05a10006
01-10-2001
Linda Lans, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Linda Lans v. Social Security Administration
05A10006
January 10, 2001
.
Linda Lans,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Request No. 05A10006
Appeal No. 01980670
Agency No. 47994SSA
Hearing No. 170-95-8304X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Linda Lans
v. Social Security Administration, EEOC Appeal No. 01980670 (August
29, 2000).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).
The previous decision found that complainant was subjected to sexual
harassment when her second-line supervisor struck her on the buttocks and
stated �[w]hen the cat's away, the mice will play.� In its request
for reconsideration, the agency argues that the previous decision
involved erroneous interpretations of material law in two respects.
The agency argued that the previous decision erred when it determined
that sexual harassment occurred without first finding that the touching
of complainant's buttocks was intentional. The agency then argued that
the Supreme Court's holdings in Burlington Industries, Inc. v. Ellerth,
118 S.Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S.Ct. 2275
(1998), as they relate to establishing an affirmative defense, should not
have been applied to the case at hand. Neither argument is persuasive.
We note that while the previous decision did not include a specific
statement that the supervisor's touching of complainant's buttocks was
intentional, this finding was clearly implied. The decision first quoted
Commission guidance which states:
The Commission will presume that the unwelcome, intentional touching of a
charging party's intimate body areas is sufficiently offensive to alter
the conditions of her working environment and constitute a violation
of Title VII....Policy Guidance on Current Issues of Sexual Harassment,
EEOC Notice No. 915-050 at 105 (March 19, 1990).
The decision then went on to find that a coworker witnessed the incident
in question and confirmed that the supervisor smacked complainant on
the right buttock with the back of his hand and simply grinned when
complainant said �You have some nerve.� The decision also determined
that the supervisor then said �Linda, when the cat is away, the mice
will play.� Finally, the decision found unpersuasive the supervisor's
testimony that complainant may have brushed up against him as she
walked by, but that he did not smack her on the buttocks. It cannot be
reasonably argued that the prior decision failed to determine that the
touching was both unwelcome and intentional. After a careful review of
the entire record, we find that the previous decision was correct in
determining that complainant satisfied all five elements necessary to
establish a claim of sexual harassment: (1) she belongs to a statutorily
protected class; (2) she was subjected to unwelcome conduct related to her
gender, including sexual advances, requests for favors, or other verbal
or physical conduct of a sexual nature; (3) the harassment complained
of was based on sex; (4) the harassment had the purpose or effect of
unreasonably interfering with her 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);
see also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We also find no merit to the agency's argument that the prior decision
incorrectly applied Ellerth and Faragher to the case at hand. The agency
argues that in circumstances involving a single incident of harassment
that is immediately reported, the agency cannot successfully assert
the affirmative defense set forth in Ellerth and Faragher, even if
it took immediate corrective action. The agency concludes from this
that it should be allowed to establish an affirmative defense under a
different standard. The agency is correct that when an incident occurs
which rises to the level of harassment, such as the intentional unwelcome
touching of complainant's buttocks in the case at hand, and the employee
promptly complains, the employer will be liable regardless of whether
it takes appropriate corrective action. See EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors,
N-915-002 at 13 (June 18, 1999). As Commission guidance notes, �[t]he
employer will be shielded from liability for harassment by a supervisor
only if it proves that it exercised reasonable care in preventing and
correcting the harassment and that the employee unreasonably failed to
avoid all of the harm. If both parties exercise reasonable care, the
defense will fail.� See id. at 14. The previous decision correctly
determined that complainant immediately reported the supervisor's behavior
to the appropriate agency officials and that the agency therefore failed
to establish an affirmative defense.
Accordingly, as the agency's request fails to meet the criteria set forth
in 29 C.F.R. � 1614.405(b), the decision in EEOC Appeal No. 01980670
remains the Commission's final decision. The agency shall comply with
the Order issued in the previous decision, as restated below. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall take appropriate corrective, curative, and
preventative steps to ensure that no employee is subjected to sexual
harassment, to ensure that appropriate steps are taken immediately after
management is notified of any such harassment, and to ensure the existence
and dissemination of an anti-harassment policy and complaint procedure.
2. The agency shall offer complainant a transfer to the Glen Rock,
New Jersey Branch office, if complainant so requests within sixty (60)
days from the date this decision becomes final. If complainant does
make such a request, the transfer shall be accomplished within thirty
(30) days from the date of the request.
3. Within thirty (30) days from the date this decision becomes final,
the agency shall compute the amount of leave taken by complainant in
response to the sexual harassment and restore that leave. Complainant
shall cooperate in the agency's efforts to compute the amount of leave,
and shall provide all relevant information requested by the agency.
4. The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the Philadelphia, Pennsylvania District
Office. Thereafter, the administrative judge shall issue a decision on
these issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
take final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the administrative judge's decision. The agency
shall submit copies of the decision of the Administrative Judge and the
final agency action to the Compliance Officer at the address set forth
below.
5. 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Glen Rock, New Jersey 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 (K0900)
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)(Supp. V 1993). 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
January 10, 2001
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.