0120123232
05-21-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123232
Agency No. 200J05062011104171
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 1, 2012 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. For the reasons that are set forth below, we REVERSE the Agency's final decision in this case.
ISSUE PRESENTED
Whether the Agency established that it took immediate and appropriate corrective action upon being notified that Complainant had been subjected to harassing conduct by a co-worker?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Assistant Human Resources Officer, GS-13 at the Agency's Human Resources Management Service at the Veteran's Affairs Medical Center in Ann Arbor, Michigan. On August 22, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (female) when she was sexually harassed from February 2011 through July 19, 2011 by another employee. The employee responsible for the harassment (H1) was a housekeeper whose area of responsibility included Human Resources (HR) where Complainant worked. He came into her office daily to clean. H1 frequently made explicit comments about Complainant's body, clothing, and general appearance. He also made comments that were sexual in nature. The comments would include statements like: "Your body sure looks nice today;" "Does your husband know you are wearing that, because if you were mine I would have pulled you back into bed;" and "You're working that skirt." According to Complainant, each time, she responded to the comments in various ways, all of which expressed her disapproval. One time Complainant told her supervisor (S1) that she thought H1 was "rather annoying," but did not go into detail.
On or around July 19, 2011, Complainant saw H1 enter the HR office to clean. She left her office and went to sit in a coworker's cubicle to wait for H1 to finish cleaning her area. After cleaning one office, H1 came to the coworker's cubicle. Upon entering, he faced Complainant and reached over her for the trash can. Complainant advised him that she would move out of his way, but he continued to lean over her, placing his legs on the outside of her legs and began rubbing against her with his legs and gyrating his hips. Complainant backed up and yelled, "What are you doing?" The coworker witnessed the event and stated that H1 began rubbing his chest against Complainant, as she complained even louder. The coworker told him that he should stop and that if he got any closer he was going to be on top of Complainant. H1 laughed and said, "Well if I got on top of her it wouldn't be no accident. She'd like it." Complainant responded that this was disgusting, to which H1 told her she knew she liked it.
Complainant went immediately to her first level supervisor (S1) and told him what just occurred, and advised him of previous issues with H1. According to Complainant, S1 took no action aside from advising her that that she would have to deal with the problem herself by speaking to H1's supervisor or H1 directly. S1 alleges that he asked Complainant if she wanted his assistance, but that she declined telling him that she was going to take action to have H1 re-assigned. Complainant tried to contact H1's second level supervisor (A2) without success. The following day, on July 20, 2011, Complainant went directly to H1's third level supervisor, A3. She told him what happened. A3 advised Complainant that H1's supervisors would contact her, and that reassignment of H1 would happen right away and discipline would be proposed.
Immediately following this conversation, A3 contacted A2 and directed him and H1's first level supervisor, A1, to move H1 out of Human Resources immediately pending an investigation into the allegations. Complainant was contacted by A2 and A1 and she advised them that she wanted the matter dealt with at the lowest possible level, and that she simply wanted H1 spoken to about his actions and moved. A2 explained that moving H1 alone was insufficient, and that they would also need a written statement from her about H1's actions in order to propose disciplinary action to keep him for engaging in this type of conduct in the future. Complainant reluctantly agreed to prepare a written statement. H1 was immediately transferred to work in another area.
After being contacted by a Union representative, Complainant spoke to A2 about her concerns of a breach in confidentiality. A2 was unresponsive to these allegations, as he did not agree that management had breached Complainant's confidentiality. Complainant went to the EEO Program Manager (PM) to tell her that she did not feel the incident was being handled appropriately. She specifically complained about being told to handle the matter herself by S1. While PM contradicted some aspects of Complainant's account of their discussion, she felt it was inappropriate for Complainant to have been told by her supervisor to handle her own complaint. She contacted the Associate Director (AD), who supervises S1 and A3, to discuss the way the matter was handled. AD made arrangements to convene an independent fact finding investigation into the allegations. On July 28, 2011, based on preliminary inquiries, A2 proposed that H1 receive a reprimand as discipline for his misconduct. This recommendation was held in abeyance pending the outcome of the fact finding investigation.
