0120091468
08-31-2012
Jacqulyn Bryant, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Jacqulyn Bryant,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120091468
Agency No. FNP-2007-0216
DECISION
Complainant timely filed an appeal from the Agency's January 14, 2009, final decision concerning her 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 decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not establish that she was subjected to unlawful harassment, nor to discrimination in the revocation of her law enforcement commission.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Park Ranger at the Independence National Historical Park in Philadelphia, Pennsylvania. In this position, Complainant served as District Ranger in the Protection Division and was responsible for the management, administration, and supervision of visitor protection and law enforcement personnel. Complainant supervised six to eight employees.
On February 23, 2007, Complainant filed an EEO complaint in which she alleged the following:
1. From September 2006 and continuing, the Agency subjected Complainant to discrimination on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when someone posted derogatory written material about her in the men's locker room; co-workers and subordinates entered her office without speaking to her; and she was subjected to inappropriate comments from subordinate employees.
2. In February 2007, she was subjected to reprisal when the Agency assigned her to work the third floor, which contained the men's locker room;
3. On April 30, 2007, the Agency subjected her to discrimination on the bases of sex and race when she had to share her office with other employees; and
4. In July 2007, the Agency revoked her law enforcement commission in reprisal for her EEO activity.
In an investigative affidavit, Complainant stated that, in June 2006, she was temporarily promoted to the position of Operations Chief (the Chief) while the Chief was on extended family leave. Complainant stated that, in late August 2006, she took annual leave for a few weeks, and upon her return, she met with the Chief and the Chief Ranger (CR), who presented her with documentation and asked her to provide a response. She stated that the Chief warned her that the documentation consisted of discriminatory language about her.
The record contains a copy of a letter dated June 16, 2006, entitled "Temporary Promotion of Supervisory Park Ranger [Complainant]." The words "WORST DECISION EVER!!!" are etched on top of the letter in bold. The record also contains a copy of a newspaper article entitled, "Can Having a Bad Boss Be a Good Thing?" on which several handwritten statements are scribbled, including the following:
a. takes anti-depressants that don't work;
b. cannot qualify with any of her firearms;
c. lies;
d. speaks a strong form of Ebonics where everyone's first name gets an "s" added;
e. smells like rotten Right Guard;
f. broke her fingernail and took a week off sick;
g. shot a hole through the ceiling of an indoor firing range, thereby forever denying access to that range for her entire agency;
h. accused a man with a Black wife of being prejudiced against Black women;
i. had employees sign blank reviews, then copies were given back with her comments written after the fact;
j. gave performance reviews of two employees while they sat together;
k. an LE [law enforcement] supervisor, living in Philly for over 13 years while refusing to give up Arkansas license plates;
l. criticizes subordinates over the radio, even when she doesn't know circumstances because she rarely leaves her office;
m. criticizes subordinates for improper uniform standards, while she herself is in violation;
n. lives in low-cost government housing for the purpose of being an "on call supervisor" and recently a car crashed through an iron gate surrounding her house, she didn't respond to the incident, claiming she was sleeping; and
o. requested an office to respond to her residence to investigate a suspicious condition while she was home.
After reviewing the documentation, Complainant stated that she submitted a response dated September 27, 2005, entitled "Personal and Professional Attacks." Complainant stated that she told the Chief that if the employees had that much animosity and hatred towards her, she was not comfortable working that night because she did not trust her employees. Complainant stated that just about everyone in the Division knew about the documents that had been posted in the men's locker room. Complainant stated that an Agency investigation revealed that two co-workers (C2 and C3)1 were responsible for the derogatory locker room documents against her, but she had to work with them for months after this was revealed. Complainant stated that C2 is biracial, his appearance is not similar to "your typical African American," and C2 had not self-identified as African-American. Complainant stated that C2 left the Agency in January or February 2007.
Complainant stated that that after management became aware of who posted the locker room documents, she still faced attacks, including a confrontation with a Caucasian male ranger (C1) after a staff briefing. Complainant stated that, during the confrontation, C1 came into her office, raised his voice, left the door open so that bystanders could hear him raising his voice, and asked her if she had a problem with him. Complainant stated that she refused to get into a verbal altercation with C1, although he tried to provoke her. Complainant stated that when she reported C1's actions to the CR, the CR told her that she could not let her employees "run over" her, and she should have kicked C1 out of her office and sent him home for insubordination. Complainant stated that she reported the incident to the Chief and CR, but C1 was not disciplined beyond a verbal warning.
