07A00047_01A05329
09-28-2001
Lenora Henderson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lenora Henderson v. Department of Veterans Affairs
07A00047, 01A05329
09-28-01
.
Lenora Henderson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 07A00047, 01A05329
Agency No. 99-2033
Hearing No. 130-A0-8124X
DECISION
The agency timely initiated an appeal<1> to the Equal Employment
Opportunity Commission (EEOC) from the decision of the EEOC administrative
judge (AJ) concerning complainant's equal employment opportunity (EEO)
complaint, which alleged discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted by the Commission in accordance with the provisions
of 29 C.F.R. � 1614.405. By final agency order dated August 22, 2000,
the agency notified complainant that it would not implement the AJ's
decision. For the reasons which follow, the Commission AFFIRMS AS
MODIFIED the final agency order.
BACKGROUND
In a formal complaint dated April 27, 1999, complainant alleged that the
agency discriminated against her when she was sexually harassed by her
Work Leader. Complainant, then a Housekeeping Aid (Temporary) in the
Environmental Management Service of the agency's Birmingham, Alabama,
Medical Center, stated in her complaint that on March 31, 1999, she
was left alone in an office with her Work Leader while her supervisor
(Supervisor 1) went to get some supplies that complainant would need
for her assignment that day. Complainant stated that after Supervisor 1
left the room, the Work Leader told her to �suck his dick.� She stated
that she did not respond, and the Work Leader repeated his statement.
She stated that the Work Leader told her to shut the door, and when she
said she would not, he shut the door himself. She stated that the Work
Leader then stood in front of her, grabbed his crotch, and rubbed himself
against her. She stated that she pushed him away, that he repeated his
actions, and that she pushed him away again. Complainant stated that
when the Work Leader saw that she was not going to respond, he opened
the door. Complainant stated that later in the day, the Work Leader
approached her again and told her that her second-level supervisor
(Supervisor 2) �is not going to put you on light duty unless you suck
my dick.� Complainant, who did not have a permanent assignment, was
moved to an area where the Work Leader was not supposed to be present.
Complainant noted that she still saw the Work Leader in the hallways,
and wanted to be moved to another department.
The agency conducted an investigation of the complaint. In his affidavit,
the Work Leader denied the statements and actions attributed to him by
complainant, and denied that he had been alone with complainant or had
even discussed her duties with her on the date in question. However,
Supervisor 1 provided a statement in which he corroborated complainant's
account of having been left alone in the office with the Work Leader.
Supervisor 1 stated that when he became aware of complainant's allegations
later that day, he confronted the Work Leader, who stated that he had
not done anything to complainant and that even if he had, she could
not prove it. Supervisor 1 and Supervisor 2 instructed the Work Leader
that he was to have no communication with complainant for any reason.
Supervisor 1 further stated that two other female employees had spoken
to him about the Work Leader's conduct. One employee stated that the
Work Leader was �licking his tongue out� at her; the other stated that
the Work Leader stood in front of her holding his crotch. Supervisor 1
stated that he had also seen the Work Leader holding his crotch in front
of female employees.
Supervisor 2 stated that complainant contacted him the morning of
March 31, reporting that she had been sexually harassed by the Work
Leader. He felt that complainant might be more comfortable talking
to another female, and so called the EEO Manager, who is female,
to talk to complainant about what had happened. Supervisor 2 noted
that complainant was a �floater� and not permanently assigned anywhere,
and so was moved to an area where the Work Leader would not be present.
Supervisor 2 acknowledged that an employee reports to his or her Work
Leader when the supervisors are not present.
After investigating the complaint, the agency provided complainant with a
copy of the investigative report and advised her of her right to request
either a hearing before an EEOC AJ or an immediate final decision by
the agency. Complainant requested a hearing.
The case was assigned to AJ, who subsequently determined that there
existed no genuine issue of material fact to be resolved, and therefore
issued findings and conclusions without a hearing. The AJ issued a
finding of no discrimination, concluding that complainant experienced �an
isolated act of harassment, which was promptly corrected by the [a]gency,�
and therefore had not been subjected to �actionable sexual harassment.�
In a final agency order dated August 22, 2000, the agency rejected the
AJ's decision and issued a finding of discrimination. The agency awarded
no relief, however, stating:
If this final action finding discrimination is sustained by the EEOC on
appeal, complainant may be entitled to remedial relief. The extent of
remedial relief due to complainant cannot be determined at this time
due to unresolved issues of retaliation and constructive discharge.
These issues should be further developed on the record on remand.
ANALYSIS and FINDINGS
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. Silva v. National Credit Union Association, EEOC Request
No. 05971113 (July 31, 2000). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The United States Supreme Court has stated that summary
judgment is appropriate where the trier of fact determines that, given
applicable substantive law, no genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is
�genuine� if the evidence is such that a reasonable fact-finder could find
in favor of the non-moving party. Oliver v. Digital Equipment Corp.,
846 F.2d 103, 105 (1st Cir. 1988). In the context of an administrative
proceeding under Title VII, summary judgment is appropriate if, after
adequate investigation, the complainant has failed to establish the
essential elements of his or her case. Spangle v. Valley Forge Sewer
Authority, 839 F.2d 171 , 173 (3d Cir. 1988). In determining whether
to grant summary judgment, the trier of fact's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Anderson, 477 U.S. at 248-49. The Commission's review of a case where
summary judgment has been granted under 29 C.F.R. � 1614.109(g) is
de novo.
