Melody G. Beyer Watkins,<1> Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionSep 9, 2002
07A10036 (E.E.O.C. Sep. 9, 2002)

07A10036

09-09-2002

Melody G. Beyer Watkins, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons), Agency.


Melody G. Beyer Watkins v. Department of Justice

07A10036

September 9, 2002

.

Melody G. Beyer Watkins,<1>

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

(Bureau of Prisons),

Agency.

Appeal No. 07A10036

Agency No. P-97-9252

Hearing No. 280-99-4330X

DECISION

Following its November 16, 2000 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its rejection

of an EEOC Administrative Judge's finding that the agency discriminated

against complainant on the basis of her sex (female) and retaliated

against her on the basis of her previous EEO activity in violation

of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. For the following reasons, the Commission

vacates the agency's final order.

Complainant, a GS-6 Unit Secretary employed at the United States

Penitentiary in Leavenworth, Kansas, filed a formal EEO complaint with

the agency on September 22, 1997. In Melody G. Beyer v. Department of

Justice, EEOC Appeal No. 01993213 (December 10, 1999), the Commission

reversed the agency's partial dismissal and remanded the complaint to

an Administrative Judge who issued a decision finding that the agency

discriminated against complainant:

on the bases of her sex (female) and reprisal (prior EEO activity) when

it failed to remove a reprimand from her official personnel folder; and

on the basis of her sex when it subjected complainant to a hostile

work environment.

It is from these findings that the agency now appeals. Complainant has

not appealed and we do not consider the Administrative Judge's findings

of no discrimination.<2>

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge 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).

An Administrative Judge's conclusions of law are subject to a de novo

standard of review, whether or not a hearing was held.

Removal of Reprimand

The record in this regard is undisputed, on September 4, 1996, complainant

entered the institution grounds under the influence of alcohol and

medication and attempted to withdraw her service revolver from the

armory in order to kill herself. On January 21, 1997, the agency issued

complainant a letter of reprimand for her actions. On March 13, 1997,

Warden T denied complainant's request to remove the letter of reprimand

from her personnel file, because of what he called �the seriousness of her

actions.� Warden B, Warden T's successor, rejected complainant's July 21,

1997, request to remove the letter of reprimand from her personnel file.

The record reveals that the reprimand stayed in complainant's file

until December 29, 1998. The agency states that it did not remove

the reprimand because of the seriousness of complainant's actions.

The agency's human resources specialist advised Warden B to remove the

reprimand from complainant's personnel file one year after the incident

(December 1997), since there had been no recurrence.<3>

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

She must generally establish a prima facie case by demonstrating that

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,

519 (1993); Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC

Request No. 05950842 (November 13, 1997); Pavelka v. Department of the

Navy, EEOC Request No. 05950351 (December 14, 1995).

The Administrative Judge found that the agency's reason for maintaining

the reprimand was unworthy of belief in light of the discipline issued to

two male employees and the testimony of the human resources specialist.

Because the Administrative Judge's comparison with these male employees

was appropriate and because her conclusions are supported by substantial

evidence in the record, the Commission affirms the Administrative Judge's

finding that complainant was discriminated against on the basis of her

sex when it failed to remove the letter of reprimand from her personnel

file by December 1997.<4> The agency argues that complainant and the

male employees with whom she compares herself are not similarly situated.

While the infractions committed by these male comparators were different

(one maintained a sexual relationship with a subordinate employee,

the other inappropriately touched a subordinate employee) we affirm

the Administrative Judge's conclusion that the differences do not

satisfactorily explain why complainant received harsher punishment.<5>

The agency prevented damage to the careers of these male employees by

failing to discipline at all in one case, and by reducing a suspension

to a last chance agreement in the other. The Administrative Judge

did not err in comparing the discipline issued to complainant with the

discipline issued to the two male employees just because the infractions

were not identical in every respect. See O'Connor v. Consolidated

Coin Caterers Corp., 517 U.S. 308 at 312; EEOC Enforcement Guidance on

O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,

at n.4 (Sept. 18, 1996).

In addition to the comparative evidence addressed above, the

Administrative Judge credited the testimony of the agency's human

resources specialist who testified that the reprimand should have been

removed from complainant's personnel file within one year of the incident.

