C1. He stated that he believed that S1 was responsible for allowing C1's behavior to continue and escalate.
Another Caucasian coworker (C3) stated that in the winter of 2010, he heard C1 call an African American employee (C5) a "lazy ass nigger." C3 stated that he discussed C1's unprofessional behavior with S1 but there were no changes. He stated that, in April 2011, he sent a letter to S2 with details about C1's behavior, and he believed that S1 would retaliate against him for providing a statement to S2.
Another Caucasian coworker (C4) stated that he heard C1 use the term "nigger" on several occasions and heard C1 refer to Complainant as "nigger," although she uses the term in reference to African Americans in general. C4 further stated that she witnessed C1 tell Complainant "Leave her the fuck alone;" "You don't run shit here;" "You mother fucker;" and "You will do what the hell that I tell you."
C4 further stated that when he was hired in January 2009, S1 warned him that C1 sometimes used strong language. He stated that on April 4, 2011, office employees met with S1 to voice their continued frustrations with the situation concerning C1 because, in the past, nothing was done when employees reported her behavior. C4 stated that although C1 is rude and disrespectful to almost everyone, she has a particular dislike for African-Americans and Asians. He stated that C1 was allowed to say whatever she wanted, with little or no recourse for coworkers.
An African-American contractor (contractor) stated that, on March 31, 2011, he talked with Complainant as he ate his lunch at his desk. The Contractor further stated that C1 then told Complainant to "Stop slurping that soup, you fucking pig," and Complainant reported the incident to S1. The contractor stated that he heard C1 use "the n-word," although it was not directed toward him. The contractor also stated that he heard C1 tell Complainant that she was going to chain him to a chair on the same day she made the slurping comment. He stated that he reported C1's behavior to S1 on two occasions.
Another Caucasian coworker (C6) stated that C1 made comments that African-Americans are lazy, worthless, and have no work ethic. C6 stated that C1 has referred to Complainant as a "worthless nigger," and C6 reported the comments to S1 on numerous occasions. C6 further stated that S1 took no action and referred to C1 as a "work in progress." C6 also stated that C1 made racial remarks in the presence of S1, and S1 would laugh in response.
C6 further stated that after the lunch incident on March 31, 2011, C1 told him that Complainant was a "nigger." C6 stated that C1 hates people, especially African-Americans. C6 stated that he believed that Complainant's race, color, and national origin motivated the harassment.
Another Caucasian coworker (C7) stated that he heard C1 use racial slurs, and on one occasion, she called Complainant an "ignorant nigger." C7 also stated that he had two or three discussions with S1 about C1's behavior. He stated that S1 responded that C1 was harmless and said, "I just let her get it out of her system, she means nothing by it." Investigative File (IF), p. 199. C7 further stated that other employees said that they complained to S1, but C1's behavior never changed. C7 stated that S1 told people complaining about C1 to adjust their behavior to get along with C1. C7 further stated the following:
I know [Complainant] made numerous complaints to [S1] about [C1], and [S1] simply tried to gloss it over with [C1]. But [Complainant] wouldn't accept that. [C1] treated [Complainant] like crap, and I applaud him for standing up for himself.
IF, p. 201.
The record also contains an unsworn memorandum from the intern, who is African-American. In the memorandum, the intern stated that in December 2010, Complainant assisted her with preparing access badges for building staff. The intern further stated that when C1 learned that Complainant was assisting her, she became agitated, confronted Complainant, shouted at him, and told him that the intern would not be his "flunky." The intern also stated that C1 told employees that she hated Complainant and regularly called him names such as "nigger," "idiot," "ass," "stupid," and "fat." "She made no attempt to lower her voice while insulting him," the intern stated. IF, p. 192.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his claims of discriminatory harassment and constructive discharge. Complainant contends that the AJ erred when he issued summary judgment in favor of the Agency. Complainant argues that the evidence in this case clearly establishes that he was regularly and continuously singled out by C1 for abusive, offensive, and racially-charged harassment, and that S1 condoned C1's actions. Complainant further contends that the AJ erred in finding that the Agency was not liable for C1's actions because it took prompt and effective corrective actions. Complainant argues that the non-disciplinary action to C1 on April 5, 2011, was ineffective because Complainant still had to work in the same area as C1.