On July 29, 2011, AD appointed a Quality Assurance Officer (QAO), to be the investigating officer. She was charged with investigating Complainant's sexual harassment allegation, and management's initial handling of the matter. QAO issued a report of findings, conclusions, and recommendations on August 15, 2011. The report confirmed that H1 had sexually harassed Complainant as alleged. The report also concluded that S1 failed to follow established protocol when Complainant first brought her sexual harassment complaint to his attention. Finally, QAO reported that the report was inconclusive as to whether management had breached confidentiality by improperly disclosing Complainant's identity during the initial fact finding process. The report recommended "appropriate disciplinary or other administrative action" against H1 for sexual harassment; "appropriate action" against S1 for failing to follow established sexual harassment protocol; "appropriate action" for employees who delayed reporting H1's earlier conduct; and made no recommendations regarding the alleged breach of confidentiality.
In response to the report, AD issued S1 a written counseling for his failure to respond proactively to Complainant's allegations. H1's supervisors decided that he should be suspended for his actions and proposed a five-day suspension on September 12, 2011. On September 16, 2011, H1 tendered his resignation and did not serve the suspension.
In response to Complainant's formal complaint, the Agency issued a final decision (FAD) that found it was not liable in the instant matter for the actions that occurred because it took prompt, appropriate, and effective action in response to Complainant's reports. Specifically, the FAD found that while S1 did not respond appropriately to Complainant's allegations of sexual harassment, upon completion of the investigation which confirmed this fact, S1 was issued a written counseling for his failure to take action when Complainant first advised him of her complaint. With respect to the ultimate corrective actions that were taken, the FAD determined that these actions were sufficient. According to the Agency, there was nothing in the record that suggests H1 continued to harass Complainant after July 19, 2011.
On appeal, Complainant argues that her complaint was not handled properly and taken seriously because she was a woman. She submits that no action was taken until she pushed the matter with the supervisory levels above S1.
ANALYSIS & FINDINGS
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 Chapter 9, � VI.A. (November 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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 2). (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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).
In the case of co-worker harassment, an Agency is liable for the harassment when it "knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. � 1604.11(d). Whether the Agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment.
At the outset, we note that The Agency, in its final decision (FAD), conceded that the first four elements of the harassment claim were met by Complainant. Therefore, the only matter at issue is element (5), i.e., whether there is a basis for imputing liability to the employer. Upon review of the record, we find that the Agency failed to take immediate and appropriate corrective action in this case and therefore, the Agency is liable for H1's conduct. Although the matter of S1's inaction was acknowledged and addressed by Agency management, we find that initial inaction by S1 to be the reason that liability attaches to the Agency. The Agency cannot argue that it took immediate corrective action to end the harassment when its own investigation shows that S1 failed to follow the Agency's established sexual harassment protocol. Although the Agency subsequently responded in an appropriate manner, this response was not immediate. Complainant was left on her own to seek relief from the harassment. The Agency may not remove the effect of this initial inaction, i.e., avoiding liability, by its subsequent actions.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to REVERSE the Agency's final decision and REMAND the case to the Agency to take remedial actions in accordance with this decision and the Order below.
ORDER
The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final, unless otherwise stated:
1. The Agency shall give Complainant notice of her right to submit evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall issue a final decision on compensatory damages pursuant to 29 C.F.R. � 1614.110(b).
2. The Agency shall conduct training for S1 regarding his obligations under Title VII with special emphasis on management responsibilities with regard to claims of discriminatory harassment/hostile work environment.
3. The Agency shall consider taking disciplinary action against S1 above what was issued previously. The Agency shall report its decision. 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.
POSTING ORDER (G0914)
The Agency is ordered to post at its Human Resources Management Service at the Veteran's Affairs Medical Center in Ann Arbor, Michigan copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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
___5/21/15_______________
Date
2
0120123232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123232