We affirm the Administrative Judge's finding that the agency discriminated

against complainant on the basis of her sex when it failed to remove

the letter of reprimand from her personnel file by December 1997.

Hostile Work Environment

Complainant identified two of the agency's managers, who were both

Associate Wardens at the facility, as responsible for creating a

hostile work environment. According to complainant, Associate Warden

G made comments to co-workers about her including, that her legs rubbed

together when she walked; that she was wet between her legs which would

be good for sex; and that she was a stupid bitch. In addition to these

comments, complainant asserts that she was intimidated by Associate

Warden G's comments, who, after receiving a suspension for having sex

with a subordinate employee, allegedly said �I'm back and making all

the decisions again.� Complainant also alleged that Warden G subjected

complainant to stares and harsh treatment. The other named responsible

official, Associate Warden C, embraced complainant and kissed her as

she was entering the stairwell at the landing of the personnel unit

and immediately thereafter called her at home and asked her if she was

discrete and whether she was interested.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,

765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group

of isolated incidents will not be regarded as discriminatory harassment

unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,

1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to

trigger a violation of Title VII must be determined by looking at all of

the circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating,

or a mere offensive utterance, and whether it unreasonably interferes

with an employee's work performance. Harris v. Forklift Systems, Inc.,

510 U.S. 17, 23 (1993).

The agency argues that Associate Warden G's comments were not sufficiently

severe and/or pervasive as to create a hostile work environment because

most of his comments were made to a co-worker instead of to complainant

directly. Regarding Associate Warden C's conduct, the agency argues that

the evidence does not support the conclusion that he kissed complainant

and that there is insufficient evidence to conclude that the hug was

sexual in nature. We have considered, but are not persuaded, by the

agency's arguments. We take this opportunity to point out that the

agency, in its Memorandum in Support of Final Order, conducts a highly

compartmentalized hostile work environment analysis. The agency analyzes

Associate Warden G's and Associate Warden C's actions separately and

sets apart, analytically, the comments made directly to complainant,

from those comments made about complainant to her co-worker.

The agency's compartmentalization of complainant's specific

allegations is contrary to the Supreme Court's decision in Harris

which requires fact-finders to look at all of the circumstances when

making a determination as to whether or not a hostile work environment

was created. Id. We must, therefore, consider the comments made both

directly to complainant and those comments made about complainant to

others, as long as these comments contributed to the offensive work

environment about which complainant complains. Similarly, the inquiry

into whether or not the agency created a hostile work environment should

also include Associate Warden C's unwelcomed embrace and kiss. We have

considered the agency's argument that the kiss did not occur and its

argument that the hug was not sexual. However, the facts that the kiss,

hug, and subsequent telephone solicitation happened and the fact that this

conduct was based upon complainant's sex were established at the hearing,

before the Administrative Judge. The agency has failed to establish

that the Administrative Judge's factual determinations were against the

substantial weight of the evidence. Notably, the Administrative Judge

viewed a video surveillance tape of the hug/kiss incident before issuing

a decision on this complaint.

We turn now to the issue of agency liability for the conduct of its

supervisors. See Burlington Indus. v. Ellerth, 524 U.S. 742, 760-65

(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);

EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment

by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999).

In Ellerth and Faragher, the Supreme Court made clear that employers are

subject to vicarious liability for unlawful harassment by supervisors.

The Court held where a supervisor's harassment does not culminate in a

tangible employment action, the employer may be able to avoid liability by

establishing an affirmative defense that includes two necessary elements:

(a) the employer exercised reasonable care to prevent and correct

promptly any harassing behavior; and (b) the employee unreasonably

failed to take advantage of any preventive or corrective opportunities

provided by the employer or to avoid harm otherwise. We affirm the

Administrative Judge's finding that the agency failed to avail itself

of the affirmative defense. We note that there is no evidence that the

agency disciplined Associate Warden C for his conduct in the staircase.

We also note that Associate Warden G had previously been suspended for

sexual conduct with a subordinate employee. Associate Warden G was

issued a second suspension as a result of the conduct described above,

but that suspension was immediately reduced, on the day he received it,

to a last chance agreement. We concur with the Administrative Judge's

conclusion that the agency failed to exercise reasonable care to prevent

and correct promptly any harassing behavior. The agency, which disagreed

with the finding of liability, does not dispute the relief ordered by

the Administrative Judge.

