0120073932
08-12-2011
Robin L. Pugliese, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Robin L. Pugliese,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120073932
Agency No. D-02-3662
DECISION
On September 12, 2007, Complainant filed an appeal from the Agency’s
August 9, 2007, final decision 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 deemed timely and is accepted pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.
ISSUES PRESENTED
Whether the Agency erred by not providing Complainant with rights to
appeal to the Merit System Protection Board (MSPB) and whether the
Agency adequately responded to Complainant’s allegation of a hostile
work environment based on her sex.
.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a full time, active- duty, non-commissioned officer of the Army National
Guard, she was assigned to the Rochester, New York, Drug Enforcement
Administration’s (DEA) office to serve as an Intelligence Analyst.
The record reveals that Complainant provided affidavit testimony that
during her detail, she was sexually harassed when she was subjected to
inappropriate sex-based comments, unwelcomed sexual advances and was
told the sexual details of the life of one of the DEA Special Agents
(CW1) with whom she worked. The harassing incidents continued until on
or about January 8, 2002, when Complainant stated that CW1 called her a
“bitch” and told her to “shut her mouth or he would put his cock
in it.” Complainant reported this behavior to the Acting Resident
Agent in Charge (ARAC) on January 10, 2002. She told the ARAC that she
did not want to file any formal charges, but she wanted CW1’s conduct
to stop. The ARAC asked if he could speak to CW1 about what happened.
She agreed, as long as CW1’s behavior ceased. Complainant also told the
ARAC that she could no longer work with CW1. The ARAC spoke with CW1.
CW1 denied calling Complainant a “bitch” but admitted to making the
other statement. CW1 was verbally reprimanded regarding his conduct.
When the Resident Agent in Charge (RAC) returned from his detail, he
also spoke with CW1 about this matter.
Complainant alleged that in February 2002, she was subjected to
retaliation when she was asked about a payment for a training class,
asked about whether she was staying with the Agency, and when on February
4, 2002, she overheard CW1 state that he would get back at her by not
giving her work. She contends the Agency failed to investigate her
harassment claim. On February 5, 2002, Complainant left the DEA office.
On March 26, 2002, Complainant filed an EEO complaint alleging that she
was discriminated against on the bases of sex (female) and in reprisal
for prior protected EEO activity when:
1. she was harassed by CW1;
2. Agency officials told her not to tell others of the harassment;
3. Agency officials did not investigate her harassment charge; and
4. the Agency removed her from her Intelligence Analyst position.
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 requested a hearing before an AJ, however, on May 7, 2003,
the AJ granted the Agency’ motion for a decision without a hearing
for lack of jurisdiction. On June 25, 2003, the Agency issued a final
order adopting the AJ’s dismissal.
On July 22, 2003, Complainant appealed the Agency’s June 25, 2003 final
order arguing that she was covered by Title VII’s protections and
requesting a different AJ be appointed to hear her case. In response
to Complainant's appeal, the Agency argued that the record contained
insufficient evidence for the AJ to make a determination on the question
of jurisdiction in the case and that it adopted the AJ’s finding
despite this because it had no authority to remand the complaint back
to the AJ for a more detailed evaluation of Complainant’s employment
status with the Agency. The Commission vacated and remanded the
Agency’s final order, finding that the record contained insufficient
evidence to determine if complainant was an employee of the agency.
Pugliese v. Dep’t of Justice, EEOC Appeal No. 01A34443 (April 15,
2004). The Commission ordered the agency to supplement the record and
issue a new final order either accepting or denying the AJ’s May 7,
2003 dismissal. Id. In the event the Agency declined to implement the
AJ's decision, the Commission instructed the Agency to appeal to the
Commission as provided in 29 C.F.R. § 1614.110(a). Id.