Complainant also stated that in November 2006, she discovered outdated memoranda, articles, pamphlets, and training materials in her mailbox. She stated that someone also placed six copies of the Agency's anti-discrimination policy and two copies of the ethics policy in her mailbox. Complainant further stated that, on December 3, 2006, she found an "Ethnic Expressions" catalog under her door. Complainant also stated that on December 17, 2006, she discovered a copy of the Agency's personal appearance policy in her mailbox. She stated that someone had highlighted the portion of the policy which prohibited employees from having unnatural hair colors, and the word "purple" had been highlighted with a blue marker. Complainant stated that her hair color is "maybe auburn or dark brown, but not purple," but she forwarded the document to the Acting Chief (AC).
Complainant stated that, on December 20, 2006, she discovered an Agency warning notice booklet in her mailbox. She stated that the notices were issued in situations wherein rangers do not want to issue a violation notice. Complainant stated that she documented the evidence and reported it to a supervisor who was on duty during the absence of the AC. "I found it very hostile and offensive, you know a warning notice. So, basically, you know, this subliminal message, it kind of spoke," Complainant stated. Complainant's Deposition Transcript, p. 33.
Complainant further stated that after her office was moved to a new building in January 2007, she was given the responsibility of monitoring the third floor of the new building, which included the men's locker room. Complainant also stated that she was the only supervisor required to move to a new building with the individuals who harassed her. Complainant stated that in February 2007, her physician directed her to stay out of work because of stress, anxiety, and depression. She stated that when she returned to work in late April 2007, there were employees in her office, including an individual (C4) who had been acting in her position during her absence. Complainant stated that C4 approached her one day in her office and asked her to turn down the volume of a recorded sermon she was listening to, but she told him she would not turn the volume down because he was in her office. Complainant further stated that other employees were in her office, but management responded to her complaints by maintaining that there was not enough office space for all employees and recommending that she move to another office.
Complainant stated that, two weeks later, the Deputy Superintendent and the AC presented her with a letter that stated that her commission was suspended because of her emotional state. Law Enforcement commissions are issued only to employees who have successfully passed the background investigation, medical exam (including psychological screening), physical efficiency battery, drug testing, and rigorous training requirements. Dep't of the Interior (Nat'l Park Service), accessible at http://www.nps.gov/refdesk/DOrders/DOrder9.html (last visited Aug 29, 2012). The Agency suspended Complainant's Type I commission, which is held by law enforcement personnel whose primary field, supervisory, or administrative duties are the investigation, apprehension, and detention of individuals suspected or convicted of violating the criminal laws of the United States. Id.
Complainant stated that the she and her colleagues must have a physical examination "every few years" because of their law enforcement role, and she had just had an examination in June 2007, but the report had not been issued yet. Nevertheless, Complainant stated that the Agency suspended her commission in late July 2007, and management took possession of her weapon. She stated that there had not been any incidents wherein she displayed an emotional outburst or threatened anyone. She stated that she cried because of the harassing incidents were hurtful and upsetting, and management was not supporting her. Complainant stated that management deceitfully obtained her firearm and prematurely suspended her commission before it received the results of her medical documentation, and other than her crying, there was no documentation that she was abusive, disruptive, belligerent, physically threatening, or aggressive. She stated that she had worked at the Independence National Historical Park for more than 15 years, and there had been very few incidents wherein an employee's commission was suspended. Complainant stated that there was no documentation to support the suspension of her commission, and the Agency returned her commission in late November 2007 after an Independent Medical Examination found her "fit to do arduous duty as a law enforcement officer."
