EEOC Appeal Nos. 0120150940, 0120150941 & 0120151220
04-13-2016
Scarlet M., Maxima R., & Sharolyn S. v. Dep't of the Navy
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Scarlet M.,1
Maxima R., 2
Sharolyn S., 3
Complainants,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120150940, 0120150941, & 0120151220
Agency Nos. 13-00174-02926, 13-00174-02919, & 14-00174-00062
DECISION
Each of the three complainants timely filed an appeal from her respective Agency's final decision concerning her equal employment opportunity (EEO) complaints 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. As the underlying facts are the same in all three complaints, we have consolidated them for a joint appellate decision. See 29 C.F.R. � 1614.606.
BACKGROUND
At the time of events giving rise to this complaint, the complainants worked at the Army Ammunition Plant, Building 567, located in McAlester, Oklahoma. The Agency indicated that it was a division of the Indian Head Explosive Ordnance Technology Division of the Naval Surface Warfare Center located in Indian Head, Maryland.
Complainant 1 was a Technical Writer, Complainant 2 was a Secretary, and Complainant 3 was a Clerk at the McAlester facility. Complainants 1 and 2 worked for, and in the same building as, the Director, who was the senior Agency official at McAlester. Complainant 3, as part of her duties as a clerk, would enter Building 567 three to four times a month to stock the vending machines.
On August 14, 2013, a female employee walked into the Director's office and noticed that the television in his office had the image of one of the women's bathrooms within Building 567. When the Director left the office for the day on August 14, 2013, two employees looked in the bathroom and found cables. One of the employees reported the incident that evening to the Base Security. That evening, the Department Head, who was located at the Agency's facility in Indian Head, Maryland, was called at his home and made aware of a video camera located in the women's bathroom in Building 567. Within days, the Department Head left Maryland and travelled to the McAlester facility to deal with the situation.
An investigation of the matter was conducted by Agency investigators, as well as the Federal Bureau of Investigation (FBI), which concluded that the Director had installed a hidden video camera in the women's restroom in Building 567. The Department Head placed the Director on unpaid administrative leave on August 21, 2013, and barred him from the facility and from contacting any employees at the facility. The Department Head held meetings with employees to inform them of the matter and offer counseling to anyone who needed it. Complainants learned of the Director's actions through these meetings.
As a result of the investigation, Agency management started the process of removing the Director. However, effective August 31, 2013, the Director retired from his position with the Agency.
The U.S. Attorney's Office for the Eastern District of Oklahoma charged the Director with video voyeurism between July 1, 2013 and August 14, 2013. The Director pled guilty to the charges in February 2014.
Complainant 1 filed an EEO complaint on December 4, 2013, alleging that the Agency subjected her to discrimination on the basis of sex (female) when the Director filmed her and other women using the restroom in Building 567. At the conclusion of the investigation, the Agency provided Complainant 1 with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant 1 requested a final agency decision.
On December 9, 2014, the Agency issued its final decision to Complainant 1 find no discrimination. The decision concluded that Complainant established that the Director created a discriminatory hostile work environment. However, the Agency determined that it established its affirmative defense avoiding liability for the actions of the Director. Specifically, the Agency noted that it had a sexual harassment policy in place which was provided to the employees. Once the employees became aware of the hostile work environment, the Agency was informed of the Director's actions. The Agency held that as soon as management was informed of the Director's actions, it took prompt, effective action to prevent the offensive conduct from continuing, as well as providing counseling to the involved employees. Therefore, the Agency concluded that it avoided liability for the offensive environment created by the Director's actions.
On December 10, 2013, Complainant 2 filed her EEO complaint also alleging that she was subjected to harassment on the basis of sex (female) when the Director filmed her and other women using the restroom in Building 567. At the conclusion of the investigation, the Agency provided Complainant 2 with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant 2 requested a final agency decision.