The Agency argues that Complainant failed to make timely contact with an EEO Counselor for the December 15, 2010, incident. The Agency further argues that Complainant has not shown that it should be liable for the harassing actions of C1 because the Agency took corrective steps to address the harassment after it learned about C1's actions. The Agency maintains that it did not learn about C1's conduct until Complainant reported her actions on March 31, 2011, and the Agency promptly and responded by issuing C1 a letter of counseling just five days after the incident.
The Agency further maintains that Complainant did not report that C1 had used the term "nigger" until coworkers submitted statements on April 14, 2011. The Agency maintains that it issued a notice of reprimand to C1 on July 5, 2011, in response. The Agency further maintains that management conducted a climate assessment in July and August 2011, and C1 was reassigned to work personnel security because the survey revealed that problems still existed in ABW/IP because of C1's conduct. The Agency maintains that it took prompt and effective actions to address the reported harassment. The Agency disputes that Complainant at any time amended his complaint to include constructive discharge.
ANALYSIS AND FINDINGS
Decision without a Hearing
We first must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
As discussed further below, we find that the issuance of a decision without a hearing was appropriate, given the uncontested evidence of record. However, we find that the AJ erred when he found in favor of the Agency rather than Complainant. The record establishes that Complainant was subjected to racially discriminatory harassment for a period of at least six months, during which time the Agency was aware of the harassment but took no remedial action until Complainant after initiated contact with an EEO Counselor. Because the uncontested evidence of record both establishes Complainant's claim, and fails to establish the Agency's affirmative defense, Complainant is entitled to a finding in his favor.
Untimely EEO Counselor Contact
The AJ dismissed incident 1 on the basis that it was initiated by untimely EEO Counselor contact. Upon review, we note that both incidents in Complainant's complaint allege interrelated and similar incidents of harassment by the same individual during a relatively short period of time. We find that Complainant's complaint consists of single claim of harassment, not two independent claims. As such, we conclude that the Agency and AJ improperly fragmented Complainant's complaint into two separate claims. See Wilson v. U.S. Postal Serv., EEOC Appeal No. 0120121228 (July 17, 2013); Meaney v. Department of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994).
Moreover, we note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within me filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 1 536 U.S. 101 (2002). 2 In this case, Complainant initiated EEO Counselor contact on March 31, 2011, the same day of the events in incident 2. Therefore, we find that Complainant's entire complaint was initiated by timely EEO Counselor contact. Consequently, we find that the AJ improperly dismissed incident 1 on the basis that it was initiated by untimely EEO Counselor contact. Because claim 1 was thoroughly investigated along with claim 2, we will review the merits of Complainant's claim of harassment.
Hostile Work Environment
Complainant alleged that he was subjected to unlawful harassment on the bases of race, color, and national origin when in December 2010 and March 2011, he was subjected to insulting comments from C1. To establish a claim of harassment, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct; (3) the harassment complained of was based on his 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).
The AJ's decision addressed only the question of imputing liability to the Agency, the last prong of the harassment analysis. We will address each prong of the harassment analysis. Regarding the first prong, the record reveals that Complainant is an African-American who identifies his color as black. Therefore, Complainant is a member of statutorily protected classes. Regarding the second prong, Complainant and multiple witnesses stated that C1 called him "nigger," "worthless nigger," and "ignorant nigger" in the workplace. We note that the Agency issued a formal reprimand to C1 based on its conclusion that, between January 2011 and March 2011, C1 called Complainant a "nigger" in the presence of C6. The reprimand also stated that in a meeting with management on April 15, 2011, C1 commented on her use of the word "nigger."3 Additionally, the reprimand noted that several employees submitted statements in early April 2011 that reported that C1 used racial or ethnic slurs such as "nigger," "chink," and "spic" to refer to other employees and their spouses. Consequently, we conclude that the Agency clearly acknowledges that C1 subjected Complainant to unwelcome conduct.
