01966875
10-01-1998
Lulverne M. Tom, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Lulverne M. Tom v. Department of Health and Human Services
01966875
October 1, 1998
Lulverne M. Tom, )
Appellant, )
) Appeal No. 01966875
v. ) Agency No. IHS 549-94
)
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of sex (female), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is REVERSED AND REMANDED.
ISSUE PRESENTED
The issue on appeal is whether the agency took prompt and remedial action
in response to appellant's allegation that she was sexually harassed
by the Lead Cook (LC) after the LC allegedly asked her out on a date in
or around November of 1993, grabbed appellant around her shoulders and
attempted to hug her on December 10, 1993, rubbed his body up against
hers on prior occasions, and made offensive statements of a sexual nature
to appellant.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a WG-7408-2 Food Service Worker at the agency's Indian Health Service,
Navajo Area Office, Indian Hospital, Gallup Service Unit, Administrative
Branch, Dietary Section, Gallup, New Mexico. Appellant had commenced
temporary employment with the agency in June of 1990, and her assignments
were renewed annually, until June of 1994. Appellant stated that after
the most recent incidents of sexual harassment by the LC, which she
alleged occurred in November and December of 1993, she approached the
Cook Supervisor (S1) and informed him about the LC's acts of sexual
harassment. According to appellant, agency management officials did
nothing to address her concerns, other than provide her a list of EEO
counselors, and due to their inaction, she sought EEO counseling.
During EEO counseling, appellant provided a written statement,
alleging that the LC first engaged in offensive conduct of a sexual
nature approximately six months after she had commenced temporary
employment with the agency. Appellant alleged that the LC would rub
his hands on her back looking for her bra strap, and grasp her hands or
poke her sides when he approached her and whisper "ok" when walking by.
Appellant alleged that the LC stated to her that he had "wet dreams"
and that he was "saving a notch in his bed for [her]." Appellant stated
that the LC told her to tell her husband that she was working overtime
so that she could go out with him. Appellant also alleged that when she
was carrying an egg roll three inches round and sixteen inches long,
the LC degraded her sex life and implied that he could "satisfy" her.
Appellant further indicated that the LC "physically assaulted" her
on two occasions, once when he jumped out and startled her after she
sought his assistance retrieving styro-foam cups in the storage room,
and again following an overtime shift when the LC grabbed her around
the shoulders, attempted to hug her, and she jerked away from him.
Appellant noted that the LC had participated in EEO training, but that
he continually made a joke of it.
In a subsequent written statement by appellant prepared on or around
March 30, 1994, she again stated that the above-referenced hugging
incident occurred prior to her departure, after working overtime on
December 10, 1993, and that no one was present to witness the incident.<1>
Appellant indicated that she brought this incident to the attention of
S1 on January 14, 1994. According to appellant, S1 informed her that he
was attempting to contact the (now former) Dietetic Branch Chief (FBC),
and that subsequently, S1 provided her a list of EEO counselors.
In September of 1995, appellant provided an affidavit to the agency's
investigator. In her affidavit, appellant stated that the LC harassed
her physically and verbally, and that the agency did nothing, even
though she had communicated this to the FBC and the current Dietetic
Branch Chief (BC). Appellant did state, however, that the FBC offered
her employee assistance counseling. Appellant indicated that when
she and other female employees were setting up the food service line,
the LC would come out, stand there, and stare at them. When they
walked away, appellant alleged that the LC said "what's the matter,
did I scare you off?" Appellant also alleged that the LC would pass
through the line and rub his body against hers or touch her on the side.
Appellant also stated that occasionally, the LC would engage her in "a
very explicit conversation, that was offensive for me to hear or listen
to." Appellant indicated that she had heard that other females had
previously complained about the LC's conduct. Appellant stated that
when she was cleaning the grill, the LC approached her from behind and
stated "I like to see you up there like that." Appellant stated she felt
uncomfortable around the LC, and always wondered where he was when she
was in his vicinity. Appellant also described the previously-referenced
"styro-foam cup" incident. Finally, appellant stated that she believed
another female co-worker (CW1) had been sexually harassed by the LC.
