0120130275
09-10-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120130275
Agency No. P20110707
DECISION
On October 11, 2012, Complainant filed an appeal from the Agency's September 17, 2012, final decision 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established by a preponderance of the evidence that he was subjected to sexual harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a WS-8 Cook Supervisor at the Federal Correctional Institution, Victorville, California.
On June 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when from May 4 to May 20, 2011, his first-line supervisor (S1) sent him text messages of a sexual nature, subjected him to unwanted touches and kisses, and made an unwelcome visit to his residence.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant stated that prior to May 4, 2011, his professional and personal relationship with S1 was "probably about average," and he did not interact with S1 outside of work. Complainant stated that in March 2011 some inmates began to give him messages of a sexually harassing nature from S1, but he took no action because "it was uncomfortable for me." Complainant stated that an inmate assigned to work in the prison warehouse frequently stated that S1 "wants to get with you." Complainant stated that he reported the inmate's remarks to S1, who said "[o]h, don't worry about it. That's an inmate being an inmate. But you are cute and cuddly though."
Complainant stated that on May 4, 2011, S1 encouraged inmates "to deliver sexual harassment messages to [complainant]," and suggested that Complainant might get a promotion he had sought, saying, "maybe if you play your cards right, maybe you'll get what you need." Complainant stated that S1's demeanor indicated that her remark was sexual in nature.
Complainant stated that on May 16, 2011, S1 sent him a text message stating that she wanted to grab him and kiss him while he was at work. Complainant stated that on May 17, S1 sent him a text message stating that "she used to get paid for like giving...phone sex." Complainant complained to S1 about those text messages, but she dismissed his concerns, stating: "Oh, don't worry about it. It'll be okay. Nobody will know about it . . . . We're grown people . . . . You're going to Atlanta [for a promotion]."
Complainant did not take his complaint to a different manager at the time because he felt that he lacked sufficient evidence to prove his claim, and did not wish to appear "disgruntled." Complainant stated that on May 16, 2011, S1 called him and made sexual comments to him but he did not provide any specific details during the investigation.
On May 17, 2011, Complainant stated that S1 told him that she intended to visit his apartment later that week "[because I want to see where you live." On May 19, 2011, S1 told Complainant that she wanted to "show [him] something in the warehouse" at work. After they entered the warehouse, S1 began kissing him and placed her hand in his "groin area." Complainant stated: "I was stunned and then I backed up and then I walked away." Complainant stated that he immediately reported this incident to Cook Supervisor (CS) and also told him about S1's intention to visit Complainant's apartment.
On the evening of May 19, 2011, he called S1 and told her not to visit his apartment because he was not comfortable with her visit. Nevertheless, on May 20, 2011, S1 called him and told him that she was en route to his apartment. Complainant told S1 that he had just returned home from work a few hours earlier and did not feel well. S1 stated that she was only a few miles away. Complainant stated that he went outside and waited for S1. S1 entered his apartment and asked where his room was located. Twenty minutes later, his roommate, another Cook Supervisor (CS2), arrived at the apartment, and explained to him the situation and why he was uncomfortable with it.
Complainant stated that, on May 20, 2011, he complained about S1's actions to GS-9 Assistant Food Service Administrator (AFSA), and at that time S1's harassing behavior ended. After May 20, Complainant no longer had a work relationship with S1. Complainant stated that he did not give S1 any reason to act in a sexually suggestive manner towards him. Complainant stated that he had shown S1's inappropriate text messages to Agency investigators.
In response, S1 denied that any of the incidents occurred as alleged. With regard to visiting Complainant's residence, S1 testified that on May 20, 2011 she dropped off a letter at Complainant's apartment that contained a job offer for him. S1 stated that the letter had been sent to his work mailbox and arrived when Complainant was taking leave, such that he would not obtain the letter for another five days unless she conveyed it to him. S1 stated that he agreed to receive the letter from her when she offered to drop it off on her drive home from work.
AFSA confirmed that on May 20, 2011, Complainant stated that S1 had been harassing him for the previous seven weeks. Complainant told AFSA about the May 19, 2011, warehouse incident, the May 20, 2011, apartment incident, and incidents involving an inmate giving inappropriate messages from S1 to Complainant. AFSA reported Complainant's allegations to his supervisors, who moved S1 to a different location at FCI the following day.
CS testified that he never observed any inappropriate interactions between Complainant and S1. On May 17 or 18, 2011, Complainant told him that S1 was making inappropriate sexual comments in text messages, and described the May 2011 warehouse incident. CS stated that he was supposed to go to lunch with Complainant on May 20, 2011. When he arrived at Complainant's apartment, he saw S1's car but did not see S1.
CS2 also testified that he did not observe any inappropriate interactions between Complainant and S1, and did not know about Complainant's claims until May 20, 2011, when Complainant mentioned that S1 had been sending "sexual text messages." CS2, who is also Complainant's roommate, stated that when he returned home from work on May 20, he entered the apartment he shared with Complainant. Complainant then exited the apartment and left the door open. He saw S1 standing in Complainant's room. CS2 exited and spoke to Complainant. Complainant told him to go and use the restroom while he explained to S1 that CS2 had returned home. CS2 testified that he later looked out a window and watched S1 leave.
The Agency found that Complainant failed to establish that any of the incidents occurred as alleged. Further, the Agency found that management did not know about Complainant's allegations until May 20, 2011. Additionally, management moved S1 to a different work area away from Complainant the day after management learned about Complainant's allegations. The Agency found that the Agency responded promptly and effectively upon learning of the incidents and therefore, the Agency avoided liability for any harassment that may have occurred prior to May 20. As such, the Agency found that Complainant failed to establish that he was subjected to harassment for which the Agency was liable. Complainant appealed the FAD to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant mainly argues that the incidents of harassment occurred as alleged. Complainant argues that at the time of the filing for appeal, the incidents were under investigation by the Agency and that he has proof of the text messages sent. The Agency makes no arguments on appeal.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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 a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where, as in this case, the alleged harassment does not result in a tangible employment action the Agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) 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; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
Assuming, arguendo, that we find that Complainant establish elements (1), (2), (3) and (4) of a sexual harassment claim, the Commission must find, however, that there is no basis for holding the Agency liable, i.e., element (5). There is no evidence that Complainant informed Agency officials about S1's behavior prior to May 20; therefore, he unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency. After Complainant reported the alleged harassing conduct, the Agency took prompt and effective action to correct the situation because Sl was immediately transferred to different unit, and Complainant no longer had any interactions with her. Complainant also stated in his appeal brief that the Agency was still investigating the matter. Nothing in the record shows that these actions were insufficient or inappropriate in such a manner to rebut the Agency's assertions that it took appropriate steps to avoid liability. See Taylor v. Dep't of the Air Force, EEOC Request No. 05920194 (July 8, 1992) (appropriateness of 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). As such, we find that Complainant failed to establish that the Agency should be held liable for S1's conduct; therefore, his claim that he was subjected to sexual harassment or a discriminatory hostile work environment must fail.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD finding no discrimination.
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 (S0610)
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 (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
____9/10/14______________
Date
2
0120130275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120130275