Regarding the third prong, the record reflects that C1 openly called and referred to Complainant as a "nigger," "worthless nigger," and "ignorant nigger." Additionally, witnesses stated that C1 often targeted Complainant with various other verbal insults and attacks, especially disliked African-Americans, called other African-Americans "niggers," and openly used racial epithets against Hispanics and Asians. We note that the Commission has held that the use of the word "nigger" is a "highly charged epithet" that reflects animus against African-Americans and "dredges up the entire history of racial discrimination in this country." See EEOC Compliance Manual, Section 15, "Race and Color Discrimination," No. 915.003, 15-38 (Apr. 19, 2006); Brooks v. Dep't of the Navy, EEOC Request No. 05950494 (June 25, 1996).
Moreover, insults such as a "fucking pig," "idiot," and "stupid" cannot be divorced from C1's common use of racial epithets and insults against Complainant and others. Instead, they are a part of C1's attempt to demean Complainant as inferior because of his race. See Almon v. U.S. Postal Serv., EEOC Appeal No. 0720090023 (Feb. 9, 2011) (referring to African-American employee as a "monkey" derived from a long history of portraying African-Americans as subhuman or inferior). Additionally, in this context, C1's threat to chain Complainant to a chair also reflects racist animus against him. Thus, it is clear that C1 targeted Complainant because he is African-American.
Regarding prong 4, we note that C1's conduct was extremely insulting, threatening, and dehumanizing. C1's conduct is especially serious in light of the fact that she sometimes served as Complainant's team leader or acting supervisor. Consequently, we find that C1's conduct was sufficiently severe to create a hostile work environment. See Frank v. U.S. Postal Serv., EEOC Appeal No. 0120110221 (Jan. 31, 2013) (single instance of using "nigger" in workplace sufficiently severe to create a hostile work environment); King v. Dep't of Justice, EEOC Appeal No. 0120093395 (Nov. 24, 2009) (referring to Complainant as a "lazy nigger" and "lazy" sufficiently severe to create hostile work environment based on race); Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (while there is no magic number of slurs that indicate a hostile work environment, an unambiguously racial epithet falls on the "more severe" end of the spectrum).
Liability
Because Complainant has established that he was subjected to racial harassment, we must finally examine whether Agency is liable for the harassing actions. This is a case of coworker harassment,4 and in the case of coworker 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 be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).
In this case, S1 claims that he did not know about the racial harassment by C1 until after Complainant initiated EEO Counselor contact on March 31, 2011, and employees submitted written statements to management in April 2011. The AJ held that the Agency should not be held liable for C1's actions because no further acts of harassment occurred after Complainant's March 31, 2011, EEO Counselor contact.
However, it is undisputed that C1 often openly hurled racial slurs at Complainant and other employees as early as the winter of 2010. In fact, at least six coworkers stated that they witnessed C1 call Complainant and others racial slurs in the office for a significant period of time before Complainant initiated EEO counseling. The Agency cannot avoid liability for coworker harassment simply because it adopted a "see no evil, hear no evil" response. See Ocheltree v. Scollon Productions, Inc., 335 F. 3d 323 (4th Cir. 2003) (en banc). We find that the harassment was so pervasive and widespread that the Agency had constructive knowledge of the harassment well before S1 contends that he acquired actual knowledge. See Gillespie v. Dep't of the Army, EEOC Appeal No. 0120080758 (May 25, 2012) (agency had constructive notice of harassment when various witnesses testified that harassing conduct was frequent); Mayer v. Dep't of Homeland Security, EEOC Appeal No. 0120071846 (May 15, 2009) (agency had constructive knowledge of sexual harassment where several incidents of harassment occurred in front of co-workers); Sharp v. City of Houston, 164 F. 3d 923 (5th Cir. 1999) (if harassment complained of is so open and pervasive that employer should have known of it had it opened its eyes, there is constructive notice).
