EEOC Appeal No. 0720140004
02-02-2017
Heidi B. v. Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Heidi B.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0720140004
Agency No. HS-10-FEMA-00153
EEOC Hearing No. 480-2012-00791X
DECISION
Simultaneous with its August 27, 2013, final order, the Agency filed an appeal pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Specifically, the Agency asserts that the AJ did not properly apply the Supreme Court's June 2013 rulings in Vance v. Ball State University, 133 S. Ct. 2434 (2013) and University of Texas Medical Center v. Nassar, 133 S. Ct. 2517 (2013). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether substantial evidence in the record supports the AJ's finding that there is a basis for imputing liability for sexual harassment to the Agency; and (2) whether the "but for" standard in Nassar applies to Complainant's Title VII retaliation claim.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Unit Manager at the Agency's Pasadena Joint Field Office in California. Complainant was deployed to Pasadena to work on a disaster. Complainant's first-level supervisor was the HR Unit Leader (S1 - male). Complainant's second-level supervisor was the Finance and Administration Section Chief (S2). Complainant's third-level supervisor was the Federal Coordinating Officer (S3).
In June 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her:
1. On the basis of sex (female) when, on April 6, 2010, S1 exposed her to a full-frontal nudity color photo of himself on her work computer.
2. On the basis of reprisal for prior protected EEO activity (complaining to management on April 6, 2010 about sexual harassment) when, subsequent to April 6, 2010, S2 refused to issue her a performance evaluation and otherwise created a hostile work environment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. The AJ held a hearing from March 26-29, 2013. On April 23, 2013, the AJ issued a non-final bench decision on liability and damages. On July 24, 2013, the AJ issued a final decision on liability, remedies, and attorney's fees.
AJ's Decision on April 23, 2013
I. Claim 1 - Liability for Sexual Harassment
Regarding the April 6, 2010, incident and Complainant's response to the incident, the AJ found the following: Complainant shared an office with S1 and sat approximately three feet away from him. In the morning, S1 insisted on getting Complainant a larger computer monitor, even though she was satisfied with the laptop she had been using. In the afternoon, S1 instructed Complainant to go to the shared drive and familiarize herself with everything on the drive. When Complainant opened a folder on the shared drive, she was exposed to a full-frontal nude color photo of S1 in a Santa hat holding a candy cane next to his exposed penis. Complainant complained about the incident to her former first-level supervisor (FS1). Complainant did not complain to S2 because she had prior problems with S2 and knew that S2 socialized with S1 (at work and outside of work).
Regarding the Agency's response to the April 6, 2010, incident, the AJ found the following facts: On April 6, 2010, after learning about the incident from Complainant's coworker, S2 had a 10-minute meeting with S1 and moved him to a separate office. Although S2 identified the meeting as a counseling session, there was no written record of the meeting. Although S1 was no longer seated next to Complainant, he remained in the work area. S2 did not tell S3 about the incident. On April 6, 2010, after learning about the incident from FS1, S3 sent S1 home immediately and directed S1 to work from home until further notice. On April 7, 2010, S2 told Complainant that the nude photo could be misconstrued and that if she could not do her job, to let S2 know and management would release her from the assignment. On August 10, 2010, after investigating the incident, the Agency terminated S1, not for sexual harassment, but for violating information technology policies. In late 2010, the Agency newsletter included a picture of S1 in a tribute to veterans who worked for the Agency. Although the Agency's sexual harassment policy states that management should immediately contact OER after receiving allegations of sexual harassment for advice and to ensure that appropriate investigative actions are undertaken, management did not immediately contact OER after receiving Complainant's allegation of sexual harassment.
Based on the above, the AJ found that Complainant was subjected to unwelcome conduct by S1 on the basis of her sex that was sufficiently severe to create a hostile work environment. Moreover, the AJ found that there was a basis for imputing liability to the Agency.
In finding liability, the AJ applied the standard of liability for harassment by a supervisor that does not result in a tangible employment action. Specifically, the AJ found that the Agency was vicariously liable for S1's actions because it did not prove, by a preponderance of the evidence, both prongs of the affirmative defense: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. Regarding prong (1) of the affirmative defense, the AJ found that the Agency did not correct promptly the harassing behavior because, although the Agency removed S1 from the workplace promptly, it did not take any action whatsoever to prevent further harassment in the form of retaliation or make sure that there was not a similar incident of sexual harassment in the workplace, albeit by another employee. The AJ found that, instead of communicating to or educating the rest of the staff that such actions were against Agency policy and would not be tolerated, the only thing that happened was that S1 disappeared.
II. Claim 2 - Retaliation
Regarding S2's conduct towards Complainant after April 6, 2010, the AJ found the following: S2, in violation of Agency policy, refused to provide Complainant with a performance evaluation after she was deployed to Pasadena. S2 withheld the performance evaluation because Complainant had complained to FS1, instead of her, about S1. S2 told Complainant that she wanted to transfer her to a disaster assignment in a different state. On an ongoing, daily basis for approximately five months, S2 engaged in petty criticisms of Complainant's work, singled her out, and falsely criticized her performance to other management officials.
Based on the above, the AJ found that Complainant was subjected to unwelcome conduct by S2 on the basis of her prior protected EEO activity that was sufficiently material to deter protected EEO activity. Moreover, the AJ found that there was a basis for imputing liability to the Agency.
