01A33053
04-28-2004
George Watson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
George Watson v. Department of Veterans Affairs
01A33053
April 28, 2004
.
George Watson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33053
Agency No. 200H-0620-2002100516
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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
reverses the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Housekeeping Aid, WG-2/4 at the agency's Hudson Valley Health Care
System in Montrose, New York. Complainant sought EEO counseling and
subsequently filed a formal complaint on December 12, 2001, alleging
that he was harassed based on his religion (Islam) from September 11,
2001, to November 27, 2001 when:
(1) he received several warning letters between September 11, 2001,
and November 11, 2001;
on September 20, 2001, Supervisor EL asked him, �Why don't you act like
a Muslim?�;
on October 11, 2001, his co-workers in the Facilities Management Service
(FMS) office were laughing at pictures depicting the U.S President
dressed as a Muslim, the Statue of Liberty dressed as a Muslim woman
holding the Qu'ran, and lower Manhattan with mosque and other Islamic
buildings spread out along the skyline, which were generated and
distributed by Supervisor JS.
on October 12, 2001, Supervisor JS gave him a computer diskette with
the words �get Osama� written on it; and
on an unspecified date, Supervisor JS asked him, �Where is your beanie
(kufee)?�
Complainant also alleged that he was harassed based on his religion and
in reprisal for contacting an EEO Counselor when:
on November 5, 2001, Supervisor TV told him to submit his request for
a reassignment to the laundry room in writing;
on November 7, 2001, Supervisor EL told him that if he wanted to be
reassigned off the floor he would have to put his request in writing,
because he had filed an EEO complaint; and
on November 27, 2001, he received a copy of a report that had been
filed with the Police Service on the previous day, claiming that he
had threatened Supervisor EL with a knife on September 20, 2001.
At the conclusion of the investigation, complainant was informed of
his 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.
In its FAD, concerning claim (1), the agency found that management
criticized complainant's performance both before and after September 11,
2001 and issued warning letters to complainant for telling a supervisor
to �bite his as..�, for cursing, being hostile, disrupting training
classes, and being outside his work area. Concerning claim (2), the
agency concluded that the incident did not occur as complainant alleged.
Concerning claim (3), the agency found that management responded promptly,
appropriately and effectively when it became aware of the group incident
on October 11, 2001 and that JS was disciplined. Concerning claims
(4) and (5), the agency concluded that the incidents did not occur as
complainant alleged. Concerning claims (6) and (7), the agency found that
management was appropriately reluctant to reassign an alleged victim of
harassment without obtaining his consent in writing. Concerning claim
(8), the agency found that management responded promptly, appropriately
and effectively when it became aware of Supervisor EL falsely accusing
complainant of threatening him with a knife and that EL was disciplined.
The agency concluded that it was not liable for harassment.
ANALYSIS AND FINDINGS
On appeal, we review the FAD issued without a hearing de novo. 29
C.F.R. � 1614.405(a). Harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation of
Title VII must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it unreasonably interferes humiliating, or mere offensive
utterance, and whether it unreasonably interferes with an employee's
work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17,23
(1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is actionable
only if the harassment to which the complainant has been subjected
is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). The harassers' 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).
To establish a claim of harassment based on his religion a complainant
must show that: (1) he belongs to a statutorily protected class; (2)
he 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 his 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).
In the instant case, we find that complainant established, by a
preponderance of the evidence, that he was subjected to harassment
based on his religion. It is undisputed, that after September 11,
2001, complainant received several warning letters from his supervisors.
The record reveals that in the prior seven years, complainant had only
received two warning letters, and after September 11, 2001, he received
approximately 25 to 30 warnings. There is no evidence in the record to
support the agency's contention that the performance problems occurred
as the agency alleged. Moreover, during the investigation some managers
did not recall why complainant received so many warnings. The record
also shows that management admitted that it is uncommon for an employee
to receive so many warning letters.
The record also supports a finding that complainant's supervisors and
co-workers made derogatory remarks about complainant's religion, and
expressed hostility toward him, and we therefore credit complainant's
version of the remarks made by Supervisors EL and JS. The agency admitted
that the October 11, 2001 incident involving the inflammatory pictures
occurred, and we also find that complainant promptly reported the incident
to management. We find that after supervisor JS generated and distributed
the pictures, complainant felt so uncomfortable that he left the room.
Complainant also felt intimidated because he was the only Muslim at the
office, and he believed that no one respected him because he is Muslim.
