01971055
02-19-1999
Roseann Mangano, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Roseann Mangano v. Department of Justice
01971055
February 19, 1999
Roseann Mangano, )
Appellant, ) Appeal No. 01971055
) Agency No. I-93-6230
v. )
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
On November 20, 1996, Roseann Mangano (hereinafter referred to as
appellant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to her complaint of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on October 21, 1996. The appeal is accepted by this Commission
in accordance with the provisions of EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant was subjected to hostile
environment sexual harassment.
BACKGROUND
On April 27, 1993, appellant, a Special Agent with the agency's
Immigration and Naturalization Service (INS), filed a formal EEO complaint
alleging that she had been subjected to sexual harassment for a period
of four and one-half years, including receiving undue attention from her
second-level supervisor (Responsible Official 1; RO1); having rumors
spread by co-workers that she was having an affair with RO1; being
subjected to graffiti and posters implying that she and RO1 were having
an affair; receiving limited field assignments; receiving lower than
deserved performance appraisals; and receiving a proposed suspension.
The agency accepted appellant's complaint for processing, and conducted
an investigation. The agency then provided appellant with a copy of the
investigative report, and advised appellant of her right to request either
a final agency decision or a hearing before an Administrative Judge.
Appellant requested a final agency decision in the matter.
Thereafter, the agency issued a final decision dated October 17,
1996, finding no discrimination. The agency found that appellant was
subjected to sexual harassment by her co-workers. Specifically, the
agency cited evidence showing that rumors were in fact spread to the
effect that appellant was having an affair with RO1, and that posters
and graffiti implying an affair were displayed at appellant's office.
In addition, the agency noted that many male co-workers, including one
of appellant's supervisors (Responsible Official 2; RO2) referred to
appellant as "Princess." The agency stated that it was undisputed that
appellant received unwelcome attention from RO1, and that RO1's actions
incited the rumors of an affair. The agency found that RO1's actions
were cause for concern given his status as a supervisor and the fact
that appellant was one of the few women in the office.
Nevertheless, the agency determined that the record did not conclusively
show that the harassment was sufficiently severe and pervasive.
Specifically, the agency cited the duration of the harassment. The agency
also stated that there was insufficient evidence to support appellant's
assertion that her work assignments, performance ratings, and proposed
suspension were influenced by RO1. Finally, the agency stated that,
even assuming the harassment was severe and pervasive so as to alter
appellant's working conditions, management adequately addressed the matter
by December 1989. It is this decision from which appellant now appeals.
A review of the record reveals that appellant began working for the
agency as a Criminal Investigator in July 1988. Appellant attended a
Basic Training Course in another state from October 1988 through February
1989, during which time she states that she received numerous telephone
calls from RO1.<1> According to the record, the rumors of an affair
began at the time appellant went to training. Appellant's first-level
supervisor (Responsible Official 3; RO3) stated that she was concerned
about RO1's telephone calls, which she described as being unusual, and
the rumors of an affair. RO3 anticipated there would be problems upon
appellant's return to the office. Appellant stated that, after her
return, RO1 frequently called her into his office, often shutting the
door, and would stop by her desk to talk or bring her food. Appellant
stated that RO1 did not treat other agents this way. RO3 confirmed
that appellant spent a great deal of time in RO1's office, stating that
appellant appeared uncomfortable in RO1's company.<2> Appellant stated
that while she was aware of the rumors at that time, she was intimidated
by RO1 and believed there was little she could do given her status as
a trainee and RO1's supervisory position. Appellant cited a number of
other incidents of harassment, including RO1 leaving a birthday card
on her desk and stating that he would have brought her a cake if he
had not thought it would look strange to others; RO1 inviting her to
attend a consulate function after work; and RO1 visiting her home after
an earthquake in October 1989 and offering to let her stay at his home.
Appellant noted that RO1 advised her in October 1989 that his supervisor
indicated employees were complaining that he was showing favoritism
to her. Appellant stated that RO1 appeared to enjoy the rumors of
an affair. Appellant noted that she asked RO1 on several occasions to
stop calling her into his office because of the rumors, stating that RO1
would frequently comment that she could be transferred if she was unhappy.
Appellant indicated that the undue attention continued through June 1990,
when she was assigned to work at the U.S. Attorney's Office, and that
she heard RO1 was making derogatory statements about her as late as 1993.
