01A12480
01-09-2003
Teresita P. Diggs, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Teresita P. Diggs v. Department of the Army
01A12480
January 9, 2003
.
Teresita P. Diggs,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A12480
Agency No. AOEWFO0001A0020
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged in her complaint that she
was subjected to unlawful discrimination and harassment on the basis of
her sex when, from 1993 through September, 1999, she was subjected to
sexually harassing behavior by her immediate supervisor, and, in 1998,
she was not promoted to the position of permanent Assistant Club Manager,
NF-03. For the following reasons, the Commission AFFIRMS the agency's
FAD in part, and REVERSES the agency's FAD in part.
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant was
employed at the Hale Ikena Club at Fort Shafter, Hawaii. For most
of the relevant time period complainant was employed as a Club Clerk,
but she also served as a temporary Assistant Club Manager from July,
1997 through February, 1999. Complainant alleges that in 1993,
shortly after she came under the supervision of the Club Manager (S1),
S1 began making comments of a sexual nature regarding her appearance,
frequently asked her to perform oral sex upon him, and asked to perform
oral sex upon her. Complainant stated that S1 made these oral sex
requests approximately twice a week, in the privacy of his office when
she was delivering paperwork to him. She further stated that she told
him to stop �all the time� but he did not relent, with the exception of
occasional periods, lasting a few months, in which the harassing behavior
would temporarily subside. Complainant stated that S1 continued this
behavior through September, 1999, when he finally stopped making oral
sex requests of complainant.
Complainant further stated that S1 twice made sexual physical contact
with her. In September, 1994, an incident occurred in S1's office,
in which S1 asked complainant for oral sex, she declined, and S1 then
grabbed her and pulled up her skirt and underwear. Complainant stated
that she was scratched on one leg by S1 during her struggle with him.
Complainant also provided that on a Friday in October, 1997, complainant
entered S1's office to deliver some paperwork. S1 then grabbed
complainant by the shoulder with one hand, unzipped his pants with the
other, and pressed his genitals against her buttocks. Complainant stated
that she struggled to free herself from S1's grasp, and that she did so,
but in the process suffered a bruise on her arm.
Complainant also alleged that because she did not agree to S1's oral sex
requests, she was denied a promotion to a permanent NF-03 Assistant Club
Manager position. She contended that she submitted an application for
the position in 1997, but received no response from the agency other than
extension of her temporary assignment to the position. She alleged that
on three separate occasions S1 offered to �do something� to place her in
the position as a permanent employee, if she would perform oral sex upon
him and allow him to reciprocate. She did not perform as S1 requested;
nor did she receive the promotion she sought.
Complainant did not report any of S1's behavior to any agency officials
until November, 1999, claiming that she delayed reporting because of
fear of retaliatory violence from S1. She provided that S1 had told
her that he kept a gun in his car, and that he had used it on a prior
occasion to scare off �locals.� She did not state when she had been so
informed. Complainant also stated that she did not report him because
she was afraid that she would lose her job, and the accompanying medical
insurance benefits she needed to provide care for her daughter, who had
brain cancer.
On November 18, 1999, another employee (C1), who began working for the
agency in October, 1999, reported to the agency that S1 had sexually
harassed her at work. C1 alleged that S1 had began sexually harassing
her at her initial employment interview, when he remarked �um, um, um,
we got a beautiful one here� and sang �I'm so happy� and �I'm in love,
so in love.� C1 stated that subsequently S1 would make comments to her
regarding her appearance and attire, such as saying �um, um, um� and
remarking that the shorts she wore at work could be shorter. She also
reported that on November 3, 1999, she approached S1 and requested
three days off from work, to which S1 replied �no problem� and said they
needed to step into his office. When they entered the office, S1 asked
C1 to come around to his side of a table. C1 complied, and when she came
near S1, he grabbed her by the back of the neck and forcibly kissed her,
shoving his tongue in her mouth. C1 protested and left S1's office.
She tried unsuccessfully to contact S1's supervisor, and then, two weeks
after the fact, reported the incident to the then-Assistant Club Manager
(ACM).
