0520120633
02-28-2013
Michelle A. Munoz, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Michelle A. Munoz,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120633
Appeal No. 0120110188
Agency No. HS-09-CBP-000601
DENIAL
Complainant timely requested reconsideration of the decision in Michelle A. Munoz v. Department of Homeland Security, EEOC Appeal No. 0120110188 (August 6, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her formal complaint, Complainant alleged that the Agency subjected her to harassment and discrimination on the basis of sex (female) when:
1. In May 2007, the Port Director (PD) gave her a sticker from a strip club, told her to place it on her husband's car, and made sexual remarks regarding the strip club;
2. On June 8, 2007, the PD arrived uninvited at her court hearing following her domestic violence arrest and stated to coworkers that she "looked hot in a dress";
3. The PD repeatedly directed her to accompany him on trips alone during duty hours;
4. The PD took her to Hooters for her birthday and made inappropriate, vulgar remarks during lunch;
5. The PD repeatedly commented on her body, hair, and makeup;
6. The PD told her on a weekly basis that he needed sex and described his sexual acts;
7. The PD repeatedly subjected her to sexually-explicit pictures and vulgar language;
8. In May 2007, the PD took her picture and commented on how pretty she looked;
9. Between May 2007 and August 2007, the PD intervened when he saw another officer assisting her on the computer and would "circle both his arms around [her]." On one occasion, the PD placed his hands over her hands on the computer mouse and made slow circle movements while pressing his body into her back;
10. In May 2007, the PD asked her to go into his hotel room;
11. In June 2007, the PD stared at her in a sexual manner, pointed to the couch in his office, and stated,"That is for [her] to lie down on for me." Later in the conversation, the PD looked down at his pants and stated, "Down boy, down boy."
12. In June 2007, the PD contacted her at home at 9:30 p.m. and asked where her husband
was;
13. While at the post office during duty hours, the PD showed her women's underwear and asked for her opinion;
14. In August 2007, Complainant informed the PD that a firearms instructor "slapped [her] rear end," and he told her to drop it;
15. In August 2007, the PD suggested that she leave her husband and move in with him;
16. From September 2007 through March 2008, the PD asked her to sleep at his house and gave her a map with directions to his house;
17. The PD ordered her to accompany him alone to a hotel for a maintenance inquiry and commented that she should try to get a room for the two of them;
18. The PD told her about his sexual relationship with another female employee;
19. On September 2, 2008, the PD told her a Chinese couple offered him two Chinese girls to choose from in exchange for his assistance with immigration issues. The PD told Complainant he had sex the previous weekend with one of the girls; and
20. On September 4, 2008, after approving her annual leave, the PD followed her to a casino and yelled at her.
Complainant also alleged discrimination in reprisal for contacting an EEO Counselor regarding the aforementioned incidents, when on November 21, 2008, management denied her request for sick leave and charged her Absent without Leave (AWOL).
In its final decision, the Agency found that the record supported the conclusion that Complainant was only subjected to four instances of unwelcome conduct, but these incidents were not sufficiently severe or pervasive to constitute a hostile work environment. The Agency further found that, even if the alleged incidents occurred, there is no basis to impute liability to the Agency because the Agency exercised reasonable care to prevent and promptly correct any harassing behavior, and Complainant failed to take advantage of preventative opportunities provided by the Agency.
In our previous decision, the Commission affirmed the Agency's final decision. Specifically, the Commission found that, even assuming that the alleged incidents occurred, Complainant failed to avoid harm or take advantage of preventative measures provided by the Agency. The Commission noted that Complainant acknowledged that she did not report the alleged harassment to management until after the September 4, 2008, incident because she was concerned that the Agency might take away her firearm if the PD reported her domestic violence arrest. The Commission further noted that two coworkers stated that they advised Complainant about reporting the harassment, and a coworker stated that Complainant continued to go on smoke breaks with the PD even after he told Complainant to keep her distance from him.
The Commission further found that the Agency acted promptly and effectively in addressing the harassment, and therefore, liability could not be imputed to the Agency. The Commission noted that, after Complainant reported the PD's harassment to management, the Agency immediately began an investigation into the allegations; allowed Complainant to go home the next day and take administrative leave; issued a Memorandum of Instruction ordering the PD not to contact Complainant; immediately removed the PD from the Spokane, Washington office where Complainant worked, effective September 17, 2008; and the PD resigned effective December 22, 2008. Finally, the Commission found that Complainant failed to prove that the Agency's explanation for charging her AWOL (Complainant failed to call in and request leave in a timely manner when she did not report to work) was pretext for retaliation.
In her request for reconsideration, Complainant maintains that she told a coworker in early 2008 that the PD was not harassing her anymore because there were brief periods in which the harassment temporarily ceased. Complainant further maintains that she tried to avoid the PD, but the PD would just stand behind her chair silently and insist that she go out with him. Complainant maintains that the PD told her that she would be the one in trouble if she reported the harassment to upper management, and other employees also feared he would retaliate if they reported PD's harassing conduct. Complainant also contends that her complaint involves a tangible employment action that makes the Agency strictly liable for the harassment because she alleged on appeal that the PD reassigned her to perform the duties of a deferred office without formal training to perform such duties. Complainant further contends that she also alleged on appeal that the PD submitted a formal request to suspend her without pay and to issue her a reprimand.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Although Complainant provides reasons why she did not report the harassment to management until September 2008, we do not find that her explanations undercut our previous finding that she failed to take advantage of preventive or corrective opportunities. Further, while a coworker stated that she informed a manager in April 2008 that PD had engaged in harassing conduct, the coworker also stated that Complainant told the coworker to drop the matter and asserted that the PD was not harassing her. Complainant did not contest the coworker's assertions and acknowledged that she did not inform management of the PD's harassing conduct until September 2008.
Regarding Complainant's assertion that her complaint involves a tangible employment action that renders the Agency strictly liable for the ongoing harassment, we note that the AWOL issue is the only accepted issue or incident that is a tangible employment action in this complaint. Complainant cannot belatedly introduce new claims on appeal or in her reconsideration request. Moreover, the PD was not responsible for Complainant's AWOL charge. As such, we do not find that the AWOL charge is related to or a part of Complainant's ongoing harassment claim.
Further, with respect to Complainant's claim that the PD requested that management suspend and reprimand her, the record reveals that the PD made this request to management but did not issue any such proposal to Complainant. Also, the PD did not have any authority to issue proposed suspensions and reprimands, did not submit a formal request for these actions against Complainant to management, and the Agency took no action against Complainant because of the PD's memorandum to management. Report of Investigation, Exhibits F3, F4. As such, we do not find that the PD's actions were tangible employment actions against Complainant. Moreover, because there is no evidence that Complainant was aware during the relevant time period of the PD's request for management to suspend or reprimand her, we cannot find that these actions were reasonably likely to deter employees from engaging in EEO activity. Consequently, we find that our previous decision did not err when it found that Complainant failed to prove that she was subjected to unlawful discrimination or that the Agency was liable for the PD's harassing conduct.
Accordingly, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120110188 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
February 28, 2013
Date
2
0520120633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120633