The Agency issued a final decision, pursuant to 29 C.F.R. � 1614.110(b) on December 15, 2014. The decision concluded that, as in the decision for Complainant 1, that Complainant 2 established that she was subjected to harassment by the Director. However, the Agency again concluded that it established its affirmative defense and was not liable for the harassment experienced by Complainant 2.
Complainant 3 filed a formal complaint on December 17, 2013, alleging harassment based on sex (female) when, on 14 August 2013, she learned that the Director installed video equipment in the women's restrooms located in Building 567. Although Complainant 3's office as not located in Building 567, she came to the building regularly and asserted that she was shown a still photo of the women's bathroom by the FBI. In the photo, Complainant 3 identified herself.
At the conclusion of the investigation, the Agency provided Complainant 3 with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. When Complainant 3 did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) on January 16, 2015. As with Complainant 1 and Complainant 2, the Agency found that Complainant 3 established that she was subjected to harassment and that it had established the affirmative defense to avoid liability.
Complainant 1, Complainant 2, and Complainant 3 filed their appeals. All three Complainants were represented by the same attorney (Attorney). The Attorney submitted briefs in support of each appeal. The arguments were the same in each appeal. Among other arguments, the Attorney, citing to Tenth Circuit case precedent, asserted that the Agency cannot avoid liability for the actions of the Director. In sum, the Attorney asserted that the Agency failed to meet its burden of proof to establish a defense that they should not be liable for the acts of the Director. Therefore, the Attorney argued that the Complainants are entitled to compensation.
In its response to the appeal, the Agency claimed for the first time that the Director's action did not rise to the level of creating a hostile work environment for the employees who were not aware of the Director's camera. The Agency also argues that it should not be held liable for the Director's actions because it took prompt and effective action to prevent further harassment and correct what had already occurred. In sum, the Agency requested that we affirm its decisions finding no liability for the Agency based on the actions of the Director.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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 note that the events surrounding all three complainants are the same. All three are represented by the Attorney who presented the same arguments on appeal. Further, the Agency's final decisions came to the same conclusions. The Agency's final decisions concluded that the Director had subjected the complainants to a hostile work environment. However, the Agency concluded that it established the affirmative defense and avoided liability. Based on the facts of these cases, we find that, for the sake of administrative economy, shall address all three appeals in the instant decision.
It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, the complainants must show that: (1) they belong to the statutorily protected class; (2) they were subjected to unwelcome conduct related to their membership in that class; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with their 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
In sum, to prove her harassment claim in this case, each complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Each complainant must also prove that the conduct was taken because of a protected basis - in this case because of her sex. Only if complainants establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Here, the Agency, in its final decisions for all three complainants, conceded that there was "clear evidence of unwelcome conduct of a sexual nature" and that the Director admitted that he only videotaped women. The Agency also admitted in its final decisions that the Director's actions "clearly created an offensive work environment" for complainants. With these concessions, the Agency concluded that the complainants had established the first four elements of their legal claim, leaving the only remaining question whether or not the Agency was liable for the Director's actions. While the Agency, in its brief on appeal, attempts to rescind some of its concessions, we are not persuaded by its arguments, and agree that the only outstanding issue to be determined is whether or not the Agency is liable for the Director's actions.
An employer is subject to vicarious liability for unlawful harassment if the harassment was "created by a supervisor with immediate . . . authority over the [complainant]." Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) ("Vicarious Liability Guidance"), at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)). However, where, as here, the harassment does not result in a tangible employment action being taken against the employee, the Agency can make out an affirmative defense by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any 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 Burlington Industries, supra; Faragher, supra; Vicarious Liability Guidance, at 12. Whether an employer can prove the first prong of that defense, i.e., that it exercised reasonable care to prevent and correct promptly any harassing behavior, depends on the circumstances of the particular situation. Vicarious Liability Guidance, at 15.