As a result of C1's allegations, S1's direct supervisor (M1) immediately
placed S1 on paid administrative leave, and initiated a disciplinary,
non-EEO investigation into the claims against him. During the course of
this investigation, ACM reported to M1 that she had also been sexually
harassed by S1. ACM alleged that she had been subjected by S1 to
requests to perform oral sex upon him, and to allow him to perform oral
sex upon her. She also stated that S1 liked to �talk dirty� around her,
would touch her shoulder and back, commented �um, um, um� upon seeing
her, and, when he needed something from her, would tell her to �get your
little Filipino ass over here.�<1> ACM indicated that S1 would engage in
this behavior whenever he would see her, which was infrequently, between
1996 and March, 1999, at which time ACM began working at the Hale Ikena
Club under the supervision of S1. ACM stated that she repeatedly told
S1 to stop his harassing behavior, and that, in August, 1999, when she
�firmly� told him to stop, he finally did stop, with the exception of
the �um, um, um� and �little Filipino ass� comments, which continued.
During the agency's disciplinary investigation of the allegations against
S1, ACM told the investigating official that he should also speak to
complainant regarding sexually harassing behavior perpetrated upon her
by S1.<2> After M1 contacted complainant, and complainant reported that
she had been subjected to repeated acts of sexual harassment by S1, M1
issued S1 a Notice of Proposed Removal based upon the sexual harassment
claims of complainant, C1, and ACM. S1 responded to the Notice with two
memoranda denying the claims, but then decided to retire from federal
service rather than fight the charges.
On November 29, 1999, complainant made contact with the agency EEO office,
and initiated the administrative processing of her sexual harassment
claims. Part of the agency's EEO investigation included a fact-finding
hearing conducted by the assigned EEO investigator. During the hearing,
complainant, C1, and ACM testified regarding their sexual harassment
claims against S1, as described above. S1 also provided testimony at the
hearing, denying that he had sexually harassed or threatened complainant.
S1 stated that he thought complainant was pretty and would �dress
sexy,� and that they would joke around at work in a flirtatious manner.
He stated that his comments to complainant never exceeded statements such
as �wow, you look good,� �you got a big butt,� or comments to that effect.
The EEO Counselor who had been contacted by complainant testified that
another employee (C3), who had wished to remain anonymous but by this
point in the proceeding was known to both parties, had stated to the EEO
Counselor that she had also been subjected to sexual harassment by S1,
that S1 had requested in the workplace that she perform oral sex upon him,
and that she had complied with this request on three separate occasions
between October, 1999 and November, 1999. Complainant had sought to
have C3 testify at the fact-finding hearing, but C3 was at that time no
longer employed by the agency.
At the conclusion of the agency's investigation into her complaint,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge or, alternatively, to receive a FAD from
the agency. Complainant requested that the agency issue a FAD. In its
FAD, the agency divided its analysis of complainant's sexual harassment
complaint into claims of harassment resulting in a �tangible employment
action,�<3> and hostile work environment harassment, and concluded that
complainant had failed to prove either claim. As for complainant's
tangible employment action claim�that she had been denied a promotion to
a permanent Assistant Club Manager position because she declined S1's
sexual advances�the agency found that complainant failed to establish
a prima facie case. The agency found that S1 lacked the authority to
permanently promote complainant to the position at issue, but that he
had temporarily promoted her to that position effective July 24, 1997,
and repeatedly extended that temporary assignment through February 3,
1999. The agency also found that complainant had not established that
the alleged conduct of S1 was �unwelcome,� as another coworker (who did
not allege S1 had engaged in sexual harassment) had stated that she had
often witnessed complainant and S1 �joking around in a mildly risque
manner and [complainant] never seemed to take offense at anything said.�
As for complainant's hostile work environment claim, the agency found
that complainant had not demonstrated that S1's conduct toward her
was sufficiently severe to alter the conditions of her employment and
create an abusive work environment. The agency further found that, even
assuming that complainant established a prima facie case for her hostile
environment claims, the agency took prompt and effective corrective
action upon being presented with sexual harassment claims against S1,
immediately placing him on administrative leave, and subsequently
issuing him the Notice of Proposed Removal. The agency stated that
complainant presented no direct evidence, corroborating testimony,
or documentation which would confirm her sexual harassment claims,
and therefore found that she had not been a victim of sexual harassment
as alleged. This appeal followed, in which complainant contends that
there is �overwhelming credible evidence in the record� establishing
that S1 sexually harassed her. Complainant also contends that the agency
failed to prove its affirmative defense to liability for S1's behavior.
