07a00005
03-08-2001
Deanna Sebek, Complainant, v. Eric H. Holder, Jr., Acting Attorney General, Department of Justice, Agency.
Deanna Sebek v. Department of Justice
07A00005
March 8, 2001
.
Deanna Sebek,
Complainant,
v.
Eric H. Holder, Jr.,
Acting Attorney General,
Department of Justice,
Agency.
Appeal No. 07A00005
Agency No. I-96-7006
Hearing No. 340-98-3611X
DECISION
Following its November 29, 1999 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.<1>
In this case, an EEOC Administrative Judge (AJ) issued a decision on
September 30, 1999, finding that complainant was subject to a hostile
work environment based on sex (female). The AJ, however, found that
complainant was not subject to a hostile work environment based on age
(51). The agency issued its final order accepting the AJ's finding that
complainant was not subjected to harassment based on age but rejecting
the AJ's finding that complainant was subject to harassment based on sex.
On appeal, the agency requests that the Commission affirm its rejection
of the AJ's finding that complainant was subject to harassment on the
basis of her sex. Alternatively, the agency requests that the Commission
affirm its modification of the AJ's order to award complainant $200,000
in non-pecuniary compensatory damages. For the following reasons,
the Commission modifies the agency's final order.
Complainant, an Administrative Support Service Specialist, employed
by the Department of Justice, filed a formal EEO complaint with the
agency on April 23, 1996, alleging that she was subject to harassment
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. when
on March 25, 1996, she was physically grabbed, pulled 20 feet, and pushed
into a chair by the Director of the INS's Western Service Center (WSC).
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant failed to establish
a prima facie case of harassment based on age because the evidence
indicated that the Director used the same verbally abusive language
with all employees regardless of age. With regard to complainant's
sex based harassment claim, the AJ found that complainant established
a prima facie case of harassment. The AJ found that the Director's
conduct was both objectively and subjectively hostile and abusive, and
sufficiently severe and pervasive to establish a Title VII violation.
In reaching this conclusion, the AJ relied on the testimony of complainant
and another witness that the Director referred to female employees as
�bitches� and the testimony that the Director never physically assaulted
or touched any male employees. After finding that complainant established
a prima facie case of sex based harassment, the AJ then found that the
agency failed to meet its burden to avoid liability. Specifically,
the AJ found that the agency failed to establish that the statements
and conduct alleged by complainant did not occur, or that the Director's
statements and acts were welcome. The AJ relied on the testimony of the
five witnesses who viewed the March 25, 1996 incident. The AJ also noted
that the incident was promptly reported to the Deputy Director and that
the agency failed to taken any disciplinary action against the Director.
Specifically, the AJ noted that the Director continued with his plans
for retirement, which were not prompted by the events in this case,
and was rehired without any break in service, to the same office in the
same facility. Finally, the AJ relied on the �alter ego� theory, under
which the agency is liable for unlawful harassment whenever the harasser
is of a sufficiently high rank to be treated as the organization's proxy.
The AJ stated that since the District Director was the highest ranking
agency employee in the Western Service Center, the agency cannot raise
the affirmative defense and is liable for the Director's conduct, which
is imputed to the agency.
After finding that complainant was subjected to harassment based on sex,
the AJ awarded complainant $9,000 in past pecuniary damages and $200,000
in non-pecuniary damages.
The agency issued a final order accepting the AJ's decision regarding
harassment based on age, but rejecting the AJ's finding that complainant
was subjected to sex based harassment. In its final order, the agency
does not challenge the AJ's finding that the Director forcefully
grabbed complainant and pushed her into a chair. Nor does the agency
dispute that it should have taken immediate action in response to
the Director's actions. The agency, however, does challenge the AJ's
finding that the Director's actions constituted sex based harassment.
The agency claims that the Director had a history of treating both
male and female employees in a hostile manner. In addition, the agency
argues that there is no corroboration for complainant's claim that the
Director called women �bitches� and �whores.� Alternatively, the agency
argues that even if complainant established that she was subjected to
hostile work environment harassment based on sex, she did not provide
adequate evidence to sustain an award of non-pecuniary damages in the
amount of $200,000. The agency argues that an appropriate award for
non-pecuniary damages would be $25,000.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). After a careful review of the record,
we discern no basis to disturb the AJ's finding of discrimination.
