01A60388
09-28-2006
Katrina Thornton, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Katrina Thornton,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A60388
Hearing No. 370-2005-00066X
Agency No. 040253
DECISION
On October 10, 2005, complainant filed an appeal from the agency's
September 26, 2005 final order 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 appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
Complainant filed a formal EEO complaint on January 29, 2004, alleging that
she was discriminated against on the bases of sex (female) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when: (1) she was harassed on September 7, 2003; and (2) she was
subjected to sexual harassment from July 20, 2003 until September 7,
2003.[1]
The record indicates that complainant was employed by the agency's U.S.
Forest Service as a GS-0461-03 Firefighter, at Six Rivers National Forest
in Orleans, California ("facility") from July 20, 2003 through September
18, 2003. Complainant alleged that her immediate Supervisor (S1; male), a
Supervisory Forest Technician engaged in unwanted sexual touchings with her
on September 7, 2003, after the fire crew finished work in Idaho and spent
the night in Montana. S1 did not deny he visited complainant's hotel room
in Montana, but denied all unwanted sexual touchings and stated that he
visited complainant's room only because she requested his help as she was
sick from drinking alcohol.
Believing she was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal EEO complaint. At the
conclusion of the investigation, complainant was provided with a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing. The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing and over the complainant's objections,
issued a decision without a hearing on August 19, 2005. The agency
subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged.
In the AJ's decision, she initially found that given the nature of the
allegations at issue, there were disputed issues of material fact as to
whether the alleged harassment occurred and there were questions of
credibility involved. As such, the AJ found that complainant raised
genuine issues of material fact and questions of credibility regarding the
prima facie case of harassment. AJ's Decision at 5.
However, in addressing the agency's liability, the AJ found that there was
no dispute that S1 was complainant's supervisor during the period at issue.
While the AJ found that the Agency's Motion for Summary Judgment was not
timely filed, she referred to the agency's statement of undisputed facts in
addressing the actions taken by the agency from the time the alleged
actions by S1 were reported to the agency's Administrative Officer. The AJ
found that the agency's actions were sufficient to establish the first
prong of an affirmative defense: that the agency exercised reasonable care
to prevent and correct promptly sexually harassing behavior. In so
finding, the AJ noted that complainant did not dispute the agency's
assertion that it had a sexual harassment policy in place and that in the
instant case, the agency had never received a harassment complaint against
S1 and it followed its policy and procedures for dealing with a report of
sexual harassment. The AJ noted that while complainant alleged that the
agency failed to conducted a thorough investigation and discipline to S1,
she was "unable to ascertain from the complainant's response the basis for
her assertion that the agency failed to fulfill its duty to the complainant
or the reasons why I should conclude, or at least find in dispute, that the
agency did not conduct a thorough investigation." AJ's Decision at 7. The
AJ found that the agency implemented its process for addressing a report of
sexual harassment the day it was reported, that S1 was removed from his
supervisory duties the following day and an external investigation was
initiated, resulting in a report on October 31, 2003. Investigative File
(IF) at Exhibit 30. Further, the AJ noted that S1 was not restored to his
supervisory duties until April of 2004, after the investigation cleared him
of wrongdoing and the Missoula, Montana Police Department found there was
no basis for a criminal investigation. The AJ also noted that when
complainant was rehired by the agency in 2004 for a temporary position, she
had no contact with S1. As such, the AJ found that there was no basis for
a claim of retaliation regarding her subsequent employment.
The AJ found that complainant reported the sexual touchings to the agency's
Administrative Officer within a reasonable period and the agency followed
its established policy by removing S1 from his supervisory position and
authorizing an investigation into the alleged conduct. The AJ then found
that based on the record, under circumstances where the allegations involve
a "one-time" event, as opposed to conduct which occurred over a period of
time, the second prong of the agency's defense (complainant unreasonably
failed to take advantage of the preventative/corrective measures provided)
was not applicable in the instant case and need not be discussed. AJ's
Decision at 10. As such, the AJ found that the agency was not liable for
the alleged sexual harassment in the instant case as it established an
affirmative defense as a matter of law. The agency's final order fully
implemented the AJ's decision finding no discrimination.
