0120071846
05-15-2009
Michelle D. Mayer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Michelle D. Mayer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071846
Hearing No. 120200500163X
Agency No. HS03TSA001181
DECISION
On March 2, 2007, complainant filed an appeal from the agency's February
1, 2007 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission REVERSES the agency's final
order.
BACKGROUND
At the time of her complaint, complainant was employed by the agency
as a Transportation Security Screener at the Newport News-Williamsburg
International Airport in Newport News, Virginia. In her formal EEO
complaint, dated May 5, 2003, complainant alleges that she was subjected
to discriminatory harassment on the bases of sex (female) and in reprisal
for prior protected EEO activity when from December 4, 2002, to March 24,
2003:
1. A co-worker gave her a letter which stated in part, "As I watch you
move from station to station, your smile shines like a missing star
from the Heavens," which made her feel uncomfortable and threatened,
and management failed to respond;
2. Her supervisor (S1) stated that a pizza she was eating would put
dimples on her buttocks;
3. S1 leered at her and stated that she would look good in a tight cat
suit and heels;
4. S1 placed one of his boots between a female co-worker's legs and made
sexually explicit comments while moving his foot around;
5. S1 stated that he would approve her request for leave if she kissed
him;
6. S1 put his hands inside the waistband of complainant's pants and
pulled her underwear up her buttocks;
7. S1 asked her to lift her pant leg and made explicit comments about her
legs and genital area, including insisting that she waxes her pubic area;
8. S1 made an oral sex gesture while kissing his lips at her;
9. S1 initiated an erotic dance while touching his genitals and
encouraging her to touch his genitals;
10. S1 touched her buttocks;
11. She was given the wrong telephone numbers by management officials
when she asked for the agency's Office of Civil Rights;
12. She was intimidated by a co-worker for reporting an incident; and
13. She was ostracized by co-workers and management kept her separate
from her co-workers after she complained about the harassment.
The record suggests that S1 was notorious among employees for sexual
harassment. Complainant stated that after March 22, 2003, complainant
"had all of [S1's] actions that [she] could take" and that she was
afraid to file a complaint because of reprisal. The only incident
that complainant reported to management was the letter she received
from a co-worker. Complainant asserts that management officials did
not respond to this incident, and told her that the co-worker acted like
that with all women.
On March 28, 2003, complainant did not show up for work as scheduled
because of S1's harassment. She was subsequently subjected to discipline
for the absence. On April 2, 2003, complainant's father contacted the
Deputy Federal Security Director (DFSD) and complained that it was not
fair that his daughter was being disciplined for missing work when she
was a victim of sexual harassment. The DFSD told complainant's father
to have complainant call him immediately. When complainant did not call
him, the DFSD called her supervisor and told him to have complainant meet
with the Human Resources Manager (HRM). Following the meeting with the
HRM, S1 was transferred to Norfolk while the matter was investigated.
S1 subsequently resigned from his position on April 8, 2003.
After complainant met with the HRM, she alleges that she was ostracized
and denigrated by her co-workers for filing the complaint. Complainant
alleges that she was denied work assistance by management, her co-workers
stopped talking to her, and she was subjected to her co-workers making
jokes about sexual harassment complaints whenever complainant was in
their presence. Complainant alleges that the retaliation got so bad that
she was forced to take time off work until she could be transferred to
a different airport.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When the complainant did not object, the AJ
assigned to the case granted the agency's Motion for a Decision Without
a Hearing and issued a decision without a hearing on December 20, 2006.
The AJ found that complainant failed to establish that liability for
S1's harassment should be imputed to the agency because complainant
failed to report S1's harassment to other management officials.
Further, the AJ found that complainant failed to establish that she
engaged in prior protected activity, therefore no reprisal existed.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. Complainant now appeals to the Commission.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the AJ's issuance of a decision
without a hearing was inappropriate because genuine issues of material
fact are in dispute. Specifically, complainant alleges that she
was subjected to harassment based on sex and in reprisal for prior
protected EEO activity, and liability should be imputed to the agency.