The CR (Caucasian male) stated that, in September 2006, he learned that derogatory comments had been written on a newspaper article about Complainant. He stated that he brought it to the attention of Complainant because he did not want a supervisor working with subordinates without knowing what they were saying about her. The CR stated that he issued a memorandum to staff that indicated that Complainant would be temporarily promoted to a GS-12 position while the Chief was on temporary family medical leave. He stated that someone wrote a comment on the memorandum which said "worst decision ever," and he investigated the matter to ascertain who wrote the comment. The CR stated that the investigation revealed that there were two responsible individuals, C2 and C3. He stated that one of the culprits was disciplined, and the other left the Agency before being disciplined. The CR stated that he believed the suspension was changed to a non-suspension form of discipline or some type of warning.
The CR further stated that C2 said that he hated Complainant because he felt Complainant was incompetent and management did not satisfy him with respect to his complaints about her. The CR stated that the newspaper article was about bad supervisors, and C2 wrote five to seven mean-spirited things about Complainant on the article, although there may have been some truthfulness to the comments. The CR also stated that the office moved from one building to another, and the building did not allow for daily janitorial services. The CR stated that the Chief assigned supervisors the task of coordinating the cleaning and maintaining of particular floors, which included scheduling the proper people to make sure needs were being met. He stated that Complainant was assigned a floor that contained the new locker rooms, but Complainant felt this assignment was insensitive because the negative things about her had been in the men's locker room in the old building. The CR stated that management has been supportive of Complainant since they found the documents. He stated that he was aware of Complainant's previous EEO activity.
The Chief (Native-American male) stated that a local newspaper ran a feature about the "world's worst boss," and some employees posted negative comments about Complainant with the article in the men's locker room. The Chief stated that Complainant was informed about the comments and drafted a response. He stated that C2 admitted he wrote some of the comments, and C3 wrote the remainder. The Chief stated that he recommended disciplinary actions against C2 and C3, and Complainant went on leave because of health issues. The Chief stated that he recommended a seven-day suspension for C2 and a five-day suspension for C3. He stated that C2 left the Agency in late December 2007, and C3's suspension was "was whittled down to a two-day suspension and then after that he was actually reinstated [with] his time and it was settled as a written reprimand." Chief's Deposition Transcript, p 8.
The Chief further stated that he was aware of the confrontation between Complainant and C1, and he tried to encourage them to work out their issues instead of taking disciplinary action against them. The Chief stated that the Agency relocated to new office, and Complainant was assigned a very large office, but it was understood that the office would be shared because there were five supervisors. He further stated that supervisors were responsible for monitoring the condition of the building and making sure the equipment worked properly. The Chief stated that he selected floors for each supervisor to monitor to ensure that the building was maintained at the proper level, and Complainant was assigned the third floor. The Chief stated that Complainant's commission was suspended because she had a number of emotional breakdowns in which she exhibited tears, and her physical evaluation indicated she needed further evaluation. He stated that Complainant's commission was returned. The Chief stated that he was aware of Complainant's prior EEO activity.
The Deputy Superintendent (Caucasian female) stated that one of the employees who wrote the negative comments about Complainant left the Agency, and the other employee had his suspension reduced to a verbal counseling. She stated that management decided not to suspend C2 or C3 because "we did not have anything in that bottom series of written comments that were [sic] discriminatory, they were not the nicest things to say about people, but we were advised that it would not be in our best interest to continue with the suspension because we did not have the administrative basis to go on," the Deputy Superintendent stated. Deputy Superintendent's Transcript, p. 7. The Deputy Superintendent stated that C3 ultimately received only a verbal counseling because of his posted comments about Complainant.
The Deputy Superintendent further stated that the Agency suspended Complainant's commission because she expressed distress in her personal life, cried on the job, would not attend meetings, and would not report to work. The Deputy Superintendent stated that it was recommended that Complainant have a medical examination, which is normal in such circumstances. The Deputy Superintendent stated that Complainant's commission has been reinstated. She stated that he was aware of Complainant's previous EEO activity.
The record contains a copy of a typed letter from the Deputy Superintendent to Complainant. ROI, p. 271.2 The letter stated that Complainant was on extended leave from March 4 to April 30, 2007, because of stress, high anxiety, and depression that resulted from a hostile work environment. The letter further stated that, upon Complainant's return to work, she accepted the AC's offer to work in an Administrative Supervisory Park Ranger position instead of returning to her position as one of the Resource and Visitor Protection Supervisory Park Rangers responsible for supervising field operations and shift staff. The letter stated that, since Complainant returned to work, she had not worn her uniform or any defensive equipment, and Complainant turned in her firearm for annual inspection and repair by the park's armorer. The letter also stated that the AC and Complainant agreed that her weapon would not be returned to her until she resumed her law enforcement duties.