The Agency maintains that it took immediate and appropriate corrective action after S1 learned of the racial harassment, following Complainant's contact with an EEO Counselor. The record reveals that on April 5, 2011, the Agency issued C1 a non-disciplinary letter of counseling that generally noted that C1 used "offensive" language on March 31, 2011, but did not address her use of racial slurs.5 The Agency also issued C1 notice of proposed reprimand on May 16, 2011, after Complainant resigned "under protest" from the Agency in a letter dated May 9, 2011. Moreover, the Agency did not actually reprimand C1 until July 5, 2011, and did not reassign C1 to another division until August/September 2011. The Agency took no action to end the harassment until well after the fact, and then only in response to Complainant's EEO complaint. For Complainant, the Agency's response was simply too little, too late.
Additionally, we note that there is no evidence that C1 or employees received any anti-harassment training during the relevant time period, despite the open and widespread nature of the harassment in this case. We note that even the Director acknowledged that, although the harassment had been occurring for "a long time," multiple employees reported that S1 took no action about the matter and protected C1 from consequences. IF, p. 195. We are persuaded that the Agency's inadequate response to C1's racially-harassing conduct emboldened her to escalate her attacks on Complainant. In essence, the Agency's failure to properly discipline C1 conveyed the message that she could disrespect, intimidate, and harass Complainant with impunity, which she did. See Bryant v. Dep't of the Interior, EEOC Appeal No. 0120091468 (Aug. 31, 2012). Likewise, the Agency's failure to promptly and effectively address C1's harassment of Complainant communicated to employees that the Agency did not take racial harassment seriously. Thus, we find that the Agency's response to the harassment was woefully inadequate.
Constructive Discharge
Finally, we note Complainant's assertion that the racial harassment culminated in his involuntary resignation from employment, i.e., constructive discharge. Notwithstanding the Agency's argument on appeal, it is clear from the record that Complainant did raise a claim of constructive discharge while the case was pending before the AJ, in his reply to the AJ's Notice of Intent to Issue a Decision without a Hearing.
We note that a complainant may amend a complaint at any time prior to the Agency issuing the notice of the right to request a hearing. EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 5, Sec. III.B. Where the claim sought to be added is "like or related to"6 claims already pending, the complainant is not required to first seek EEO counseling. If the complaint is already before AJ, the complainant may move to amend the complaint which, as with the conduct of the hearing generally, is a matter within the AJ's discretion. See 29 C.F.R. Sec. 1614.109.
Here, the AJ did not address Complainant's attempt to amend his complaint to include constructive discharge. Rather, the AJ summarily, and despite record evidence supporting the claim, characterized Complainant's resignation as "voluntary" before noting that Complainant had not contacted an EEO Counselor within 45 days of his resignation, which Complainant was not required to do. We find the AJ's determination on this point to be reversible error, and conclude that Complainant's complaint properly includes a claim of constructive discharge.
While a constructive discharge claim ordinarily would be referred to the Merit Systems Protection Board (MSPB), the Commission properly may assume initial jurisdiction of a constructive discharge issue (i.e., an adverse action which is properly within the jurisdiction of the MSPB) when, for example, the allegation is so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. E.g., Cullors v. Dep't of Defense, EEOC Appeal No. 01A41560 (June 27, 2006).
In the instant case, where Complainant has proved his claim of discriminatory harassment, which he alleges culminated in his forced resignation, and both the Agency and the AJ failed to recognize the significance of this allegation, we find the constructive discharge claim to be so firmly enmeshed in the EEO process that it would, in fact, unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. Accordingly, we rule on the constructive discharge claim herein.
In order to prove constructive discharge, a complainant must show that: (1) a reasonable person in his position would have found the working conditions intolerable; (2) the conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990). In this case, we have already determined that Complainant was subjected to discriminatory harassment sufficiently severe and sufficiently pervasive to alter the conditions of his employment. We further find that a reasonable person in Complainant's position would have found such working conditions intolerable. Finally, we find that Complainant's resignation resulted from these intolerable working conditions, and therefore was involuntary, i.e., that Complainant was constructively discharged by the Agency.
CONCLUSION
In summary, we find that Complainant was subjected to harassment based on his race and color, which culminated in his constructive discharge. We further find that the Agency did not establish the affirmative defense of immediate and appropriate remedial action, and that the AJ therefore erred when he found that the Agency was not liable for the harassment.