The LC stated that he had been friendly with appellant since she first
arrived, and that he had spent time with her, helping show her how to
perform some of the required job duties. The LC stated that many of
appellant's co-workers were Navajo Indians (Navajo), and noted that
Navajos generally do not get along well with Hopi Indians (Hopi),
and appellant was a Hopi Indian. The LC, as a Zuni Indian (Zuni), got
along well with her. The LC stated that he had loaned appellant money
on a number of occasions, and when she failed to pay back the money,
he stopped loaning money to her. The LC indicated that he was unaware
that appellant felt uncomfortable with him, and she had never complained
to him or their supervisors about his conduct. The LC stated that he
ceased any physical contact or verbal communication with appellant after
he was informed that it was unwelcome.
The LC noted that in 1987, a similar incident of alleged sexual
harassment was raised by other female employees, and that during that
time, he had been going through a difficult divorce and was, and is,
a recovering alcoholic. The LC stated that after the 1987 incidents,
he was cautioned by the FBC about his conduct with or around female
employees and was required to attend annual EEO training programs.
The LC stated that he was aware that appellant was married and that
he would never interfere with someone's marriage. The LC stated that
appellant used to tell him stories of a former co-worker of hers who
filed EEO complaints against her supervisor, and that he took that as
a threat to cooperate with her or forget about the money she owed him.
The LC stated that he has a hearing problem in one ear and he has been
counseled about watching how loud he yells at other employees. The LC
believed that language and cultural differences among the various Indians
lead to mis-communications and occasionally caused conflicts and hurt
feelings. The LC felt that the female employees, including appellant,
expressed resentment when he attempted to seek reimbursement for the
loans he provided female employees.
A female cook (WIT1) stated that she did not witness the LC ask appellant
on a date or touch appellant. WIT1 indicated that appellant informed her
that the LC had asked her out. WIT1 also indicated that she, as well
as appellant, had borrowed money from the LC. WIT1 indicated that in
1987, she complained about LC's conduct toward her, but that since then,
the LC has not acted inappropriately toward her.<2>
The agency Health Service Administrator (HSA) stated that he did not learn
of appellant's complaint until he was contacted by the EEO counselor.
The HSA indicated that upon learning of the complaint, the LC was removed
from the dietary section for thirty days on March 4, 1994, pending an
investigation. The HSA stated that he and the former Health Service
Administrator (FHSA) discussed terminating the LC, but instead agreed to
recommend a thirty day suspension for the LC to the agency's area office.
The area office recommended a ten day suspension without pay.
The BC stated the she did not become aware of appellant's allegation until
she was informed of its existence by the FBC in May or June of 1994, while
the FBC was training her to assume the position. The BC also indicated
that the LC was a good employee, and the BC believed that the LC loaned
money to appellant and other female food service workers to gain their
confidence, as many of the other female employees were Navajo whereas
the LC was Zuni. The BC stated that she believed that appellant, along
with the LC, would tell dirty jokes, and that the LC did not sexually
harass appellant. The BC indicated that appellant's contract with the
agency expired in June of 1994, and she believed that appellant filed
the instant EEO complaint in an effort to avoid paying back the LC.
The FBC indicated that she became aware in January of 1994, not from
appellant, but from S1, that the LC had asked appellant out on a date,
and that she and the LC were having problems, though she was unaware of
any touching incidents between the LC and appellant. The FBC was aware
that the LC had loaned money to some of the female employees, and she
counseled him about his practice of loaning money to female employees.
