01994291
05-01-2000
Patricia Milton, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Patricia Milton, )
Complainant, )
) Appeal No. 01994291
v. ) Agency No. 980435
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that she was discriminated against on the basis of
her sex (female) when she was sexually harassed. Complainant alleged
that a hostile work environment was created when:
(1) she was hit on the buttocks by a doctor (D) in April 1996<2>;
(2) she was again hit on the buttocks by D on July 27, 1997; and
(3) D approached her on November 5, 1997 and attempted to have a
conversation with her about the above incidents.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Staff Nurse at the agency's Oklahoma City, Oklahoma facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on November 18, 1997.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a final decision by the agency. After first
requesting a hearing, complainant withdrew this request in favor of
receiving an immediate FAD.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of sexual harassment because the incidents about which
she complained did not create a hostile environment. The agency found
the April 1996 and July 1997 incidents to be accidental and the November
1997 conversation to be an attempt on D's part to apologize.
The agency went on to note that once complainant reported D's behavior,
management reprimanded D and required him to write a letter of apology
and attend training on sexual harassment. Following the November
1997 incident, D was prohibited from returning to the medical center.
The agency concluded that complainant did not establish that she was
sexually harassed.
Complainant raises no arguments on appeal and the agency asks that its
FAD be affirmed.
ANALYSIS AND FINDINGS
It is well settled that sexual harassment in the workplace constitutes
an actionable form of sex discrimination under Title VII. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of sexual harassment, complainant must show that: (1) she belongs
to a statutorily protected class; (2) she was subjected to unwelcome
conduct related to her gender, including sexual advances, requests for
favors, or other verbal or physical conduct of a sexual nature; (3) the
harassment complained of was based on sex; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d. 897 (11th Cir. 1982); see also
McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc, EEOC Notice
No. 915.002 (March 8, 1994).
Regarding element (1), complainant has established that she is a member
of a statutorily protected class. With regard to elements (2) and
(3), the Commission finds that the conduct in question was clearly
related to complainant's gender in that D hit complainant twice on
the buttocks. While D explained to complainant that he often touched
a male colleague on the shoulder, complainant correctly noted that a
touch to the shoulder is quite different than a touch to the buttocks.
D admitted to inappropriately touching complainant on July 22, 1997.
While he did not recall a similar incident occurring in April 1996, two
witnesses substantiate complainant's claim. One, a health technician
(HT), indicated that while the event �kind of shocked� him, he believed it
was unintentional. The other witness, a registered nurse (RN), testified
that he did not clearly see the April incident occur, but thought he had
seen D touch complainant's buttocks and remembers being very surprised.
RN clearly remembered hearing complainant tell D after the incident that
she never wanted him to touch her hips again. The contact was clearly
unwelcome given that after both incidents, complainant admonished D for
his behavior.
Turning to element (4), the agency felt that the conduct in question
was not severe or pervasive enough to create a hostile environment.
Commission guidance states, however, that:
The Commission will presume that the unwelcome, intentional touching
of a charging party's intimate body areas is sufficiently offensive
to alter the conditions of her working environment and constitute a
violation of Title VII. More so than in the case of verbal advances or
remarks, a single unwelcome physical advance can seriously poison the
victim's working environment. Policy Guidance on Current Issues of Sexual
Harassment (Policy Guidance), EEOC Notice No. 915-050 at 105 (March 19,
1990).
The guidance goes on to note that when a supervisor sexually touches
an employee, the Commission would normally find a violation and that it
is the employer's burden to demonstrate that the unwelcome conduct was
not sufficiently severe to create a hostile work environment. See id.
In the case at hand, there is evidence that D touched complainant on
the buttocks twice, that after the first, perhaps unintentional touch,
complainant told D never to touch her in a similar way again, and that
he nevertheless did so, intentionally, at a later date. The agency
offered nothing to suggest that this unwelcome, intentional touching
of petitioner's buttocks should not be viewed as sufficiently offensive
to alter the conditions of complainant's working environment. We find,
therefore, that complainant has established element (4).
In considering whether complainant has satisfied element (5), the
Commission notes that the agency is potentially liable for the harassment
created by a supervisor or someone who acts in a supervisory capacity.
There is little information in the record on professional relationship of
complainant and D. It is clear from the FAD, however, that the agency
viewed D as a supervisor of complainant, as the agency noted therein
that management was liable for sexual harassment by a supervisor with
immediate or successively higher authority over a victimized employee
unless it establishes the affirmative defense discussed in two recent
Supreme Court decisions. See Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775
(1998); see also Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors (Enforcement Guidance), EEOC Notice
No. 915.002 at 4. (June 18, 1999). Moreover, the record indicates that
D had the authority to direct complainant's daily work activities, as
the first incident took place when D was directing complainant to bring
in his next patient. See Enforcement Guidance at 5. Therefore, we
find that a basis exists under which liability for D's harassment could
potentially be imputed to the agency. Accordingly, because complainant
has satisfied Elements 1 through 5, we find that she has established
that she was subjected to sexual harassment.