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission REVERSES the Agency's final order. We REMAND this matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to undertake the following remedial relief which, unless otherwise specified, shall be provided with one hundred twenty (120) days of the date on which this decision becomes final:
1. The Agency shall offer Complainant reinstatement to the position of Security Specialist that he previously held, or a substantially equivalent position, retroactive to the effective date of his resignation in 2011. The Agency shall allow Complainant thirty (30) days to respond to the offer of reinstatement and, if Complainant accepts the Agency's offer, he shall be afforded up to sixty (60) days to re-enter on duty with the Agency. This reinstatement shall presume all promotions and monetary remuneration attached to the position. If Complainant declines the Agency's offer of reinstatement, the date of his declination shall be the end date for any back pay due Complainant.
2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, from the date Complainant ceased receiving pay from the Agency until the date he is reinstated, or until such date as he declines reinstatement. The Agency shall calculate these amounts with appropriate offsets to account for any interim earnings. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. If Complainant accepts the offer of reinstatement, he shall not be reinstated to a position within the chain of command of S1 or S2.
4. If Complainant accepts the offer of reinstatement, he shall not be under the supervision, direction, or team leadership of C1.
5. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from complainant in support of her request for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. No later than one-hundred and twenty (120) calendar days after the date that this decision becomes final, the Agency shall issue a final agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
6. The Agency shall provide training to all management officials in the Information Protection (IP) Division at Eglin Air Force Base, regarding their responsibilities with respect to Title VII, with special emphasis on preventing and responding to harassment and EEO anti-retaliation provisions.
7. The Agency shall provide training to all non-management employees in the Information Protection Division at Eglin Air Force Base regarding Title VII, with special emphasis on its harassment and EEO anti-retaliation provisions.
8. The Agency shall provide training to S1 and C1 regarding Title VII, with special emphasis on its harassment provisions.
9. The Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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. If S1 has left the agency's employ, the Agency shall furnish documentation of his departure date.
10. The Agency shall consider taking appropriate disciplinary action against C1, beyond the Letter of Reprimand already issued to her.7 The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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. If C1 has left the agency's employ, the Agency shall furnish documentation of her departure date.
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 of the Agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post in the Information Protection (IP) Division at Eglin Air Force Base 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 10, 2014
Date
1 We note that, although Complainant "resign[ed] under protest" shortly before contacting the EEO Counselor and well before filing his formal complaint, constructive discharge was not identified as a claim for investigation. We further note that, in a December 3, 2011, declaration, the Investigator assigned to Complainant's case stated that, when she contacted the EEO Office to clarify whether Complainant's complaint included constructive discharge, she was told that it did not. There is no indication that the Investigator, or anyone else involved in the processing of the complaint, inquired of Complainant whether he understood that constructive discharge would ordinarily be raised as a claim separate from harassment.
2 The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. This case does not involve such discrete acts being raised in an untimely fashion.
3 The reprimand does not explicate C1's comments, nor do her comments appear elsewhere in the record.
4 Although the record reflects that C1 occasionally served as an acting supervisor, we need not reach the question of whether the Agency should be held to have had constructive knowledge of the harassment through her. See the discussion of constructive notice in the text, infra.
5 We note that the text of the letter, set out in full in the "Background" section, essentially counsels C1 for "arguing" with Complainant on March 31, 2011. It makes no mention of the racial slurs used by C1, referring only to "offensive language." Neither does it note that C1 was the instigator of the incident. It also omits any mention of C1's previous use of racial slurs.
6 "Like or related" that the new claim "adds to or clarifies the original claim, and/or could have reasonably been expected to grow out of the investigation of the original claim." EEO MD-110, Chap. 5, Sec. III.B.2.
7 While an employee generally may not be disciplined more than once for the same misconduct, see, e.g., Wigen v. U.S. Postal Serv., 58 M.S.P.R. 381 (1993), we note that it is unclear from the text of the proposed reprimand whether the reprimand in fact encompassed the entirety of C1's misconduct ongoing from December 15, 2010, or only a discrete portion of that misconduct.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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