The findings of fact are supported by substantial evidence, and the AJ
correctly applied the appropriate regulations, policies, and laws.
The agency argues that the AJ erred in awarding complainant $200,000
in non-pecuniary compensatory damages. Pursuant to the regulation set
forth at 29 C.F.R. � 1614.403(e), the agency must submit the complaint
file to the Office of Federal Operations within 30 days of submission
of an appeal by the agency. �If the complaint was adjudicated by an
Administrative Judge, the complaint file must include copies of all
documents issued by or served on the Administrative Judge, orders from
the Administrative Judge, and motions and briefs on the parties.� Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 9-12 (November 9, 1999).
In the present case, the agency issued its final order on November
29, 1999, and timely filed an appeal with the Commission on December
2, 1999. We note that although the agency challenges the amount of
non-pecuniary compensatory damages awarded by the AJ, it failed to submit
the testimony and exhibits presented by the parties during the damages
phase of the hearing. The AJ's decision states that by agreement of
the parties, evidence in support of and in opposition to claims for
compensatory damages were submitted to the record without a hearing.
Both the hearing transcript and the agency's final order indicate
that with regard to compensatory damages, statements were submitted by
complainant's attorney, a report was submitted by complainant's doctor,
a report was submitted by the agency's doctor, and declarations were
taken of complainant's witnesses.
In August 2000, the Commission contacted the AJ to obtain the necessary
information to decide the issue of compensatory damages. The AJ stated
that upon the conclusion of the case, the entire record was submitted
to the agency. In August and September 2000, the Commission contacted
the agency twice by telephone and requested that the agency submit the
relevant information on compensatory damages. The agency replied that it
did not have the requested information concerning compensatory damages.
Thus, in filing its appeal the only evidence submitted by the agency
regarding the amount of compensatory damages was the report by the
agency's doctor. The EEO Management Directive - 110, Chapter 9, Section
VI (C)(1) (Nov. 9, 1999), provides: �On appeal, the burden is squarely on
the party challenging the [AJ's] decision to demonstrate that the [AJ's]
factual determinations are not supported by substantial evidence.� As
the agency failed to meet its burden of providing a complete record on
appeal, the Commission finds that the agency is barred from challenging
the amount of the AJ's non-pecuniary compensatory damages award.
Finally, we find that the Director's behavior towards complainant in
this case was particularly egregious. In its final order, the agency
acknowledged that it had notice of the Director's history of treating
employees in a hostile manner. We note that despite the agency's
knowledge of the Director's previous hostile treatment of employees and
the egregious behavior by the Director towards the complainant in this
case, the agency rehired the Director within one day of his voluntary
retirement from the agency and less than four months after his physical
attack on complainant. Accordingly, we find that the agency should
provide EEO training, as specified below, in addition to the remedial
relief recommended by the AJ.
The portion of the agency's final order finding that complainant was
not subject to harassment based on sex is REVERSED and we REMAND the
matter to the agency to take corrective action in accordance with this
decision and the ORDER herein.
ORDER
The agency is Ordered to take the following actions:
Restore to complainant all leave, compensation and benefits, including
applicable within-grade increases, cost-of-living increases, etc., for
the period of March 25, 1996 through July 1, 1996, as if she continued
working full-time during this period.
Pay to complainant her reasonable attorney's fees and costs in bringing
this action.
A posting in conforming with Appendix A to 29 C.F.R. 1614.
In addition to make whole relief, complainant is entitled to compensatory
damages pursuant to the 1991 Civil Rights Act as follows:
Past pecuniary damages in the amount of $9,000.00 to compensate for the
costs of psychotherapy treatment.
Non-pecuniary damages in the amount of $200,000.00.
Any expenses incurred in bringing this action, subject to proof.
Conduct EEO training with an emphasis on sex discrimination for the
relevant management officials, particularly the responsible Director
involved herein, at the Western Service Center in Laguna Niguel,
California facility with respect to eliminating discrimination in the
Federal workplace.
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 Western Service Center in Laguna
Niguel, California 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 8, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On 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.