AJ's Decision on July 24, 2013
The AJ addressed the Supreme Court's June 2013 rulings in Vance and Nassar, which had been issued after her non-final bench decision on April 23, 2013.
The AJ did not discuss Vance and Nassar with respect to claim 1 (sexual harassment). With respect to claim 2 (retaliation), the AJ found that S2 was a "supervisor" within the meaning of Vance and thus there was a basis for imputing liability to the Agency for retaliation. In addition, the AJ found that Complainant satisfied the "but for" causation standard for retaliation set forth in Nassar, in event that the Commission decided to retroactively apply Nassar.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ did not properly apply the Supreme Court's Vance and Nassar decisions in finding sexual harassment and retaliation.
Regarding claim 1, the Agency argues that S1 did not meet the definition of "supervisor" under Vance and therefore, if S1 was considered a coworker rather than a supervisor, it was not liable for S1's conduct because it took immediate and appropriate corrective action. Specifically, the Agency asserts that it took the following actions: (a) on the day the incident occurred - it moved S1 out of the office he shared with Complainant, it met with S1, it removed the nude photo from the shared drive so no one else could view it, and it sent S1 home so that he never returned to work at an Agency facility (and was officially terminated four months later); and (b) two days after the incident occurred - it "informed [the] staff about [S1]'s release and that Headquarters was addressing the situation."
Regarding claim 2, the Agency argues that Complainant did not establish a prima facie case of retaliation under the "but for" standard in Nassar. Specifically, the Agency asserts that the animosity between Complainant and S2 began in March 2010, prior to Complainant's protected EEO activity and therefore Complainant could not show that S2's actions after April 6, 2010 were based solely on an intent to retaliate against Complainant.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Ch. 9, � VI.B.
ANALYSIS AND FINDINGS
Claim 1 - Agency Liability for Sexual Harassment
On appeal, the Agency argues that S1 did not meet the definition of "supervisor" under Vance, that S1 was considered a coworker rather than a supervisor, and that it was not liable for S1's conduct because it took immediate and appropriate corrective action.
With respect to conduct between fellow employees, an agency is responsible for acts of sexual harassment in the workplace where the agency knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See 29 C.F.R. � 1604.11(d). Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, � V.C.1 (June 18, 1999). One example of a measure to correct the effects of the harassment is monitoring treatment of the employee to ensure that she is not subjected to retaliation by others in the workplace because of the complaint of harassment. See id.
Assuming, arguendo, that S1 was a coworker rather than a supervisor, we find that the Agency is still liable for S1's actions because it knew about S1's conduct and did not take immediate and appropriate corrective action. Specifically, we find that the Agency took remedial measures to stop the harassment, but did not take any remedial measures to correct its effects on Complainant or ensure that similar sexual harassment by another employee did not take place. We note that the AJ found the following: the Agency removed S1 from the workplace promptly; the Agency did not take any action to prevent further harassment in the form of retaliation; and the Agency did not communicate to or educate the rest of the staff that such sexually harassing conduct was against Agency policy and would not be tolerated. We find that the Agency, on appeal, has not demonstrated that the AJ's findings are not supported by substantial evidence in the record. In particular, with respect to the Agency's assertion that it promptly "informed [the] staff about [S1]'s release and that Headquarters was addressing the situation," we note that absent is any reference to sexual harassment.
Based on the above, we find that substantial evidence in the record supports the AJ's finding that there is a basis for imputing liability for sexual harassment to the Agency.
Claim 2 - Applicability of Nassar to Complainant's Title VII Retaliation Claim
On appeal, the Agency argues that Complainant did not establish a prima facie case of retaliation under the "but for" standard in Nassar.
In Nita H. v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623). These federal sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. � 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. � 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin").
Based on the above, we reject the Agency's argument that the "but for" standard in Nassar applies to Complainant's Title VII retaliation claim. Accordingly, we find that the Agency, on appeal, has not demonstrated that the AJ erred in finding retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and AFFIRM the AJ's finding of sexual harassment and retaliation. We REMAND the matter to the Agency for further processing 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 is issued:
1. The Agency shall issue Complainant an "Outstanding" performance evaluation for the Pasadena disaster deployment.
2. The Agency shall pay Complainant $50,000.00 in non-pecuniary compensatory damages.
3. The Agency shall pay Complainant's attorney $40,950.00 in attorney's fees.
4. The Agency shall provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws, particularly sexual harassment and retaliation;
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
POSTING ORDER (G1016)
The Agency is ordered to post at its Pasadena Joint Field Office 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 was issued, 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 (H1016)
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 the date this decision was issued. 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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/2/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A.3 (Aug. 5, 2015). The Agency did not specifically challenge the AJ's factual findings regarding the sexual harassment claim, the AJ's factual findings regarding the retaliation claim, or the AJ's remedies (issue an outstanding performance evaluation to Complainant for the Pasadena disaster deployment, pay Complainant $50,000 in non-pecuniary compensatory damages, pay Complainant's attorney $40,950 in attorney's fees, post a notice about the finding of discrimination, provide EEO training, and consider discipline). Accordingly, we exercise our discretion not to address them in our decision and will focus on the Agency's arguments regarding liability for the sexual harassment claim and the correct legal standard for analyzing the retaliation claim.
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