Appellant stated that male agents did not want to work with her after
she returned from training. While one co-worker stated that male agents
did not want to work with appellant because of her general incompetence,
other employees, including RO3, opined that co-workers' reluctance to
work with appellant stemmed from the rumors regarding an affair with RO1
and the unwarranted attention appellant received from him. According to
the record, appellant's and RO1's names were found written inside of
a heart on the wall of the men's restroom. In addition, following a
rumor that RO1 and appellant were caught kissing in an office, a poster
was placed in RO1's mailbox and displayed on a filing cabinet showing a
couple embracing with the captions "Caught in a Compromising Position"
and "Guess Jeans and the INS." (Report of Investigation Exh. 49).<3>
A magazine article entitled "A Wild Year in the Life of Roseanne" was
also displayed in the office. (Report of Investigation Exh. 48a).
Several individuals averred that RO1 appeared upset when informed
of the graffiti on the restroom wall and immediately had it removed.
RO1 then questioned various agents regarding the rumors of an affair with
appellant. Appellant complained to RO3 about the rumors in November 1989,
at which time RO3 questioned various male co-workers and informed them
that there would be consequences if the rumors persisted. While RO3
stated that the rumors subsequently stopped, appellant indicated that
they persisted. In a memorandum dated December 5, 1989, appellant stated
that RO3 indicated she should not pursue the matter.
Appellant cited several other actions as evidence of harassment.
Specifically, appellant stated that she received primarily clerical
assignments rather than street work, which limited her ability to develop
cases for prosecution. Appellant indicated that she was assigned to
work with the U.S. Attorney's Office to input data and translate Spanish
tapes. Appellant stated that she, therefore, received lower performance
appraisal ratings.<4> Appellant stated that she was also assigned to
the Employer Sanction Unit, the least desirable unit in the Office.
Finally, appellant received a proposed suspension in December 1992 for
allegedly being insubordinate. The discipline was ultimately rescinded,
after the evidence showed a miscommunication rather that a failure to
follow a direct order.
RO1 denied paying undue attention to appellant, stating that he was
appalled by the rumors regarding the affair. The Assistant Director of
Investigations confirmed that RO1 brought the rumors to his attention,
stating that RO1 was concerned and upset by them, but could not determine
the source. RO1 averred that appellant never indicated that his
actions were offensive or inappropriate. RO1 indicated that appellant's
supervisors were responsible for her work assignments, ratings, and the
proposed discipline. It is noted that both RO1 and RO2 stated that they
did not rate appellant as "Highly Recommends" on her OCORS because of
the insubordination and pending disciplinary action.
Numerous witnesses, including RO2 and RO3, confirmed that RO1 called
appellant into his office and spent more time at her desk than he
did with other agents, and that rumors were circulating regarding an
affair between appellant and RO1. In addition, several co-workers
heard appellant referred to as "Princess." One agent averred that RO1
once made a derogatory comment when appellant walked by and grabbed his
crotch. The majority of employees described appellant as hard working
and professional. Several individuals noted a change in RO1's attitude
regarding appellant after the earthquake incident, stating that appellant
was assigned more clerical duties. Further, several individuals opined
that RO1 had difficulty dealing with female agents and was capable of
retaliation. A number of witnesses also stated that RO1 was heard to
make remarks of a sexual nature regarding female employees.
With regard to appellant's initial performance rating, RO3 stated that
many agents were assigned administrative work, and the assignments
were evenly distributed. RO3 also noted that appellant had the least
seniority in the unit. RO3 also indicated that while she opposed the
work standards as being variable, all agents were equally effected.
According to the record, appellant was assigned to input data after the
U.S. Attorney's Office requested that one agent be assigned full time to
that task. In addition, the Office apparently requested that appellant be
assigned to translate the tapes because of her Spanish language skills.
Finally, RO2 averred that RO1 insisted he initiate disciplinary action
against appellant for insubordination. RO2 stated that he heard RO1 make
derogatory comments about appellant, and described RO1 as vindictive.
RO2 disputed RO1's assertion that a union official told him he would
file a grievance if appellant was not disciplined.