On appeal, complainant's counsel alleged that as S1 physically violated her
against her will, genuine disputes of material fact existed regarding the
agency's implementation of its sexual harassment policy and the conduct of
the investigation, among other matters. As such, complainant's requested
that the AJ's decision should be reversed and the case remanded for a
hearing on the issues of liability and damages. In response, the agency
stated that there were no genuine issues of material fact in the instant
case and thus summary judgment was appropriate. The agency further alleged
that it established an affirmative defense as it immediately responded to
the harassment allegations, and the law holds that an employer cannot be
held liable for a single incident of harassment by a supervisor where there
was no tangible employment action and the employer took steps to correct
and prevent the harassment. Thus, the agency alleged that the Commission
should deny complainant's appeal.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an
agency's final action shall be based on a de novo review . . ."); see also
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de
novo"). This essentially means that we should look at this case with fresh
eyes. In other words, we are free to accept (if accurate) or reject (if
erroneous) the AJ's, and agency's, factual conclusions and legal analysis -
including on the ultimate fact of whether intentional discrimination
occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, � VI.A.
(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").
We must first 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.
Initially, we find that the AJ's grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. As found by the AJ, while
there is a genuine issue of material fact regarding complainant's
allegation of sexual harassment and unwanted sexual touching by S1, we find
that, even if we assume that complainant's version was true, she did not
rebut the agency's assertion that it had a sexual harassment policy in
place and it followed its policy and procedures for dealing with a report
of sexual harassment. Regarding the agency's actions, the record reflects
that the agency took immediate corrective action as soon as management was
put on notice of the allegation of unwanted sexual touching by S1. The
undisputed record reflects that following complainant's reporting of the
incident with S1 to the agency's Administrative Officer, the agency
followed its sexual harassment policy: S1 was suspended from his
supervisory position and an investigation, conducted by an investigator
from outside the agency, was commenced. The record also reflects that
complainant's employment in 2003 ended as planned when she returned to
school, without contact with S1 and when she was again employed by the
agency in 2004, she had no contact with S1. The measures taken by the
agency are considered by the Commission as an element of an agency's
affirmative defense to an alleged hostile work environment. Enforcement
Guidance on Vicarious Employer Liability for Unlawful Harassment by
Supervisors, No. 915.002, at 12 (June 18, 1999) (Enforcement Guidance on
Employer Liability); Burlington Industries, Inc., v. Ellerth, 524 U.S. 742,
(1998), Farragher v. City of Boca Raton, 524 U.S. 775 (1998). We concur
with the AJ's finding that the actions of the agency following
complainant's reporting of the incident with S1 did not support a
conclusion that the agency did not exercise reasonable care to prevent and
promptly correct the sexually harassing behavior alleged in the instant
case. In further finding that the agency established that it is not liable
for the alleged actions of S1, we note that there was no tangible
employment action against complainant by the agency, and as the harassment
at issue in the instant case consisted of a single, severe incident for
which the agency took prompt and remedial action.[2] See McCurdy v.
Arkansas State Police, 375 F.3d 762, 774 (8th Cir. 2004)(employer's
effective response to a single incident of sexual harassment is sufficient
to shield it from liability). After a careful review of the record, the
Commission finds that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws. We
discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
order.
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 (S0900)
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 (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
_____9-28-06_____________
Date
-----------------------
[1] The record indicates complainant abandoned her retaliation allegation
while the case was pending before the Administrative Judge. In addition,
we find that complainant also abandoned her allegation that she was
subjected to sexual harassment from July 20, 2003 until September 7, 2003.
While complainant was temporarily employed by the agency in Orleans,
California between July 20, 2003 and September 18, 2003, the record
reflects that her only allegation before the AJ regarded the alleged
unwanted sexual touchings by S1 on September 7, 2003. AJ's Decision at 5.
In so finding, we note that complainant's brief on appeal addressed only
the alleged incident between herself and S1 on September 7, 2003.
[2] The Commission notes that S1 was suspended from his supervisory
position from September of 2003 until April of 2004, and he was restored to
the supervisory position only after the external investigation found no
basis for a conclusion of wrongdoing by S1.