The Agency argues that that it avoids liability for the actions of the Director because it had an anti-harassment policy and procedure in place, and once it was informed of the Director's conduct, it took prompt action to correct the actions of the Director. Even accepting this as correct, however, only establishes the first prong of the test described above for the Agency's affirmative defense. We determine, for the reasons stated below, that the Agency failed to establish the second prong of its affirmative defense. The second prong of the affirmative defense requires a showing by the employer that the aggrieved employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 118 S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270. The burden lies with the employer to prove that the employee's failure to complain was unreasonable. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No, 915.002 (June 18, 1999). In the case at hand, the harm began as soon as the Director placed the camera in the women's bathroom, which occurred at least a month before it was discovered on August 14, 2013. Within hours that same evening, the Base Security was informed of the camera in the bathroom. As such, we cannot find that the affected employees unreasonably failed to take advantage of any preventative or corrective opportunities.
In some circumstances, such as the one at issue, unlawful harassment will occur and harm will result despite the exercise of requisite legal care by the employer and employee. For example, if an employee's supervisor directed frequent, egregious racial epithets at him that caused emotional harm virtually from the outset, and the employee promptly complained, corrective action by the employer could prevent further harm but might not correct the actionable harm that the employee already had suffered. In these circumstances, the employer will be liable because the defense requires proof that it exercised reasonable legal care and that the employee unreasonably failed to avoid the harm.4 While a notice-based negligence standard would absolve the employer of liability, the standard set forth in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) does not. As the Court explained, vicarious liability sets a "more stringent standard" for the employer than the "minimum standard" of negligence theory. Ellerth, 118 S. Ct. at 2267.
While this result may seem harsh to a law abiding employer, it is consistent with liability standards under the anti-discrimination statutes which generally make employers responsible for the discriminatory acts of their supervisors. If, for example, a supervisor rejects a candidate for promotion because of national origin-based bias, the employer will be liable regardless of whether the employee complained to higher management and regardless of whether higher management had any knowledge about the supervisor's motivation. Harassment is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, and that limitation must be construed narrowly. The employer will be shielded from liability for harassment by a supervisor only if it proves that it exercised reasonable care in preventing and correcting the harassment and that the employee unreasonably failed to avoid all of the harm. If both parties exercise reasonable care, the defense will fail. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999); see also Complainant v. Dep't. of the Army, EEOC Appeal No. 0120111865 (July 9, 2014).
We also note that the Director was the highest ranking Agency official at the McAlester facility. On occasion, the Commission has recognized the "alter ego" theory of liability in a harassment case where the harasser is of sufficiently high rank to be treated as the Agency's proxy, resulting in his conduct being directly imputed to the Agency. See Sebek v. Department of Justice, EEOC Appeal No. 07A00005 (March 8, 2001).
Accordingly, because the Agency cannot establish its affirmative defense, we find that it is liable for the harassing conduct of the Director of Complainant 1, Complainant 2, and Complainant 3 sufficient to create a hostile and offensive work environment.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decisions and REMAND the matter for further action in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
1. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainants notice of their right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of their claims for compensatory damages within forty-five (45) calendar days of the date the Complainants receive the Agency's notice. The Agency shall complete the investigations on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives complainants' claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
2. The Agency is directed to conduct training for the management particularly regarding recognizing a hostile work environment. The Agency shall address managaement's responsibilities with respect to eliminating harassment in the workplace.
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.
POSTING ORDER (G0914)
The Agency is ordered to post at the Army Ammunition Plant, Building 567, located in McAlester, Oklahoma copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 13, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant 1's name when the decision is published to non-parties and the Commission's website.
2 This case has been randomly assigned a pseudonym which will replace Complainant 2's name when the decision is published to non-parties and the Commission's website.
3 This case has been randomly assigned a pseudonym which will replace Complainant 3's name when the decision is published to non-parties and the Commission's website.
4 See Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999) (in order for defendant to avoid all liability for sexual harassment leading to rape of plaintiff "it must show not merely that [the plaintiff) inexcusably delayed reporting the alleged rape ... but that, as a matter of law, a reasonable person in [her] place would have come forward early enough to prevent [the] harassment from becoming 'severe or pervasive"')
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150940
9
0120150940, 0120150941, 0120152220