The FBC stated that she was on leave at the time appellant spoke to S1,
and she instructed S1 to obtain more information from appellant, and to
inform her to seek EEO counseling if she felt so inclined. FBC admitted
that she did not keep detailed records of her conversations with the LC,
but that appellant never provided any formal documentation to her about
the specific problems she was having with the LC. FBC stated that she
only learned the true extent of appellant's complaint from the HSA and
the EEO counselor. The FBC believed that cultural differences among
the various Indians may have impacted relations between appellant, her
co-workers, and the LC. The EEO counselor noted that the FBC stated
that: "[the LC] is a good worker, and very smart, but one of these days
he will lose his job." The FBC also indicated that she had previously
counseled the LC about his temper and how his hearing problem could
be misperceived by female employees as him ignoring them if he did not
inform these employees about his hearing problem. The FBC stated that
she has previously counseled the LC about his conduct or perceived
conduct around female employees on more than one prior occasion.
The FHSA stated that he was aware of appellant's complaint, and that he
had not received any complaints from other female employees about the
LC's conduct. The FHSA corroborated the HSA's statements concerning
the removal of the LC from the department on March 4, 1994, and the
disciplinary action imposed on the LC. The FHSA also indicated that with
the permission of the female employees, the LC was permitted to return
to his original position as long as he respected Title VII. The FHSA
stated that the FBC never brought to his or the HSA's attention the fact
that appellant and the LC were not getting along. The FHSA indicated
that the FBC was attempting to keep the matter in-house, and that it
was difficult for the FBC to proceed since appellant was unwilling to
cooperate. The HSA indicated that, as a former EEO counselor, the FBC
was committed to Title VII.
CW1 stated, contrary to appellant's representation, that even though the
LC occasionally told jokes, she was not offended by the LC's actions
or statements. CW1 stated that she gets along well with the LC, but
she knows that other female employees do not get along well with the LC
and who find that he is difficult to work with. CW1 also stated that
the female employees often talk in Navajo in front of the LC, and that
he does not like that. Another co-worker (CW2) stated that appellant
informed her that the LC had asked her out on one occasion and touched
her, but that she, herself, was unaware personally of such conduct by
the LC or any other complaints by female co-workers about LC's conduct.
We also note that the counselor's report contains statements from other
employees who were not interviewed by the investigator, which provide
that, among other things, the LC "enjoys touching women," "enjoys telling
dirty jokes," "brushes up against women," and "likes to touch the hands
and body of women". Other statements obtained by the EEO counselor
provide that the LC is a good worker and that the appellant tells lies
about her job and other people. Finally, we note that S1 stated to the
EEO counselor that the LC "is really rough with women," the LC "attempts
to touch or grab the women," and that "[the LC] needs to be counseled
or be removed for his behavior."
The EEO Counselor's report was completed and signed on March 8, 1994,
and just prior to its completion, the agency separated the LC from
appellant on March 4, 1994. Ultimately, the agency proposed a ten day
suspension for appellant in June of 1994, and rejecting the LC's appeal,
LC served the suspension in August of 1994.
Believing she was a victim of sexual harassment, appellant filed an EEO
complaint on March 28, 1994. At the conclusion of the investigation,
appellant received a copy of the investigative file and requested that
the agency issue a final decision. The FAD concluded that appellant
established a prima facie case of sexual harassment. The agency then
concluded that because it took immediate and appropriate corrective
action when it became aware of acts of sexual harassment by a co-worker of
appellant, it was therefore not liable for the acts of sexual harassment
by the LC. The agency noted it referred appellant to EEO counseling after
she refused to provide a written statement to S1. The agency also noted
that it proposed a thirty day suspension, and ultimately, the LC served
a ten day suspension for his actions. On appeal, appellant expressed
her dissatisfaction with the agency's decision, reiterated the fact that
she suffered emotional distress from the harassment, and requested more
time to submit additional arguments.<3> The Commission notes that there
are no additional appeal documents in the record. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
The Supreme Court has established that sexual harassment in the
workplace violates Title VII and is actionable as a form of sex
discrimination. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). To establish a prima facie violation of Title VII based on
sexual harassment, appellant must show: (1) that she belongs to a
statutorily protected group; (2) that she was subjected to sexual
harassment in the form of unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment complained of was based on sex; and (4) that
submission to such conduct was made either explicitly or implicitly a
term or condition of appellant's employment or was used as a basis for
employment decisions affecting appellant, or the conduct unreasonably
interfered with her work performance or engendered an intimidating,
hostile or offensive working environment. 29 C.F.R. Section 1604.11(a);
Quintero v. United States Postal Service, EEOC Appeal No. 01960836
(April 21, 1998); Jones v. Flagship International, 793 F.2d 714, 719-722
(5th Cir. 1986); Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th
Cir. 1982); see also Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981)
Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).