The letter further stated that Complainant indicated that she was not ready to return to full law enforcement duties. The letter stated that Complainant intermittently took leave in June 2007, and on June 5, 2007, Complainant completed her regularly-scheduled arduous duty Periodic Medical Examination. The letter stated that, on June 18, 2007, the Agency's Comprehensive Health Services informed Complainant of the results of her Periodic Medical Examination, which determined that her "medical qualification is pending due to the following finding(s) which do not meet NPS Medical Standard(s): Anxiety/Depression treated by a psychologist/psychiatrist." The letter also stated that, because of numerous incidents that brought into question Complainant's emotional stability and the results of the Periodic Medical Examination, it was in the best interest of the Agency to suspend Complainant's commission effective July 23, 2007. "Your commission will be suspended until a favorable resolution to your periodic medical examination is determined, and it is certified in writing that you are ready to resume law enforcement duties, and management is in agreement," the letter concluded. The record reflects that the Agency returned Complainant's commission in November 2007 after an Independent Medical Examination found her fit for arduous duty as a law enforcement officer.
The AC (Caucasian male) stated that in September 2006, a blue envelope containing copied documents about Complainant was tacked to his office door, and he submitted the documents to management. He stated that he went upstairs to the locker room and saw that the documents had been copied on a table. The AC stated that he was aware of an incident between Complainant and C1 wherein Complainant felt C1 was on the verge of insubordination. He stated that he believed C1 was counseled by the Chief because of the incident. The AC stated that Complainant was unhappy with the assignment of ensuring the floor remained clean in the new building, but all managers were given the assignment of monitoring specific floors. He stated that Complainant displayed emotional issues when she returned to work, including bursting into tears uncontrollably and not talking or acknowledging others.
The AC further stated that there were instances wherein Complainant would blow up at people without reason, and therefore, her commission was suspended because her mental stability was questionable. He stated that he was involved in a similar matter wherein a Caucasian male was suspended in 2006 because he discharged a weapon in a locker room. The AC stated that Complainant's commission has been restored. The AC stated that he was aware of Complainant's previous EEO activity.
The Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision dismissed claim 3, regarding sharing her office, on the basis that it failed to state a claim. The decision also concluded that claims 1 and 2 were not sufficiently severe or pervasive enough to constitute harassment, and there was no persuasive evidence that the alleged actions were based on Complainant's race, sex, or EEO activity. Regarding claim 4, the Agency concluded that management provided legitimate, non-discriminatory reasons for its actions in revoking Complainant's law enforcement commission, and Complainant failed to prove that the reasons were pretextual.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that she is the only African-American in the Law Enforcement Division, and her colleague's negative comments and postings about her reflect "clear and indisputable dislike" of her. Complainant further maintains that Caucasian Supervisory Rangers have not experienced the type of hostility she has experienced, and she has sought counseling and medical treatment because of the ongoing harassment. The Agency does not raise any argument on appeal.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Hostile Work Environment
Complainant alleged that she was subjected to unlawful harassment on the bases of race, sex, and in reprisal for prior EEO activity when, from September 2006 until September 2007, she was subjected to insulting comments and actions from employees. To establish a claim of harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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).
Credibility of the Witnesses
Complainant did not request a hearing. Therefore, we must make render credibility determinations on the record. See Miller v. Dep't of Veteran Affairs, Appeal No. 0120093073 (June 6, 2011); Wagner v. Dep't of Transp., EEOC Request No. 0120101568 (Aug. 23, 2010). Upon review, we are persuaded that the actions occurred as alleged by Complainant. In fact, the Agency reported that C2 and C3 admitted that they were responsible for the derogatory locker room documents, and management corroborated that C1 had engaged in a confrontation with Complainant. Additionally, the Agency acknowledged that Complainant was assigned to monitor the men's locker room and had her commission revoked after she was observed crying at work and missed meetings. Moreover, we are further persuaded by the veracity of Complainant's account by the fact that Complainant promptly reported each incident to management after they occurred. Finally, we note that Complainant's accounts of the incidents at issue in this case are essentially unrebutted by the Agency, except for Complainant's assertion that the incidents were motivated by her race, sex, and EEO activity.
