0120090614
08-26-2011
Kari Moser, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Kari Moser,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120090614
Agency No. FS-2006-00031
DECISION
On December 2, 2008, Complainant filed an appeal from the Agency's September 26, 2011 final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Realty Specialist at a Klamath Falls, Oregon office of the Agency. In a formal EEO complaint dated January 6, 2006, Complainant alleged that the Agency subjected her to hostile work environment harassment (sexual) when it failed to properly discipline a male coworker (C1) who, on September 16, 2005, grabbed her head from behind, turned her around, and kissed her on the lips. Complainant stated that the male coworker C1 had a history of improper behavior toward women, but the Agency failed to take appropriate action against him, which allowed his behavior to escalate to the assault against her. She stated that, on September 20, 2005, she informed her supervisor, the Human Resources Officer, and the Equal Employment Opportunity Officer of the September 16 incident. Complainant stated that she later contacted the local police regarding the matter.
The Agency accepted Complainant's claim for investigation. During the Agency's investigation, Complainant stated that, at a party in 2004, C1 invaded her personal space, caressed her arm, and whispered into her ear; and she told him it made her feel uncomfortable. Complainant reiterated that improper contact by C1 with women in the Agency was not uncommon.
The Acting Civil Rights Program Manager (S1) stated that, in 1999, he was C1's second level supervisor and he observed C1 massaging the shoulders of a female coworker. S1 stated that C1 told him that the coworker asked for the massage, but he still verbally counseled C1 that such contact was inappropriate in the workplace. In addition, S1 stated that, years ago, another female employee stated that C1 put his arm around her shoulders and she did not like it. S1 stated, however, that the female worker wanted to handle the matter herself. S1 stated that he is not aware of any additional inappropriate activity by C1, until the incident with Complainant. S1 stated that, on September 28, 2005, he contacted C1 and instructed him to stay away from Complainant and not to communicate with her. S1 stated that he tried to ensure Complainant's safety and that the Agency's Human Resources Officer (S2) conducted an investigation regarding Complainant's allegation.
S2 stated that Complainant contacted her on September 20, 2005 alleging that C1 turned her around in her chair and kissed her forehead. S2 stated that Complainant, at that time, did not allege that C1 kissed her on the lips. S2 stated that she attempted to contact C1 via telephone but was unable to reach him. In a Letter of Instruction dated September 27, 2005, S2 informed C1 that his behavior of September 16 was sexual harassment and that he should not contact Complainant at work. Both S1 and S2 stated that C1 was retiring in several days, the end of September, so they could not do much more discipline to C1 than a Letter of Instruction.
The record contains a statement from C1 from the Agency's internal sexual harassment investigation. C1 stated that he knows Complainant's husband and has known Complainant for over 20 years. He stated that, on September 16, he stopped in Complainant's office to see whether she and her husband were coming to his retirement party and turned her around in her chair and kissed her on the cheek. C1 stated that he is an affectionate person but had no romantic intentions toward Complainant, and that Complainant never indicated previously she was offended by his actions. C1 stated that he was surprised by Complainant's allegations. C1 acknowledged that he retired from the Agency in September 2005.
Also, the record indicates C1 attended "EEO/Mutual Respect/Sexual Harassment" Training on April 19, 2005 and that the Agency distributed Civil Rights and Harassment policy letters to its employees. The record also includes statements from other female and male coworkers who indicate that C1 was an affectionate person to both males and females, but that he would change his actions once a person indicated they were offended.
At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Subsequently, the Agency issued a final action finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed, without substantive comment.
ANALYSIS AND FINDINGS
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 severe or pervasive. Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (DC. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. (Enforcement Guidance) at 3, 9 (Mar. 8, 1994). In determining whether 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, 21 (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).
In order to establish a prima facie case of sexual harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (Title VII "forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment."). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In a case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. � 1604.11(d).
Even if this Commission assumes that Complainant satisfied the first four of the five Henson elements, Complainant's claim fails on the final prong - "basis for imputing liability to the employer." Complainant is unable to prove by a preponderance of the evidence that there exists any basis for imputing C1's conduct to the Agency. The record reveals that some Agency employees considered C1 an affectionate person who changed his actions once informed they were not welcome and that the Agency addressed prior concerns regarding C1's conduct once informed. Further, the record clearly shows that after Complainant reported the incident to management, the Agency promptly conducted an internal investigation on the matter and issued C1 a Letter of Instruction advising him of Complainant's allegation and to avoid contact with her. Further, within a couple weeks of Complainant's allegation and within several days of the Letter of Instruction, C1 retired from employment with the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, 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
___August 26, 2011
Date
2
01-2009-0614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090614