Here, the AJ granted summary judgment after determining that complainant
could not establish a prima facie case of sexual harassment because she
experienced �an isolated act of harassment, which was promptly corrected
by the [a]gency,� and therefore had not been subjected to �actionable
sexual harassment.� The AJ's conclusion in this regard, however, is
in error. According to complainant, the Work Leader closed himself
into a room alone with her, demanded that she perform oral sex on him,
and grabbed his penis through his clothes and rubbed it against her.
When complainant refused his advances, the Work Leader allowed her
to leave the room, but sought her out later to again demand that she
perform oral sex on him, threatening her that she would not receive a
requested light-duty assignment if she did not. The Commission finds
that this conduct, if a true account of events, was severe enough to
support a claim of sexual harassment. See Morgan v. Department of the
Navy, EEOC Appeal No. 01972175 (February 2, 2000).
The Commission further finds that genuine issues of material fact existed
as to exactly what happened on the date in question. Complainant alleged
a set of facts which the Work Leader denied, and while there appears to
be evidence of record corroborating complainant's claim, this is a case
where credibility determinations based on the demeanor of the witnesses
would have been critical to the outcome of the case. Further, there
was at the time an unresolved issue of fact regarding the Work Leader's
status in relation to complainant; that is, whether the Work Leader
should have been treated as complainant's superior for purposes of the
liability analysis. See Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).<2>
Under other circumstances, the appropriate course of action would have
been to remand this case for a hearing on the merits. However, after
reviewing the evidence already of record, the agency officials deputed
to resolve this claim concluded that there was sufficient evidence of
record from which to conclude that complainant had been sexually harassed,
and issued a final agency order finding discrimination. Accordingly,
the Commission AFFIRMS that finding, and will proceed to consider the
appropriate remedy.
The record reflects that shortly after complainant filed her April 27,
1999, complaint, she was sent home because there was not light duty work
available for her.<3> The record further reflects that complainant's
employment with the agency was terminated in May 1999 during a period when
the positions of several employees were abolished, putatively on budgetary
grounds. These matters are not before the Commission at this time.
They are acknowledged, however, in the course of noting that complainant
has not shown any loss of pay or use of leave attributable to the sexual
harassment, and so is not entitled to back pay and benefits or leave
restoration. However, complainant has requested compensatory damages.
The case will therefore be remanded for processing of the issue of
compensatory damages, consistent with the Order of the Commission, below.
The Commission will also order the agency to consider disciplining the
Work Leader, to post a notice of the finding of discrimination, to provide
further EEO training to the agency personnel involved in this matter,<4>
and to pay complainant's reasonable attorney's fees and costs.
Finally, the Commission notes that memoranda of record reveal that an
Administrative Board of Investigation convened by the agency for purposes
of investigating complainant's sexual harassment complaint (outside of
the EEO process) found complainant to lack credibility and recommended,
inter alia, that complainant be disciplined for making false statements
against the Work Leader. The Commission admonishes the agency that
having issued a finding of discrimination in the EEO process, the agency
may not then resort to the results of an extra-process investigation to
deny that the sexual harassment occurred.
CONCLUSION
Based upon review of the record and for the foregoing reasons, it is the
decision of the Commission to AFFIRM AS MODIFIED the final agency order.
The agency shall take remedial action consistent with the Order of the
Commission, below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
(1) The issue of compensatory damages is REMANDED to the Hearings
Unit of the Birmingham, Alabama EEOC District Office. The agency is
directed to submit a copy of the complaint file within fifteen (15)
calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall
issue a decision on the matter of compensatory damages in accordance
with 29 C.F.R. � 1614.109 and the agency shall issue a final action in
accordance with 29 C.F.R. � 1614.110.
(2) The agency shall provide EEO training on the topic of sexual
harassment to the Work Leader and to Supervisor 1.
(3) The agency shall consider taking disciplinary action against the
Work Leader. 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.
(4) The agency shall post a notice of the finding of discrimination,
as set forth below.
(5) The agency shall pay complainant's reasonable attorney's fees and
costs, if any, as set forth below.
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 Birmingham, Alabama, Medical
Center 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 (K0501)
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)
(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 (M0701)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___09-28-01_______________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The Birmingham, Alabama, Department of Veterans Affairs Medical
Center(Birmingham VAMC) supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The Birmingham VAMC has been found to have discriminated against
the individual affected by the Commission's finding. The Birmingham
VAMC shall pay the affected individual's proven compensatory damages,
and attorney's fees and costs. The Birmingham VAMC will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The Birmingham VAMC will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1Complainant prematurely filed an appeal with the Commission from the
decision of the EEOC Administrative Judge. Upon issuance of the final
agency order, complainant's appeal was perfected. In the interests of
judicial economy, the appeals have been consolidated for disposition
herein.
2The agency subsequently acknowledged, consistent with statements of
other supervisory personnel, that the Work Leader in fact functioned as
complainant's superior.
3As best may be discerned, complainant was not on light duty at the time
of the events at issue, but was placed on light duty subsequently.
4The Commission notes that Environmental Management Service personnel,
including complainant's supervisors and the Work Leader, attended sexual
harassment training about three months prior to the events at issue.
Because Supervisor 1 was aware of, but did not report prior improper
conduct by the Work Leader, both the Work Leader and Supervisor 1 are
to be referred for EEO training.