0120080564
03-13-2008
Stacey L. Broaddus, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Stacey L. Broaddus,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080564
Agency No. 076016902122
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 16, 2007, dismissing her complaint of unlawful
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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of sex (female) when:
1. a coworker (CW: male) sexually harassed complainant by using vulgar
language, inappropriate physical contact, and by exposing himself to
complainant.
The agency dismissed the complaint for failure to state a claim, on the
grounds that the agency took prompt and appropriate corrective action.
We note, however, that such immediate and appropriate action goes to
the agency's liability for the harassment, see 29 C.F.R. � 1604.11(d),
not to the issue of whether or not complainant has stated a claim.
Furthermore, it is not clear from the record whether the agency did,
in fact, take prompt and appropriate action. The record contains a copy
of an electronic message sent to complainant on November 26, 2007 which
states only that a military board recommended that CW be removed from the
agency, but there is no record evidence that such removal ever occurred,
and if so, when it occurred. Nor does the record reveal whether CW
and complainant worked in close proximity and whether management took
immediate action to remove CW from complainant's workspace once notified
of her allegations against him. In this regard we note that the FAD
states that management was notified of the harassment on May 15, 2007,
while the military board did not meet to hear the matter until sometime1
between October 17, 2007 and November 26, 2007.
Complainant's allegations against CW include claims that he subjected
her to vulgar sexual language, physical touching, and that he exposed
himself to her. In considering whether any of the above actions, whether
individually or collectively, constitute harassment, the Commission
notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the complainant's employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
To establish a claim of harassment a complainant must show that: (1)
he belongs to a statutorily protected class; (2) he was subjected to
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; (4) the harassment had the purpose or effect of unreasonably
interfering with his 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 McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The Commission finds that complainant's allegations state a claim of
sexual harassment. Accordingly, the agency's final decision dismissing
complainant's complaint is reversed. The complaint is hereby remanded
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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
March 13, 2008
__________________
Date
1 The record contains a copy of an electronic message dated October 17,
2007 notifying complainant that the hearing was to be conducted in the
future, and another message dated November 26, 2007 notifying her that
the hearing had concluded.
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0120080564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080564