Deanna Sebek, Complainant,v.Eric H. Holder, Jr., Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 8, 2001
07a00005 (E.E.O.C. Mar. 8, 2001)

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.