Vicarious Liability
An employer is subject to vicarious liability for sexual harassment when
it is �created by a supervisor with immediate (or successively higher)
authority over the employee.� See Ellerth and Faragher. When, as here,
the harassment does not result in a tangible employment action being
taken against the employee, the employer may raise an affirmative defense
to liability. The agency can meet this defense, which is subject to
proof by a preponderance of the evidence, by demonstrating (a) that it
exercised reasonable care to prevent and correct promptly any sexually
harassing behavior and; (b) that complainant unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the
agency or to avoid harm otherwise. See Enforcement Guidance at 12.
We find, however, that the agency cannot establish the second prong of the
affirmative defense, i.e., that complainant unreasonably failed to take
advantage of preventive or corrective opportunities. Although complainant
did not report D's actions to management until after the second incident,
she did tell D that she found his behavior inappropriate after the first
incident and requested that he never touch her in a similar fashion again.
When a second incident occurred, complainant immediately reported the
situation to her supervisor. We find this to have been reasonable
behavior on the part of complainant. See Enforcement Guidance at 30.
Having found that the agency did not establish one of the two necessary
prongs to the affirmative defense, the Commission finds that the agency
is liable for D's harassment of complainant.<3>
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we REVERSE the agency's final decision and
REMAND this case to the agency to take remedial actions in accordance
with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following actions:
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to sexual harassment and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.<4>
The agency shall ensure that D is not permitted to work in the same
facility as complainant without her agreement.
Complainant shall be awarded attorney's fees, as provided below.
The agency shall post the attached notice, as provided below.
The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages for the
harassment she experienced between July 1997 and November 1997.<5>
The agency shall allow complainant to present evidence in support of
her compensatory damages claim. Complainant shall cooperate with the
agency in this regard. Thereafter, the agency shall issue a final
decision. EEOC Regulation 37,644, 37,657 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.110(b)). The supplemental
investigation and issuance of the final decision must be completed
within sixty (60) calendar days of the date this decision becomes final.
A copy of the final decision must be submitted to the Compliance Officer,
as referenced below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Oklahoma City, Oklahoma 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
May 1, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 the Department of
Veterans Affairs, Oklahoma City, Oklahoma Medical Center (hereinafter
�facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or 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 was found to have discriminated against an employee when
that employee was sexually harassed by a supervisor. The agency has
already reprimanded the harasser, ordered him to write a letter of
apology to the employee, and transferred him out of his rotation at
the facility. The agency has been ordered to (1) take appropriate
preventative steps to ensure that no employee is subjected to sexual
harassment and to ensure that appropriate steps are taken immediately
after management is notified of any such harassment; (2) ensure that
complainant and the harasser do not work in the same area in the future;
(3) determine whether complainant is entitled to an award of compensatory
damages; (4) award reasonable attorney's fees, if applicable; and (5)
post this notice.
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:
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 There is some confusion in the record concerning this date. At times
this first incident is said to have occurred in April 1997, and at other
times in April 1996. We credit complainant's statement in her affidavit
that it occurred in April 1996 and judge the references to April 1997
to be typographical errors.
3 We need not explore whether the agency demonstrated the first prong
of the affirmative defense. We note, however, that while the agency
did, once informed, conduct an internal investigation that resulted in
disciplinary action against D, the record indicates that the agency
asked complainant if she would like to transfer to a different area
so as to avoid working with D. Commission guidance is clear that
remedial measures must not adversely affect the complainant. If the
agency determines that it is necessary to separate the parties, then the
harasser should be transferred, unless complainant prefers otherwise.
See Enforcement Guidance at 22.
4 The record indicates that the agency has reprimanded D and that
complainant requested and received a letter of apology from D. Moreover,
the agency required D to take sensitivity training on issues of sexual
harassment. Finally, the agency notes that D was removed from his
rotation at the medical center and that, as of November 1997, he has
not been allowed to return to the medical center.
5 The first incident occurred in April 1996, but complainant did not
bring D's behavior to the agency's attention until July 1997. While we do
not find complainant's behavior to be unreasonable, we believe that had
complainant complained earlier she may have avoided a portion of the harm
she suffered. We therefore find the appropriate time period to consider
in regard to compensatory damages is July 1997 through November 1997.