Harassment
Turning to the first prong of Complainant's harassment case, Complainant is an African-American female whose first EEO activity occurred in October 2006 when she initiated EEO counseling for incidents contained in this complaint. The harassment included an incident wherein two co-workers wrote derogatory personal attacks against Complainant on material posted in the men's third-floor locker room; an "Ethnic Expression" catalogue was left underneath Complainant's office door; a warning notice was placed in Complainant's office mailbox; an employee engaged in a confrontation with Complainant in her office; and a random notice about the Agency's policy on hair color was left in Complainant's mailbox. Additionally, Complainant alleged that the harassment continued when the Agency assigned Complainant to monitor the men's locker room in the new building, and the Agency suspended her commission after Complainant became emotional about her co-workers' conduct toward her, and management's response.
Upon review, we determine that the alleged actions were clearly unwelcomed, as reflected by their derogatory content and Complainant's immediate reporting of and objection to them. With respect to the bases for the actions, we note that the first incident involved locker room postings about Complainant speaking "Ebonics" 3 and Complainant's challenging of prejudice against African-Americans. Similarly, Complainant, not unreasonably, perceived the unsolicited placement of an "Ethnic Expressions" catalog underneath her office door as a racial taunt. We further note that Complainant was the only African-American supervisor in her office, and the only person who was targeted with these types of offensive actions. Thus, we conclude that the actions reflect that Complainant was targeted because of her race. However, we do not find that the actions reflect animus against Complainant because of her sex or EEO activity.
Turning to the fourth prong of the analysis, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in Complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; and whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. 17, 23 (1993); see also Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (Mar. 19, 1990).
In this case, the Agency analyzed Complainant's complaint as consisting of separate, independent claims. However, we find that the Agency improperly fragmented Complainant's complaint, which resulted in a piecemeal analysis of her allegations. We find that Complainant's complaint consists of a single claim that she was subjected to various incidents of harassment. We further find that Complainant was subjected to open ridicule and intimidation in the office that reflected racial animus against her. Moreover, Complainant's commission was suspended, which undermined her ability to fully perform her law enforcement duties. Consequently, we conclude that Complainant was subjected to conduct that was sufficiently severe and pervasive to create a hostile working environment.
Liability
Because Complainant established that she was subjected to racial harassment, the final elemenet of our analysis is whether the Agency is liable for the harassing actions. In the case of co-worker 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).
The record reveals that the Agency knew about the racist locker room postings targeting Complainant by September 25, 2006. The Agency initiated an investigation, and in October 2006, C2 and C3 admitted that they were responsible for the postings that contained the racist comments. The Agency acknowledges that, although it proposed to suspend the employees responsible for the locker room postings, it did not do so. Instead, the Agency maintains that one of the harassers was not disciplined because he left the Agency in January 2007, months after the fact, and the other harasser received a verbal counseling as discipline for his actions. We find that the Agency's response was inadequate. Once the responsible parties confessed that they were responsible for the locker room postings against Complainant, the Agency should have taken prompt and appropriate corrective action, such as disciplining C2 and C3 and providing them with anti-harassment training. Moreover, because the discriminatory postings were in a space frequented by other employees, the Agency should have promptly provided all employees in the office with anti-harassment training and guidance in order to prevent others from engaging in such actions.4
We are persuaded that the Agency's inadequate response to the initial racist message emboldened other employees to likewise show disrespect to and intimidate Complainant. In essence, the Agency's failure to properly discipline the confessed culprits conveyed the message that other employees could harass Complainant with impunity, which they did. Likewise, assigning Complainant to monitor the men's locker room in the new building was not only insensitive to Complainant, but also further communicated to employees that the Agency did not take harassment against Complainant seriously.