Regarding the fourth element, it is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents
will not be regarded as creating a discriminatory work environment. See
Walker v. Ford Motor Company, 684 F.2d 1355, 1358-9 (11th Cir. 1982);
Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981). However,
as is set forth in the EEOC Policy Guidance on Current Issues of Sexual
Harassment, N-915-050, No. 137 (March 19, 1990), "a single, unusually
severe incident of harassment may be sufficient to constitute a Title
VII violation." Our guidance states further:
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. More so than in the case of verbal advances or remarks,
a single unwelcome physical advance can seriously poison a victim's
working environment.
Id. In its FAD, the agency stated that appellant established a prima
facie case of sexual harassment. Accordingly, we will not disturb the
agency's conclusion which is supported by the record.
In order to avoid liability for hostile environment sexual harassment,
the agency must show one of the following: (1) the acts or conduct
complained of did not occur; (2) the acts or conduct complained of were
not "unwelcome;" (3) the alleged harassment was not "sufficiently severe
or pervasive" to alter the conditions of the victim's employment and
create an abusive working environment; (4) immediate and appropriate
corrective action was taken as soon as the employer was put on notice;
and/or (5) there is no basis for imputing liability to the employer
under agency principles. Quintero v. United States Postal Service, EEOC
Appeal No. 01960836 (April 21, 1998). See also Meritor Savings Bank,
F.S.B. v. Vinson, 477 U.S. 57 (1986); EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
With respect to (4) above, we note that the Commission's Regulations
provide that "[w]ith respect to conduct between fellow employees, an
employer is responsible for acts of sexual harassment in the workplace
where the employer (or its agents or supervisory employees) knows
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action." 29 C.F.R. � 1604.11(d).
When an employer becomes aware of alleged sexual harassment, the employer
has the duty to investigate such charges promptly and thoroughly. See EEOC
Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137
(March 19, 1990).; see also Katz v. Dole, 709 F.2d 251, 255-6 (employer
is on notice of alleged harassment once an employee lodges a complaint
and is liable unless it then takes prompt and adequate remedial action).
The remedial action taken by the agency must be prompt and reasonably
calculated to end the harassment. Id. What is appropriate remedial
conduct 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. Dept. Of Air Force, EEOC
Request No. 05920194 (July 8, 1992). The Commission's Policy Guidance
on Current Issues Of Sexual Harassment (March 19, 1990) states that:
When an employer receives a complaint or otherwise learns of alleged
sexual harassment in the workplace, the employer should investigate
promptly and thoroughly. The employer should take immediate and
appropriate corrective action by doing whatever is necessary to end the
harassment, make the victim whole by restoring lost employment benefits or
opportunities, and prevent the misconduct from recurring. Disciplinary
action against the offending supervisor or employee, ranging from
reprimand to discharge, may be necessary. Generally, the corrective action
should reflect the severity of the conduct ... The employer should make
follow-up inquiries to ensure the harassment has not resumed and the
victim has not suffered retaliation.
Additionally, the employer should not only take immediate and appropriate
corrective action to end the harassment, but also make the victim whole
by restoring lost benefits and prevent the misconduct from recurring.
See Quintero v. United States Postal Service, EEOC Appeal No. 01960836
(April 21, 1998). Furthermore, appropriate relief may include taking
steps to ensure that the perpetrator of sexual harassment is no longer
assigned to a common workplace with the victim. See Guerra v. United
States Postal Service, EEOC Appeal No. 01965639 (June 19, 1997). It is
not a remedy for the employer to do nothing simply because the coworker
denies that the harassment occurred. See Fuller v. City of Oakland,
47 F.3d 1522, 1529 (9th Cir. 1995).<4> We also note that an employer
may take remedial action even where a complaint is uncorroborated.