The agency does not dispute that complainant was subjected to sexual
harassment by S1. The agency asserts that the Commission should uphold
the AJ's finding that liability cannot be imputed to the agency for S1's
sexual harassment because complainant did not report the harassment to
management officials and, when it was ultimately reported, the agency
acted immediately. Additionally, the agency asserts that the Commission
should also uphold the AJ's finding that complainant was not subjected to
retaliation because she failed to engage in prior protected EEO activity.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id., at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that summary judgment
was appropriate because no genuine dispute of material fact exists.
However, we find that the AJ erred in finding in favor of the agency, as
the record reflects that complainant was subjected to sexual harassment
and a hostile work environment, and liability can be imputed to the
agency as discussed below.
Agency Liability for Supervisor Harassment
We first note that the agency does not contest that complainant was
subjected to sexual harassment and a hostile work environment; the
agency only contests that it is not liable for the harassment because
complainant failed to report it to management officials. In the context
of supervisory liability, employers are subject to vicarious liability for
unlawful harassment by supervisors. Farragher v. City of Boca Raton, 524
U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
The standard of liability set forth in these decisions is premised
on two principles: (1) an employer is responsible for the acts of its
supervisors, and (2) employers should be encouraged to avoid or limit
the harm from harassment. In order to accommodate these principles,
the Court held that an employer is always liable for a supervisor's
harassment if it culminates in a tangible employment action.
In a case where harassment does not result in a tangible employment
action, the employer may prove an affirmative defense comprised of
two elements: (1) that the employer exercised reasonable care to
prevent and correct promptly any harassing behavior, and (2) that
the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. Ellerth, supra; Faragher, supra. Further, if the
harassment is pervasive, it could result in a finding that the agency
had constructive knowledge of the harassment. See Padilla v. United
States Postal Service, EEOC Appeal No. 0120063761 (April 8, 2008)
(supervisor's harassment was so pervasive that the agency should have
had constructive knowledge of the harassment).
Here, while the agency denies that management officials had any knowledge
of the harassment, the record establishes that management was aware
of some of the harassment. For example, complainant reported the
romantic letter from a co-worker to three management officials, all
of whom ignored her complaint. Further, another manager witnessed S1
making oral sex motions with his hand and mouth towards complainant.
Complainant asserts that the other manager just shook his head at S1 and
took no action. Further, another manager stated in his affidavit that
complainant mentioned the harassment to him in a casual conversation,
and he considered it only hearsay. We find that management officials
were aware that complainant felt that she was being sexually harassed.
Further, the harassment was pervasive, often occurred in front of
co-workers, and permeated the workplace. For example, while speaking
to complainant and a female co-worker, S1 put his foot between the legs
of a female co-worker and moved his foot around while making sexually
explicit comments. Further, S1 reached into complainant's waistband
and pulled her underwear up her buttocks in front of her co-workers.
S1 asked complainant if she waxed her pubic area in front of her
co-workers. S1 attempted to give complainant a lap dance and asked
her to touch his genitals in front of her co-workers. Additionally,
S1 touched complainant's buttocks while she was talking to a co-worker.
We find that these acts were pervasive. Additionally, we find the agency
had constructive knowledge that the sexual harassment was taking place.
The record establishes that employees were aware that S1 was sexually
harassing complainant, and therefore, management knew or should have
known of the harassment as well.
Next, the agency contends that when it was made aware of the harassment,
it acted immediately to end the harassment. When an employer becomes
aware of alleged harassment, it has the duty to investigate the charges
promptly and thoroughly. See Rodriguez v. Department of Veterans
Affairs, EEOC Appeal No. 01953850 (August 29, 1996). By "thoroughly"
the Commission means "effectively," taking whatever action necessary to
end the harassment and prevent the misconduct from recurring. See Voigt
v. United States Postal Serv., EEOC Appeal No. 01931799 (Dec. 20, 1994).
We find that the agency failed to take prompt and effective action after
it was aware that complainant was harassed. For example, when complainant
reported the letter she received from her co-worker, management officials
failed to take action. Additionally, when a management official observed
S1 make a gesture towards complainant that indicated oral sex, the
management official merely shook his head and failed to take any action.
