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.