ANALYSIS AND FINDINGS
Title VII protects individuals from sex-based discrimination in the terms
and conditions of the individual's employment. 42 U.S.C. � 2000e-2(a)(1).
Thus, when an individual is subjected to unwelcome, sex-based harassment
that is "'sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment,'
Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)).
A complainant may prove the existence of sexual harassment in violation
of Title VII where the conduct in question has the purpose or effect
of unreasonably interfering with the individual's work performance
or creating an intimidating, hostile, or offensive work environment.
Hirase-Doi v. U.S. West Communications, 61 F.3d 777, 782 (10th Cir. 1995).
Whether an environment is hostile or abusive should be determined by
looking at all of the circumstances, including the frequency of the
conduct and its severity; whether the discriminatory conduct is physically
threatening or humiliating; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
In the case at hand, the Commission agrees with the agency's determination
that appellant was subjected to a hostile environment by RO1 and her
co-workers. Specifically, the agency pointed to the rumors of a sexual
relationship with RO1, as well as the graffiti and posters displayed at
the facility impling that such a relationship existed. The agency further
stated that it was undisputed that RO1, whose conduct it characterized as
"highly inappropriate," subjected appellant to unwanted attention, spent
an inordinate amount of time with appellant, and made vulgar gestures and
comments of a sexual nature about appellant and other female employees.<5>
(Final Agency Decision p. 38).
The Commission disagrees with the agency, however, that, when taken
as a whole, RO1's conduct and that of appellant's co-workers did not
create an environment so hostile or offensive as to affect the terms and
conditions of appellant's employment. While the agency characterized the
rumors of an affair as being of short duration, the record shows that such
rumors persisted for at least 14 months. In addition, testimony reveals
that the rumors of an affair spread to other offices within the INS.
Further, given that RO1 was appellant's second-level supervisor, we find
the attention appellant received was sufficiently offensive to rise
to a level prohibited by Title VII. Appellant repeatedly stated that
she was intimidated by RO1. In addition, all but one of the co-workers
who addressed the matter stated that male agents were reluctant to work
with appellant because of the rumored relationship with RO1.<6> Such
a finding is supported by the fact that appellant was referred to as
"Princess" by her male co-workers. Therefore, appellant established a
prima facie case of hostile environment sexual harassment.
The agency argued that it is not liable for the sexual harassment,
because immediate and appropriate corrective action was taken as soon as
management was put on notice thereof. Specifically, the agency stated
that, after appellant complained of the rumors in November 1989, RO1 and
RO3 both questioned other agents and the rumors ceased. Nevertheless,
appellant asserted that the rumors persisted in 1991 and 1992, and there
is some evidence in the record showing that the rumors had spread to
another unit in December 1989, that is, after RO1 and RO3 conducted
their investigations.
Furthermore, it appears that no action was taken with regard
to the attention appellant received from RO1. RO3 acknowledged
having concerns regarding RO1's contact with appellant beginning in
March 1989. In addition, RO3 stated that RO1's attention appeared
to make appellant uncomfortable. Given the persistent rumors of an
affair and the reluctance of male co-workers to work with appellant,
it would have been reasonable for RO3 to have taken action at that time.
It is also noted that appellant asserted that the unwelcome contact from
RO1 continued while she was under his supervision, and that the rumors
persisted in 1991 and 1992. Finally, while the agency found that RO1
had no involvement in the proposed discipline, the record supports a
finding that the action, which was then used as a basis for appellant's
OCORS rating, was in fact initiated by RO1.<7>
Where the agency knows or has reason to know about the occurrence of acts
of sexual harassment on the part of a supervisor or employee, the employer
should investigate promptly and thoroughly, and if it fails to take prompt
and appropriate action reasonably calculated to end the harassment, it
will be held liable for a violation of Title VII. Policy Guidance on
Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 29-30
(March 19, 1990); Owens v. Department of Transportation, EEOC Request
No. 05940824 (September 5, 1996).<8> What is appropriate action will
necessarily depend on the particular facts of the case and the severity
and persistence of the harassment, and the effectiveness of any initial
remedial step. Owens, supra. The employer should make follow-up
inquiries to make sure the harassment has not resumed and the victim
has not suffered retaliation. EEOC Notice No. N-915-050 at 30 (March
19, 1990). As stated, management, including RO3, knew of RO1's behavior
and the persistent rumors of an affair, but failed to take appropriate
corrective action. Accordingly, the agency is liable for the harassment
by RO1 against appellant.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to REVERSE the agency's final decision
and to enter a finding that appellant was subjected to sexual harassment.