See Knabe v. Boury Corp., 114 F.3d 407, 413 & n.11 (3d Cir. 1997).
In its FAD, the agency concluded that it took prompt remedial action in
response to appellant's allegation, and that it therefore was not liable
for the alleged incidents of sexual harassment by the actions of one of
appellant's co-workers, the LC.<5> Based on the totality of the evidence,
however, the Commission disagrees with the agency's determination that
it took prompt, remedial action.
After appellant approached S1 on or around January 14, 1994, to complain
about the LC's sexually harassing behavior toward her, S1 contacted
the FBC who was on annual leave.<6> According to the FBC, she asked
S1 to attempt to resolve the problem and to obtain a written statement
from appellant. The FBC indicated that when appellant would not provide
a written statement to S1, she advised S1 to provide her with a list of
EEO counselors. The FBC returned from leave and recommended counseling
to appellant, who refused. The FBC stated that she asked appellant to
provide a written statement, which appellant did not do. The FBC also
indicated that she spoke to the LC about appellant's allegations, but did
not keep written notes concerning their conversation. The FBC stated:
"Concerning this complaint, I was under the distinct impression that
it was a one time occurrence, that is, about being asked for a date by
[the LC]." The FBC also indicated, in this regard, that the cultural
'interplay' between members of the various Indian nations may have played
a role in the relationships and alliances between and among the various
food service workers and the LC.
Notwithstanding the perceptions agency management officials may have
had respecting cultural differences between the various Indian nations,
the Commission notes that the FBC knew that LC had been previously
accused of similar acts of sexual harassment by other female employees
in 1987. As a result of these allegations, the FBC gave the LC verbal
and written counseling, and required him to attend annual EEO training.
The Commission also notes that S1, in his statement to the EEO counselor,
stated that he believed that the LC was rough with women, that the LC
talks dirty with the female employees, that the LC attempts to touch or
grab the female employees, and that he needs to be counseled or removed
for his behavior.
The record reveals that after appellant approached S1, a Cook Supervisor,
on January 14, 1994, and made allegations of sexual harassment against
the LC which were similar to the allegations made against the LC by
other female employees in 1987, S1's only action was to contact the FBC,
who was on leave. The FBC instructed him to attempt to secure a written
statement from appellant, and, ultimately, to provide her a list of EEO
counselors. Neither FBC nor S1 conducted an investigation or interviewed
any other staff to determine the veracity of appellant's allegations.
Additionally, neither the FBC nor S1 contacted the HSA or other higher
level management official about appellant's allegations. While we
note that the FBC stated that she spoke to appellant and recommended
employee assistance counseling, and additionally, spoke to the LC about
the allegations she made against him, we find that, given the prior
history of the LC with respect to his conduct around female employees,
which the FBC was personally aware of, and the nature of the most recent
charges by appellant, including inappropriate touching, S1 and the FBC
did not act in a sufficiently prompt manner so as to avoid liability
under Title VII.<7>
We further note that it was not until the EEO counselor had conducted its
investigation, and the counselor's report was all but completed, that
agency management officials took the additional action of separating
the parties and removing the LC from the department on March 4,
1994, and ultimately, suspending the LC for ten days in June of 1994.
The agency's response to appellant's allegations, as indicated by S1 and
the FBC, was wholly inadequate when it was again faced with allegations
of sexual harassment by the same perpetrator. The circumstances here
required the agency to immediately separate the parties, and commence
an investigation as to whether or not there was sufficient evidence to
corroborate appellant's allegations, and warrant disciplinary action and
EEO sensitivity training for the alleged harasser. The responsibility of
agency management officials to investigate charges of sexual harassment
is independent of the EEO complaint process, and cannot be delegated to
an EEO counselor, who him or herself may have a backlog of EEO complaints
to investigate.