On September 22, 2004, the Agency issued a new final order finding
that Complainant could be considered an employee of the agency for
the purposes of invoking Title VII. Essentially, the Agency rejected
the AJ’s dismissal. However, rather than filing its own appeal as
required under 29 C.F.R. § 1614.110(a), the Agency informed Complainant
by letter that the Commission may be required to rule on the issue of
jurisdiction. The Agency also stated “[i]n any event, the [agency] will
not contest such an appeal as it relates to the jurisdictional issue.”
Pugliese v. Dep’t of Justice, EEOC Appeal No. 01A51412 (June 13, 2006).
Complainant appealed this final order to the Commission. The Commission
issued a decision accepting the Agency’s final order finding that
Complainant could be considered an employee for the purposes of her
Title VII case. The Commission then remanded the case to Agency’s
EEO office for investigation on the merits of Complainant’s sex and
reprisal claims. Id.
At the conclusion of the supplemental investigation, the Agency notified
Complainant of the right to request another hearing before an EEOC
AJ or request a final decision from the Agency. In accordance with
Complainant’s request, on August 9, 2007, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency did not adequately
respond to her complaint of sexual harassment, as evidenced by CW1’s
subsequent threat not to give her work. Complainant further argues that
her supervisors failed to adequately respond to the threat and began to
discourage Complainant from continuing her career with the Agency.
Complainant also contends that with respect to claim 4, her constructive
discharge allegation should have been considered because she was an
employee of the DEA for purposes of Title VII and the record shows
that she suffered damages. Specifically, Complainant maintains that
she should have been given appeal rights to the MSPB, because both the
Agency and the Commission had determined that she could be considered
an employee for the purposes of this case. Complainant further argues
that the Agency erred in determining that she was not constructively
discharged because she did not suffer any damages.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (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”).
ANALYSIS AND FINDINGS
Preliminarily, we note that the Commission has the discretion
to only review issues that are specifically raised in an appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), 9-10 (November 9, 1999). Accordingly, we will only
address Complainant’s contentions regarding the effectiveness of the
Agency’s response to her allegations of a hostile work environment
and her constructive discharge claim.
Harassment
To establish a claim of sex-based harassment a complainant must show
that: (1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment 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). Further,
the incidents must have been “sufficiently severe or pervasive to
alter the conditions of [complainant's] employment and create an abusive
working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993). 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 at 6 (Mar. 8, 1994).
With respect to element (5), in the case of co-worker harassment, an
Agency is responsible for acts of harassment in the workplace where
the Agency (or its agents) knew or should have known of the conduct,
unless it can show that it took immediate and appropriate corrective
action. Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118
s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775,
118 S. Ct. 2275, 2292-93 (1998).
In this case, we find that while Complainant was subjected to sexual
comments and a sexually charged environment, the Agency acted promptly
and effectively in addressing the unwelcome situation and therefore
liability cannot be imputed to the Agency. Specifically, while CW1’s
behavior was known in the office, Complainant was witnessed participating
in and not objecting to this type of banter with CW1.1 The evidence
also shows that as soon as she complained about CW1’s behavior,
he was immediately questioned about the incident and was counseled.
The record further reflects that after CW1 was counseled, he made no
further statements of a sexual nature to Complainant. As such we find
that the Agency’s actions were immediate and appropriate. Accordingly,
we find that the evidence supports a finding that the Agency can not be
held liable for the harassing behavior that Complainant experienced.
Constructive Discharge
A mixed case complaint is a complaint of employment discrimination
filed with a federal agency, relating to or stemming form an action
that can be appealed to the Merit Systems Protection Board (MSPB).
29 C.F.R. § 1614.302(a)(1). An aggrieved person may elect to file
initially a mixed case complaint with an Agency or may file a mixed
case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151,
but not both. 29 C.F.R. § 1614.302(c)(2)(i). If the Agency questions
the jurisdiction of the MSPB, the Agency shall hold the EEO complaint in
abeyance until a MSPB Administrative Judge rules on the jurisdictional
issue. See 29 C.F.R. § 1614.302(c)(2)(ii).
