07A00008_r
04-17-2002
Shelia Duhn, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Shelia Duhn v. Department of Transportation
07A00008
April 17, 2002
.
Shelia Duhn,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 07A00008
Agency Nos. DOT-6-96-6058
DOT-6-96-6078
Hearing Nos. 340-96-3773X
340-97-3029X
DECISION
The agency timely appealed the decision of the Administrative Judge (AJ)
finding that complainant was subjected to discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. �
1614.405.<1>
The record reflects that the agency transferred complainant from its
facility in Farmington, Minnesota to Palmdale, California, to work
as a GS-9 Air Traffic Controller trainee at its Los Angeles Center.
While at the Los Angeles Center, complainant filed the captioned
EEO complaints with the agency, claiming both sexual harassment and
retaliatory harassment due to a hostile work environment.
Regarding her sexual harassment claim, complainant claimed that she worked
in a �barroom� atmosphere, and that male co-workers, including the senior
level co-worker assigned to train her as a Air Traffic Controller, engaged
in offensive foul language, leering, lewd conversation, and display of a
sexually offensive poster. Complainant indicated that she reported this
conduct as sexual harassment to a second line supervisor in August 1995.
Thereafter, complainant claimed that she was shunned by co-workers and
warned/threatened that going to management regarding such matters
could result in transfer to a less desirable facility or even being
deliberately �washed out� of her training. Complainant additionally
stated that various managers questioned her in a hostile accusatory
manner regarding the conduct she reported.
The record indicates that in response to her complaint, the agency
reassigned complainant to another area of the Los Angeles Center, and that
she then had a three-week maternity leave in October 1995. During her
maternity leave, complainant contacted an EEO Counselor regarding the
purported harassment described above. Complainant claimed that while she
was still on maternity leave, a named co-worker visited her and informed
her that other co-workers were inquiring about whose names she gave to
the EEO Counselor. Complainant also claimed that she received numerous
�hang-up� phone calls at her home while on maternity leave.
The record shows that after returning from maternity leave, complainant
first worked in her previous reassignment area, but then was reassigned to
back to the Air Traffic Controller area, which complainant claims was an
act of reprisal.<2> Additionally, in February 1996, complainant claimed
that her leather jacket was stolen as an act of reprisal by co-workers,
and that rather than properly investigating the situation, the agency
instead accused her of slandering co-workers regarding notes she placed in
their mailboxes seeking return of her jacket. Complainant further claimed
that in response to her note, she received threatening anonymous notes,
one which said in pertinent part: �you better not call an EEO Counselor
if you ever want to see your jacket alive.� Complainant averred that
she began to fear for the security of her personal property, as well
as her personal safety, after receiving this note, but that the agency
failed to respond to her concerns. Complainant claimed that this lead
to her developing situational depression, verified by her physician,
and resulting in her being placed in leave without pay (LWOP) status.
The agency accepted both of complainant's complaints. When the agency
failed to complete its investigation of the complaints within 180 days,
complainant requested a hearing before an AJ.
The AJ consolidated the complaints, and following a hearing, issued
a decision concluding that complainant failed to prove that she was
subjected to sexual harassment due to a hostile work environment.
Specifically, the AJ found that while the claimed conduct was pervasive,
it was not sufficiently severe to constitute a hostile work environment
under the applicable legal standards. In particular, the AJ found that no
physical incidents were alleged, and that none of the identified conduct
was specifically directed at complainant. The AJ also determined that
none of complainant's female co-workers who worked in the same environment
were offended by the conduct at issue. Moreover, the AJ found that even
if complainant had proven her claim of sexual harassment, the agency
avoided liability because it took prompt and effective remedial action
regarding her report of this conduct, including removal of the poster
and reassignment of complainant.
However, the AJ next concluded that complainant prevailed in showing
that the agency engaged in retaliatory harassment toward her after she
reported the claimed sexual harassment to agency officials, as well as
after contacting an EEO counselor, and filing the captioned complaints.
The AJ first found that the temporal proximity of complainant's
protected activities and the acts of harassment at issue demonstrated
the required causal nexus to establish a prima facie case of reprisal.
See Hochstadt, supra. Specifically, the AJ determined that complainant
�openly complained� about the purported sexually harassing conduct
in August 1995, and was immediately ostracized and intimidated by
threats of being �washed out� or reassigned to another facility. Then,
after engaging in the EEO process in October 1995, the AJ determined
that complainant was subjected to further threats about her training
and reassignment, in addition to the theft of her jacket and receipt of
threatening notes, all which the agency refused to meaningfully address.
Notwithstanding the agency's arguments to the contrary, the AJ then
found that complainant's fears about being �washed out� of training and
reassigned to another facility were reasonable, as were her concerns
for the security of her personal property and personal safety, as well
as her distress at the agency's lack of a response to these concerns.
Based on the totality of this evidence, the AJ determined that complainant
demonstrated that she had been subjected to a �hostile work environment�
due to retaliatory harassment, finding that it was subjectively and
objectively hostile. Furthermore, the AJ determined that the agency was
liable for failing to adequately address this harassment. Specifically,
the AJ found that the agency's response to the claimed retaliatory
harassment, consisting of the perfunctory investigation of the jacket
theft, mere verbal assurances to complainant that her training was not in
jeopardy, the issuance of a generalized memorandum in March 1996, and the
offer of transfer to an �undesirable�<3> facility, were all ineffective
in allaying complainant's fears or putting a stop to the threats and
intimidation. The AJ determined that complainant was entitled to �make
whole� relief based on the retaliatory harassment she endured.