The statement of one witness confirms that complainant felt uncomfortable
with the pictures and jokes around the office regarding his religion
and was offended by the comments. The witness testified that he saw
complainant outside the building, almost crying. Finally, concerning
claim (8), it is undisputed that supervisor EL filed an administrative
report (the record reveals that the report was administrative, not
a police report as complainant alleged), claiming that complainant
threatened him with a knife on September 20, 2001. As there is no
evidence of any violent incident between complainant and EL, we conclude
that EL intentionally falsely accused complainant. The agency responded
that EL used complainant in order to make a point about violence in the
workplace. However, we credit complainant's testimony that EL tried to
make a point about how violent are the Muslim people.
We conclude that complainant was subjected to unwelcome verbal conduct
based on his religion, and that the behavior complained of during the
relevant period was both sufficiently severe and pervasive to render the
work environment hostile after September 11, 2001. Therefore, we conclude
that complainant was subjected to unlawful harassment by his supervisors.
In the context of supervisory liability, the Supreme Court and the
Commission have moved away from the commonly used categories of �quid
pro quo� and hostile work environment harassment, finding it more
useful analytically to distinguish between harassment that results in a
tangible employment action and harassment that creates a hostile work
environment. . See Burlington Indus. v. Ellerth, 524 U.S. 742, 760-65
(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); EEOC
Enforcement Guidance; Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002, at 2, n.7 (June 18, 1999). In
Ellerth and Faragher, supra, the Supreme Court made clear that employees
are subject to vicarious liability for unlawful harassment by supervisors.
The standard of liability set forth in these decisions is premised on two
principles; 1) an employer is responsible for the acts of its supervisors,
and 2) employers should be encouraged to prevent harassment and employees
should be encouraged to avoid or limit the harm from harassment.
In order to accommodate these principles, the Court held than an employer
is always liable for a supervisor's harassment if it culminates in a
tangible employment action. When the harassment does not result in a
tangible employment action being taken against the employee, the agency
may raise an affirmative defense to avoid liability. The agency can
meet this defense, which is subject to proof by a preponderance of the
evidence, by demonstrating (a) the employer exercised reasonable care
to prevent and correct promptly any harassment<1>; and (b) the employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.
EEOC Enforcement Guidance; Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002, at 2, n.7 (June 18, 1999).
In the instant case, we find that the harassment resulted in a tangible
employment action, i.e., the letters of warning and also created a hostile
work environment from which complainant specifically requested to be
reassigned. Even availing the agency the benefit of the affirmative
defense, we conclude that the agency is liable because there is no
evidence that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to
avoid harm otherwise. Therefore, after a careful review of the record,
and arguments and evidence not specifically addressed in this decision,
we REVERSE agency's final order. The agency is to take remedial actions
in accordance with this decision set forth below.<2>
ORDER
The agency is ORDERED to take the following remedial actions;
1. No later than thirty (30) calendar days after the date this decision
becomes final, the agency shall reassign the managers found to have
harassed complainant from complainant's chain of command. Only upon
complainant's specific request, should complainant be the employee who
is reassigned. Complainant should not be involuntarily transferred.
2. No later than sixty (60) calendar days after the date this
decision becomes final, the agency is directed to provide training
to the supervisors responsible for the harassment. The agency shall
address these supervisors' responsibilities with respect to prohibiting
and refraining from harassment in the workplace and with respect to
preserving the integrity of the EEO process. Each supervisor shall
receive a minimum of eight (8) hours of EEO training with respect to
their obligations under the statutes enforced by this Commission with
special emphasis on Title VII.
3. No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall review the matter giving rise to this
complaint and determine whether disciplinary action against any of the
responsible individuals discussed herein is appropriate. The agency
shall record the basis for its decision to take or not to take such
actions, and report the same to the Commission in the same manner that
the implementation of the rest of the order is reported.
4. No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall remove the letters of warning issued
between September and November 2001 and any reference to them from
complainant's official personnel file.
5. The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a casual relationship between the
harassment and any pecuniary or non-pecuniary losses. Complainant shall
cooperate in the agency's efforts to compute the amount of compensatory
damages, and shall provide all relevant information requested by the
agency. The agency shall afford complainant sixty (60) days to submit
evidence in support of his claim for compensatory damages. The agency
shall issue a final decision on the issue of compensatory damages.
29 C.F.R. � 1614.110.
POSTING ORDER (G0900)
The agency is ordered to post at its Hudson Valley Health Care System,
Montrose, New York facility 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 (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 (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 (R0900)
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 (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
April 28, 2004
__________________
Date
1Such reasonable care generally requires an employer to establish,
disseminate, and enforce an anti-harassment policy and complaint procedure
and to take other reasonable steps to prevent and correct harassment.
There are no �safe harbors� for employers based on the written content of
policies and procedures. Even the best policy and complaint procedure
will not alone satisfy the burden of proving reasonable care if, in the
particular circumstances of a claim, the employer failed to implement
its process effectively.
2 Because complainant would not be entitled to further relief should he
prove retaliatory based harassment, we decline to address that basis.