CONCLUSION

Therefore, after a careful review of the record, including arguments

and evidence not specifically discussed in this decision, the Commission

reverses the agency's final order and remands the matter to the agency

to take corrective action in accordance with this decision and the

Order below.

ORDER (D0900)

The agency is ordered to take the following remedial action:

The agency shall award complainant $17,619.00 in compensatory damages

no later than sixty (60) calendar days after the date this decision

becomes final.

the agency shall, to the extent it has not already done so, remove the

January 21, 1997 Letter of Reprimand from complainant's personnel file.

The agency shall provide a minimum of eight (8) hours of remedial

training for all managers and supervisors located at the facility, to

ensure that acts of sexual harassment do not recur, that no retaliatory

acts are taken against any employee who opposes unlawful discrimination,

including sexual harassment and that persons reporting instances of

alleged sexual harassment are treated in an appropriate manner.

The agency shall consider discipline for the managers and supervisors

who have been found to have created a sexually hostile environment and

permitted it to exist.

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 evidence that the

corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at The United States Penitentiary in

Leavenworth, Kansas 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 (S0900)

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 (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

September 9, 2002

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

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 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. has occurred at the United

States Penitentiary in Leavenworth, Kansas, (hereinafter referred to

as �facility�) .

Federal law requires that there be no discrimination or retaliation

against any employee or applicant for employment because of that person's

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITYor

PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,

compensation, or other terms, conditions, or privileges of employment.

The facility supports and will comply with such Federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility has been found to have violated Title VII by subjecting

an employee to a hostile work environment based upon her sex and

by failing to remove a letter of reprimand from her personnel file.

The facility has been ordered to give the supervisors involved training

regarding the requirements of the law referred to in this posting and to

ensure that officials responsible for personnel decisions and terms and

conditions of employment will abide by the requirements of all Federal

equal employment laws.

The facility 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

1 During the course of the adjudication of this matter, Complainant

changed her name from Melody Gay Beyer to Melody Gay Beyer Watkins.

2 Complainant originally alleged that the agency discriminated against

her on the basis of her sex (female), sexual harassment, disability

(major surgery), and reprisal when: (1) her March 4, 1997 and July 21,

1997, requests to remove a letter of reprimand from her personnel file

were denied; (2) on July 29, 1996, August 5, 1996, August 9, 1996, August

15, 1996, and March 18, 1997, her supervisor threatened her about the

company she kept and threatened to make her testify at an arbitration

hearing; (3) she was excluded from the Health Services meeting when her

supervisor and the Warden were present; (4) on July 9, 1996, August 9,

1996, August 13, 1996, and March 18, 1997, her supervisor jeopardized

her safety and created a hostile work environment when her supervisor

had an inmate write a note and place it under the door of her office;

(5) her supervisor and the Warden utilized intimidation tactics to

assist in trying to get her to resign; (6) she was reassigned from the

position of Captain's secretary; (7) she received an eviction notice;

and (8) she was subjected to inappropriate comments by the warden.

3 While not an issue raised by the parties on appeal, we find complainant

aggrieved within the meaning of our regulations because she has suffered a

personal harm to a term, condition, or privilege of her employment in the

form of the reprimand which should have been expunged one year before it

was actually removed. To the extent that complainant sought professional

psychological treatment in connection with the agency's refusal to expunge

the reprimand, removal of the reprimand, alone, does not irrevocably

eradicate the effects of the violation. County of Los Angeles v. Davis,

440 U.S. 625 (1979). That is, complainant, to be made whole, may be

entitled to the costs associated with her treatment resulting form the

agency's failure to remove the letter of reprimand in December 1997.

4 Since we conclude that complainant was discriminated against on

the basis of her sex when the agency failed to remove the letter of

reprimand from her personnel file, we need not address complainant's

reprisal allegation.

5 We note that the male employees with whom complainant compares herself

for the purposes of the disparate claim are the same individuals that

complainant names as the harassers in the sexual harassment claim

addressed below.