On appeal, the agency first argues that the AJ improperly included
reprisal as a basis for complainant's harassment claim, and used an
inapplicable legal authority to do so, thereby depriving the agency of
the opportunity to adequately defend itself. Second, the agency argues
that the AJ erred in finding that complainant established a prima facie
case of retaliatory harassment, arguing that she failed to prove that the
agency subjected her to an adverse action regarding a term or condition
of her employment, or that management otherwise played a role in the
harassment. Third, the agency argues that the AJ erred by failing
to make credibility findings regarding complainant's motivation for
filing the complaints, suggesting that it may just be a ploy to obtain
a transfer to her home in Minnesota. Finally, the agency argues that
the AJ erred by excluding a witness who would testify that complainant
flipped a finger to another driver in traffic, arguing that this shows
that complainant is an assertive person.
In response, complainant argues that the agency is merely re-arguing facts
already considered by the AJ, and the appeal reflects only disagreement
with the AJ's conclusions. Complainant requests that the Commission
uphold the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
We find that complainant specifically raised reprisal as a basis in her
second complaint (DOT-6-96-6078), and that the agency's acceptance letter,
dated May 23, 1996, accepted reprisal as a basis of her harassment claim.
Moreover, the record reflects that the AJ consolidated these complaints,
and it is clear from the record, including the hearing transcript,
that these complaints raise a single claim of sexual harassment and
a single claim of retaliatory harassment. Therefore, we find that
the agency knew, or should have known, the scope of complainant's
claim of retaliatory harassment. In fact, we find that to view these
claims as unrelated complaints would result in an improper fragmenting
of these claims. See Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999) and Smith v. Department of Transportation,
EEOC Request No. 05980268 (May 26, 1999). Accordingly, we conclude that
the AJ did not err when she determined that the incidents raised in both
complaints could be used as evidence to support complainant's claim of
retaliatory harassment.
Next, we find that the AJ properly determined that complainant prevailed
in proving her claim of retaliatory harassment under the legal standards
recognized by the Commission. Specifically, under the Commission's view,
an �adverse action� is broadly construed as any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity. See EEOC
Compliance Manual, Section 8 (Retaliation) at 8-13 - 8-14 (May 1998).
Moreover, in this case, complainant raises a harassment claim, as
opposed to a claim of disparate treatment. Therefore, complainant need
not demonstrate an �adverse action� concerning a �term or condition
of employment,� but instead must prove that the identified actions
were taken for the purpose of harassment due to retaliatory animus.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Accordingly, we find that the AJ properly analyzed
complainant's claim of retaliatory harassment, and we find no error as
argued by the agency.
Finally, we find that the AJ adequately addressed complainant's personal
desire to return to Minnesota, and find no reason to question her
credibility determinations regarding any of the witnesses, including
complainant. Additionally, we find no error in excluding the testimony
of an agency witness purported to show that complainant is �assertive.�
Specifically, we find that this evidence has little or no probative
value regarding her claim of retaliatory harassment in light of the AJ's
finding that the work environment complainant endured was objectively
hostile due to retaliatory harassment.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order and REMANDS the matter to the agency
to take corrective action in accordance with this decision and the
ORDER below.
ORDER
1. Within (30) thirty calendar days of its receipt of this decision,
the agency shall offer complainant a position comparable to her current
GS-9 Air Traffic Controller position, at a facility
comparable to its Los Angeles Center, which is not connected by
landlines to its Los Angeles Center. The agency is not required to
transfer complainant to its Farmington, Minnesota facility if these
conditions are satisfied.
2. Within (30) thirty calendar days of its receipt of this decision,
the agency shall restore any sick and annual leave used by complainant as
a consequence of the hostile work environment caused by the retaliatory
harassment.
3. Within (30) thirty calendar days of its receipt of this decision,
the agency shall determine the amount of back pay due complainant, and
other benefits, based on the time she spent in Leave Without Pay status,
excluding that amount of time that complainant refused to work anywhere
except the Farmington, Minnesota facility.
4. Within (30) thirty calendar days of its receipt of this decision,
the agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the retaliatory harassment. The agency shall afford complainant
(30) thirty calendar days to submit additional evidence in support of
her claim for compensatory damages. Within (30) thirty calendar days
of its receipt of complainant's evidence, the agency shall issue a final
decision determining complainant's entitlement to compensatory damages,
together with appropriate appeal rights.
5. The agency shall provide no less than (24) twenty-four hours
of training for each responsible management official, including
complainant's trainer, her second line supervisor, and the Manager and
Assistant Manager at the Los Angeles Center, regarding the obligations
of management officials concerning employee reports of retaliatory
harassment, especially threats made to employees for the purposing of
dissuading them from pursuing the EEO process.
6. The agency shall submit a report of compliance, as provided in the
statement entitled �Implementation of the Commission's Decision.� The
report shall include supporting documentation of the agency's calculations
of back pay and benefits due complainant, including evidence that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Los Angeles Air Traffic Control
Center in Palmdale, California, copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 17, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On appeal, complainant's attorney claims that the agency failed to
timely serve him with either the final order or the instant appeal,
and requests that the Commission dismiss the appeal. In response,
the agency submits affidavit evidence to demonstrate timely service
on complainant's attorney. In light of this evidence, and because
complainant in this case was not disadvantaged by the purported untimely
service by the agency, and because the agency timely filed its appeal
at the Commission, we accept the appeal.
2In her decision, the AJ determined that the agency official responsible
for transferring complainant was unaware of her reports of harassment
or participation in the EEO process. Neither party disputes this
finding. Accordingly, we conclude that this incident may not be properly
included in complainant's claim of retaliatory harassment. See Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
3The AJ found that complainant could not obtain a full performance
level (GS-14) at this facility, and in light of management's failure
to stop the current rumors and threats against complainant, there was
a likelihood that these same co-workers would damage complainant's
reputation at the new facility as well, which shared �landlines� with
the Los Angeles Center.