The record establishes that the agency clearly failed to address the
harassment; therefore it is liable for the harassment.
Retaliation
Complainant alleges that she was retaliated against after she reported
S1's harassment to the HRM. Complainant alleges that management officials
purposely gave her numerous wrong numbers for the agency's Office of
Civil Rights in an attempt to deter her from pursuing the EEO process.
Further, complainant asserts that once it became known that she complained
about S1's harassment, she was subsequently subjected to retaliation
by management officials who kept her separated from her co-workers,
and co-workers ostracized her, refused to talk to her, and made jokes
in her presence about people filing sexual harassment complaints.
Complainant further alleges that the retaliation become so severe that
she had to take leave until a hardship transfer to Logan International
Airport in Boston was processed.
We find that the record is inadequate to make a determination on
this claim. Specifically, the investigator's questions regarding
retaliation were vague, and the record does not contain specific
information identifying the responsible co-workers and management
officials, or the responses to these allegations from the responsible
management officials and responsible co-workers. Therefore, a hearing
is necessary to adjudicate complainant's retaliation claim.1
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES the
agency's final decision, REMANDS complainant's retaliation claim for a
hearing, and orders the agency to comply with the Order below.
ORDER
There agency is hereby ORDERED to take the following remedial action:
1. The agency shall immediately cease and desist from all discriminatory
conduct directed at complainant and members of her protected class,
and ensure that complainant is no longer subjected to a hostile work
environment. Additionally, the agency shall ensure that complainant
is not subjected to retaliation for her participation in protected EEO
activity. Further, the agency shall ensure that others at the facility
are not subjected to sexual harassment and/or retaliation.
2. Within sixty (60) calendar days from the date this decision becomes
final, the agency will conduct and complete a supplemental investigation
on the issue of complainant's entitlement to compensatory damages for
her harassment claim, and will afford her an opportunity to establish a
causal relationship between the harassment she was subjected to and the
pecuniary or non-pecuniary losses, if any. Complainant will cooperate
in the agency's efforts to compute the amount of compensatory damages,
and will provide all relevant information requested by the agency.
The agency will issue a final decision on the issue of compensatory
damages. 29 C.F.R. � 1614.1.10. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
3. Within sixty (60) calendar days from the date this decision becomes
final, the agency shall award complainant reasonable attorney's fees
and costs for her harassment claim, as described below.
4. Within sixty (60) calendar days from the date this decision becomes
final, the agency shall provide sixteen (16) hours of EEO training to
all management officials at this facility.
5. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall consider taking disciplinary action against S1
and all of the managers who had actual or constructive knowledge of the
harassment and failed to take prompt and effective action. The agency
does not consider training to be disciplinary action. The agency shall
report its decision to the compliance officer. 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. If any
of the responsible management officials have left the agency's employ,
the agency shall furnish documentation of their departure date(s).
6. With regard to complainant's claim of retaliation, the agency
is ordered to remand the instant complaint to the Hearings Unit of
the appropriate EEOC Field Office for scheduling of a hearing in an
expeditious manner. The case should be assigned for an administrative
hearing before a different EEOC AJ than the AJ who issued the summary
judgment decision addressed herein. The agency shall submit to the Hearing
Unit of the appropriate EEOC Field Office the request for a hearing
within fifteen (15) calendar days of the date this decision becomes
final. The agency is directed to submit a copy of the complaint file to
the EEOC Hearing Unit 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 complaint in
accordance with 29 C.F.R. � 1614.110.
The agency is further directed to submit a report of compliance, as
provided in the statement "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 Newport News-Williamsburg
International Airport in Newport News, Virginia facility 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 tends 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 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 (R0408)
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 (Z1008)
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
May 15, 2009
Date
1 We note that because complainant's retaliation claim and harassment
claim are not inextricably intertwined, remanding only the retaliation
claim for a hearing will not result in harmful fragmentation.
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0120071846
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071846