Suspension of Complainant's Law Enforcement Commission
Complainant alleges that the Agency retaliated against her when it suspended her law enforcement commission in July 2007.5 Management stated that Complainant's commission was suspended because she displayed emotional distress in the workplace, cried in the office, failed to attend some meetings, became withdrawn from her co-workers, and took significant amounts of annual and sick leave. Complainant stated that she cried and exhibited emotional distress in the office because the harassing incidents were hurtful and upsetting, and management was not supporting her. The Agency further stated that it recommended that Complainant undergo an October 2007 psychiatric examination because of her demeanor, which was its normal practice in such circumstances.
Upon review, we are not persuaded that the Agency suspended Complainant's commission because of retaliatory animus. Nevertheless, we determine that the harassment of Complainant is inextricably linked to the Agency's decision to revoke her law enforcement commission. Complainant's reaction to the harassment (crying, absences, and withdrawal from co-workers) was reasonable and foreseeable because the Agency's inaction created the circumstances that led to her emotional distress.
Therefore, we find that the suspension of Complainant's law enforcement commission and October 2007 psychiatric Independent Medical Examination (IME) were the proximate result of the racial harassment, neither of which would have occurred but for the Agency's failure to take prompt and effective remedial action when Complainant reported the harassment. Consequently, the Agency cannot rely on Complainant's reasonable reaction to racial harassment as a legitimate reason for suspending her law enforcement commission or subjecting her to the IME. See Fonda-Wall v. Dep't of Justice, EEOC Appeal 0720060035 (July 28, 2009) (agency's reliance on the suspension of security clearance to justify subsequent actions taken against complainant not legitimate because initiation of suspension of security clearance was discriminatory). As such, the Agency must remedy all consequences of its failure to properly respond to the racial harassment to which Complainant was subjected, including the suspension of her commission and the October 2007 IME.6
CONCLUSION
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 decision. 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:
1. 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 her 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 ninety (90) 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.
2. Within thirty (30) days of the date on which this decision becomes final, the Agency shall expunge from all files and records any documentation or reference to the revocation of Complainant's law enforcement commission and October 2007 Independent Medical Examination (IME). The Agency shall not take the revocation of Complainant's law enforcement commission and October 2007 IME into consideration when undertaking any future employment decisions or actions.
3. Within ninety (90) days of the date on which this decision becomes final, the Agency shall provide training to all management officials at its Independence National Historical Park in Philadelphia, Pennsylvania, regarding their responsibilities with respect to Title VII, with special emphasis on preventing and responding to harassment and EEO anti-retaliation provisions.
4. Within ninety (90) days of the date on which this decision becomes final, the Agency shall provide training to all non-management employees at Independence National Historical Park in Philadelphia, Pennsylvania, regarding Title VII, with special emphasis on its harassment and EEO anti-retaliation provisions.
5. Within sixty (60) days of the date on which this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the Operations Chief, the Chief Ranger, the Acting Chief, and the Deputy Superintendent. 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 any of the responsible management officials have left the agency's employ, the Agency shall furnish documentation of their departure date(s).
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 at its Independence National Historical Park in Philadelphia, Pennsylvania, 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
August 31, 2012
Date
1 The record identifies C2 as an African-American male and C3 as a Native-American male, although Complainant disputes the Agency's characterization of C2 as African-American.
2 The letter contains a handwritten notation of the date July 23, 2007, but is otherwise undated.
3 "Ebonics" is a nonstandard form of American English characteristically spoken by African Americans in the United States. American Heritage Dictionary of the English Language, Fourth Edition (2000).
4 We note that a November 2007 memorandum from the Chief reflects that he initially decided to suspend C2 and C3, send C2 and C3 to "sensitivity training," and provide EEO/diversity training to all employees by March 2007. However, witness statements reveal that these actions were not undertaken as proposed by the Chief, and there is no documentation reflecting that the suspensions and trainings were effectuated.
5 We note that Complainant did not challenge the Agency's June 5, 2007, Periodic Medical Examination, see n. 4, infra, or the subsequent psychiatric Independent Medical Examination (IME) in late October 2007, which resulted in the return of her law enforcement commission. Nonetheless, we find the IME to have resulted from the racial harassment, as discussed further in the text below.
6 We note that the record reflects that Complainant's June 2007 Periodic Medical Examination was a regularly-scheduled arduous duty examination that would have occurred even if Complainant had not been subjected to racial harassment or exhibited emotional distress.
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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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