In this case, we find that the Agency erred when it did not hold
Complainant’s mixed case complaint, alleging a constructive discharge,
in abeyance until the matter of jurisdiction was resolved by the MSPB.
The Agency, in its August 9, 2007 final decision, states that a problem
with Complainant’s constructive discharge claim is “that Complainant
is not a DEA employee, but was detailed to DEA as an employee of the
National Guard.” Accordingly, we find that Complainant should have
had the opportunity to appeal this question of jurisdiction to the MSPB.
The Agency erred in failing to give her appeal rights to the MSPB.
Nevertheless, we find that, due to the passage of time and the fact
that the claim of constructive discharge is inextricably intertwined
with Complainant’s hostile work environment claim, it is appropriate
to address her contentions below.
Constructive discharge occurs when an employer deliberately renders an
employee’s working conditions so intolerable that the individual is
forced to leave/retire from his position. Constructive discharge only
occurs when the Agency’s actions were taken with the intention of
forcing the employee to leave/retire. The Commission has established
three elements that Complainant must prove to substantiate a claim
of constructive discharge: 1) a reasonable person in Complainant’s
position would have found the working conditions intolerable; 2) the
conduct causing the intolerable working conditions is an EEO violation;
and 3) Complainant's resignation was caused by the intolerable working
conditions. See Taylor v. Army and Air Force Exch. Serv., EEOC Request
No. 05900630 (July 20, 1990); see also Perricone v. U.S. Postal Serv.,
EEOC Request No. 05900135 (June 11, 1990).
The Commission finds that Complainant has failed to show that she
was forced to resign because of intolerable working conditions.
The record shows that Complainant left the detail on her own accord.
Although Complainant was concerned about the threat of retaliation from
CW1 when she overheard him threatening to “get even” with her, we
find that Complainant failed to demonstrate that her working conditions
were intolerable. The record reveals that all communication between
Complainant and CW1 had ceased. Moreover, we note that Complainant did
not give the Agency an opportunity to investigate whether CW1 actually
made the statement on February 4, 2002, and to take action if he was
found to have done so, before she decided to end her detail on February
5, 2002. Therefore, we simply can not find that her resignation was
caused by an intolerable working condition that was an EEO violation.
We find that based on the totality of the evidence Complainant has failed
to show that she was subjected to a constructive discharge.2
CONCLUSION
Based on a review of the record and the contentions on appeal, including
those not specifically addressed herein, we find that Complainant has
not proven that she was discriminated against as alleged. The Agency’s
FAD is therefore affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (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
___8/12/11_______________
Date
1 Sexual conduct or activity will not constitute harassment unless it
is unwelcome. 29 C.F.R. § 1604.11. In order to determine whether
the conduct was unwelcome, the Commission must examine whether, by
her conduct, Complainant indicated that the conduct was unwelcome.
Bobbett v. Dep’t of Justice, EEOC Appeal Nos. 07A00013; 07A00029
(Dec. 13, 2002); citing EEOC Policy Guidance on Current Issues of Sexual
Harassment, No. N-915-050 p. 9 (March 19, 1990). We must also examine
whether Complainant participated in or condoned the conduct, e.g., by
acting in a sexually aggressive manner or engaging in sexually-oriented
banter such that the conduct was not unwelcome. Bobbett v. Dep’t of
Justice, EEOC Appeal Nos. 07A00013; 07A00029 (Dec. 13, 2002); Sullivan
v. Federal Deposit Ins. Corp., EEOC Appeal No. 01991021 (June 8, 2000)
(active participation in sexual remarks or conduct, e.g., telling dirty
jokes, and failure to provide subsequent notice that the conduct was no
longer welcome may indicate that the sexual advances complained of were
not unwelcome).
2 Additionally, we note that although Complainant contends that she
lost the opportunity of full-time employment with the DEA, she has
not presented any evidence which demonstrates that she was barred from
applying for employment at the Agency.
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0120073932
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073932