Similarly, the agency's reliance on the fact that appellant did not
provide a written statement to S1 or the FBC, as a basis to justify their
inaction with respect to appellant's allegations of sexual harassment,
is also misplaced. While we recognize that a written statement from an
alleged victim could help clarify potentially complex issues of fact,
and may add credibility to her allegations, especially if notes were
kept contemporaneous with the acts of alleged sexual harassment, the
absence of a written statement from the alleged victim does not preclude
agency management officials from taking immediate and prompt steps to
investigate such charges or exonerate the agency from liability.
While appellant did not indicate that she refused to provide a written
statement, neither did she confirm that S1 or FBC requested such a
written statement. The Commission notes that appellant did provide
written statements to the EEO counselor and the EEO investigator.
The Commission also notes that during the EEO Complaint processing stage,
our Regulations provide that an appellant's refusal to provide a written
statement may, under certain limited circumstances, be grounds for the
dismissal of an EEO complaint. See 29 C.F.R. � 1614.107(g). In contrast,
when an agency investigates a charge of sexual harassment, Commission
guidelines provide that those charged with investigating charges of
sexual harassment should obtain specific detail respecting the conduct
alleged to have occurred. No requirement exists that the form of the
detail respecting the conduct must be provided in a written statement
from the appellant. See EEOC Policy Guidance on Current Issues of
Sexual Harassment, N-915-050, No. 137 (March 19, 1990). Where, as here,
an alleged victim does not provide a written statement to a supervisor, a
supervisor should, and S1 or the FBC could have, taken sufficient written
notes of his conversation with appellant so as to enable him, or another
agency official, to investigate her allegations of sexual harassment.
Accordingly, the Commission is unable to find that the agency took
immediate and corrective action when notified of the sexual harassment.
Consequently, the agency cannot avoid liability. In addition, we note
that appellant also raised a claim for compensatory damages for the
harassment. Having reviewed the record, however, the Commission finds
that the evidence is insufficient to allow a determination as to the
amount, if any, of compensatory damages to which appellant is entitled
under the facts of this case. Thus, on remand, the agency shall also
conduct a supplemental investigation regarding appellant's entitlement
to compensatory damages. See, e.g., Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5. 1993).
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we REVERSE the
FAD and remand this case to the agency for further processing consistent
with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to sexual harassment and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment;
The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between the
incident of harassment and any pecuniary or non-pecuniary losses. See,
Carle, supra.<8> The appellant 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 issue a
final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below;
In the event that the LC remains an employee of the agency, the agency
shall provide a minimum of sixteen (16) hours of EEO sensitivity training
with respect to Title VII and sexual harassment;
The agency shall provide a minimum of eight (8) hours of remedial training
for all managers and supervisors located at the Indian Health Service,
Gallup, New Mexico, to ensure that acts of sexual harassment do not
recur, that no retaliatory acts are taken against any employee who
opposes unlawful discrimination, including sexual harassment and that
persons reporting instances of alleged sexual harassment are treated in
an appropriate manner;
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 compensatory damages due appellant, and evidence
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Indian Health Service, Gallup, New
Mexico, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct 1, 1998
_______________ _________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. has occurred at the agency's Indian Health Service,
Navajo Area Office, Indian Hospital, Gallup Service Unit, Administrative
Branch, Dietary Section, Gallup New Mexico. (hereinafter "agency").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The agency supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The agency was found to have discriminated against the individual
affected by the Commission's decision after agency management did
not promptly and effectively investigate the individual's charge of
sexual harassment. The agency shall therefore remedy the violation by
providing proven compensatory damages to the affected individual and
providing EEO sensitivity training to appropriate agency officials and
the alleged harasser. The agency will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The agency will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 We note this statement contains numbered responses to questions
which appear to have been presented to appellant by the EEO counselor
on or around March 30, 1994. We further note that in response to a
letter from the agency's Office of Human Relations dated June 9, 1994,
appellant again indicated that the above-referenced hugging incident
occurred on December 10, 1993.