Consequently, the agency shall comply with the corrective action as set
forth in the following Order.
ORDER (C1092)
The agency is ORDERED to take the following remedial actions:
1. The agency shall take whatever actions it deems necessary, including
but not limited to the actions set forth below, to ensure that neither
appellant nor any other employees are subjected to sexual harassment in
the future.
2. The agency shall ensure that all records of the 1992 proposed
suspension have been expunged from appellant's records. The agency
shall confirm that such actions have been taken in its report to the
Compliance Officer, as stated below.
3. The agency is to conduct training for all named management officials
addressing these employees' responsibilities under equal employment
opportunity law. The training shall place special emphasis on prevention
and elimination of sexual harassment, including the agency's duty to
immediately investigate all complaints of sexual harassment.
4. The agency shall ensure that, in the future, RO1 is not assigned to a
position with supervisory responsibility over the appellant. If this has
not already been accomplished, then the agency shall afford appellant
an optional transfer to an equivalent position in another Branch or,
if she declines such a transfer, by transferring RO1.
5. The agency shall restore to appellant any sick or annual leave she
may have taken in response to the hostile work environment caused by
the sexual harassment.
6. The agency shall conduct a supplemental investigation to determine
whether appellant is entitled to compensatory damages for those acts
of harassment, including the proposed suspension, which occurred after
the enactment of the Civil Rights Act of 1991 on November 21, 1991.
Landgraf v.U.S.I. Film Products, 511 U.S. 244 (1994). During the
investigation, the agency shall allow appellant to present evidence in
support of her claim for damages.<9> Thereafter, the agency shall issue
a final decision as to appellant's compensatory damages claim. Appellant
shall cooperate with the agency. The supplemental investigation and
issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final.
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 documentation verifying
that the corrective action has been implemented, as well as a copy of
the final decision regarding compensatory damages.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Immigration and Naturalization
Service, San Francisco District Office 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 (H1092)
If appellant 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 THAT THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision. To ensure
that your civil action is considered timely, you are advised to file
it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable
time period in the jurisdiction in which your action would be filed.
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 THAT THE DEFENDANT IN THAT THE COMPLAINT THAT
THE PERSON WHO IS THAT 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 (Z1092)
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:
Feb 19, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Although RO1 denied calling appellant more than one time, appellant's
statement was corroborated by her roommate at training.
2Several co-workers also indicated that appellant appeared uncomfortable
by RO1's attentions.
3A Supervisory Special Agent (Responsible Official 4; RO4) stated that
appellant reported the poster and advised him that some agents did not
want to work with her, but did not relate the incidents to RO1 or request
that he take any action in the matter.
4According to the record, appellant received a "Fully Successful" rating
in 1989 and a rating of "Excellent" in 1990. In November 1990, RO2
indicated that he was unable to rate appellant. In addition, appellant
received a rating of "Recommends" for the Officer Corps Rating System
(OCORS) in January 1993.
5These latter actions of RO1, coupled with the rumors of a sexual
relationship, distinguish this case from Fiandaca v. USPS, EEOC Request
No. 05960069 (January 24, 1997), in which the Commission found sex-based,
rather than sexual harassment due to the non-sexual nature of the conduct
in question.
6According to the record, the nature of appellant's position often
required employees to work together on cases.
7It does not appear that RO1 influenced appellant's performance ratings
or assignments. RO2 and RO3 both stated that they assigned appellant
administrative duties equal to those given to other employees and based
upon her status as the junior agent in the unit. In addition, appellant
acknowledged that she was chosen for the translation assignment because
of her language skills.
8See also Faragher v. City of Boca Raton, 118 S.Ct 2275, 2284 (1998)
and Burlington Industries, Inc. v. Ellerth, 118 S.Ct 2257, 2267 (1998).
In addition, these cases hold that subject to an affirmative defense,
employers can be held vicariously liable if supervisors create a sexually
hostile work environment.
9The Commission's decision in Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993), describes in detail the type of evidence
which should be presented in support of a claim for compensatory damages.