2 We note that the record reveals that a second female co-worker filed
a similar complaint against the LC contemporaneous with WIT1.
3 The Commission notes that a complainant may raise the issue of
compensatory damages for emotional distress at any time during the
administrative up to and including the appeal stage, but not thereafter.
See Simkins v. United States Postal Service, EEOC Request No. 01942339
(June 29, 1994).
4 We note that in citing to a series of cases discussing sexual
harassment by co-workers, the Supreme Court recently stated that:
"In such instances, the combined knowledge and inaction may be seen as
demonstrable negligence, or as the employer's adoption of the offending
conduct as its results, quite as if they had been authorized affirmatively
as the employer's policy." Faragher v. City of Boca Raton, No. 97-282,
1998 WL 336322 (U.S. June 26, 1998).
5 We note that the record is unclear as to whether or not the LC
was appellant's co-worker or supervisor. In his affidavit, the LC
refers to himself as appellant's supervisor. See investigative file
(hereinafter IF), page 50, paragraph 4. In appellant's affidavit,
she refers to the LC as one of her supervisors. See IF, page 45,
paragraph 2. The organizational chart in exhibit 5 of the investigative
file does not sufficiently clarify the reporting relationships between
the various parties including appellant and the LC. The agency's final
decision stated that LC was appellant's co-worker. Since we find the
agency liable because it knew of the harassment and did not take prompt
remedial action, we need not address the recent Supreme Court decisions
in Faragher, supra, and its companion case, respecting the liability
of an agency or employer when a supervisor commits sexual harassment.
See Faragher, supra; Burlington Industries, Inc., v. Ellerth, No. 97-282,
1998 WL 336326 (U.S. June 26, 1998).
6 We note that our analysis is based on the FBC's affidavit to the
investigator, as well as memorandums from the FBC dated February 25, and
March 30, 1994. S1 did not provide an affidavit to the investigator.
We note that Chapter 5 of our Management Directive 110 require that
agencies develop a "complete and impartial factual record upon which to
make findings on the matters raised by the written complaint." EEOC
Management Directive 110, Chapter 5, Section I, page 5-1 (October,
1992). We note that five individuals who provided statements to the EEO
counselor, including S1, did not provide affidavits to the investigator.
The investigator, however, did refer to these employees' statements to
the EEO counselor in the investigative report.
7 We also note that exhibit 16 of the investigative file contains the
agency's Sexual Harassment Policy, dated June 21, 1995. It is unclear
from the record whether the agency had a policy against sexual harassment
in place at the relevant facility between 1990 and 1994, the time the
allegations of sexual harassment were alleged to have occurred.
8 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. It based this assessment, inter alia, on a review of the
statutory provisions of the Civil Rights Act of 1991 in relation
to one another and on principles of statutory interpretation which
require statutes to be interpreted as a whole. In particular, the
Commission discussed the meaning of the statute's definition of the
term "complaining party" and the significance of the reference to
the word "action" in Section 102(a). In addition to the specific
reasons set forth in Jackson for this holding, Section 2000e-16(b)
(Section 717) of the Civil Rights Act of 1964 (42 U.S.C. � 2000(e)
et. seq.)(CRA) conveyed to the Commission the broad authority in the
administrative process to enforce the nondiscrimination provisions of
subsection (a) through "appropriate remedies." Similarly, in Section
3 of the Civil Rights Act of 1991 (CRA of 1991), Congress refers to
its first stated purpose as being "to provide appropriate remedies for
intentional discrimination and unlawful harassment in the workplace;",
thereby reaffirming that authority. Consequently, it is our view that in
1991, Congress clearly intended to expand the scope of the "appropriate
remedies" available in the administrative process to federal employees who
are victims of discrimination. Moreover, in Section 717(c) of the CRA,
the term "final action" is used to refer to administrative decisions by
agencies or the Commission, as distinguished from the term "civil action,"
used to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirms the holding therein. See Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998).