The agency responds that the evidence does not support complainant's
claims, but does support the establishment of its affirmative defense
to complainant's claims.
As an initial matter, we note that, as this is an appeal from a FAD issued
without a hearing before an EEOC Administrative Judge, see 29 C.F.R. �
1614.110(b), we apply a de novo standard of review, and our decision is
based upon a preponderance of the evidence. 29 C.F.R. � 1614.405(a).
The United States Supreme Court has recognized that a violation of Title
VII may be predicated on either of two types of sexual harassment:
(a) harassment that results in the employer taking a tangible
employment action against the employee; and (b) harassment that,
while not resulting in the taking of a tangible employment action,
nevertheless creates a hostile work environment. Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998). To establish a prima
facie case of hostile work environment sexual harassment, a complainant
must show that: (1) she belongs to a statutorily protected class; (2)
she was subjected to unwelcome conduct related to her gender, including
sexual advances, requests for favors, or other verbal or physical conduct
of a sexual nature; (3) the harassment complained of was based on sex;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. McCleod v. Social Security Admin., EEOC Appeal
No. 01963810 (Aug. 5, 1999) (citing 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 Systems Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994).
Upon review of the evidence presented in support of and in opposition
to complainant's sexual harassment claims, we find that her allegations
that S1 subjected her to unlawful sexual harassment are supported by a
preponderance of the evidence. As described above, the record contains
testimony by complainant and three agency employees who were subordinate
to S1 and who each described experiencing harassment similar to that
alleged by complainant. While S1 and one other employee testified that
complainant willingly engaged in reciprocal flirtatious behavior, the
balance of record evidence overwhelmingly weighs in favor of a finding
that S1's behavior in the workplace toward complainant was unwelcome,
actionable sexual harassment. Further reinforcing this conclusion, and
undermining S1's testimony, is the testimony of M1. M1 testified that he
investigated the claims leveled against S1 by complainant, C1, and ACM,
and that he found their allegations, and the accompanying emotional pain
they expressed, to be genuine and credible. M1 also testified that S1's
credibility was at issue, as in his opinion there had been times when
S1 had been �less than truthful about a lot of things� regarding events
in the workplace. The balance of the evidence of record, accordingly,
favors a finding that the sexually harassing behavior complained of by
complainant did take place as she alleged.
Having found that complainant was subjected to sexually harassing behavior
as claimed, we turn to examine the agency's liability for the unlawful
actions of S1. As for complainant's tangible employment action claim,
the agency argues that this claim fails because S1 lacked the authority
to promote complainant, and because the proposed promotion does not rise
to the level of a tangible employment action. We disagree. First,
the Commission has long recognized that an employer may be subject to
vicarious liability for harassment by a supervisor who does not have
actual authority over the employee, if the employee reasonably believed
that the harasser had such power. Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors (Enforcement Guidance),
EEOC Notice No. 915.002, at III.B (June 18, 1999). It would certainly
be reasonable for complainant to believe that her immediate supervisor,
who had the authority to assign her to a temporary Assistant Club Manager
position, and to repeatedly renew that assignment over a period of years,
would have the power to influence the ultimate decision of whether or
not to permanently assign her to that position. We therefore disagree
with the agency's first contention.
Second, �tangible employment decisions� made by employees for which the
agency may be held vicariously liable are decisions that significantly
change another employee's employment status. Id. at IV.B; Ellerth, 524
U.S. at 761. Such actions include, but are not limited to, promoting or
failing to promote an employee. Enforcement Guidance, at IV.B; Ellerth,
524 U.S. at 761. Furthermore, an individual whose job responsibilities
include the authority to recommend tangible job decisions affecting an
employee qualifies as his or her supervisor even if the individual does
not have the final say. Enforcement Guidance, at III.A.1. We therefore
also disagree with the agency's second contention.
When harassment culminates in a tangible employment action, the employer
cannot raise the affirmative defense accorded to it in claims of hostile
work environment harassment which does not culminate in a tangible
employment action. This sort of claim is analyzed like any other case
in which a challenged employment action is alleged to be discriminatory.
Id. at IV.C. If the employer produces evidence of a non-discriminatory
explanation for the tangible employment action, a determination
must be made whether that explanation is a pretext designed to hide a
discriminatory motive. Id.; see also McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973) (describing burden-shifting analytical
framework to apply to claims of disparate treatment in violation of
Title VII).
In the instant case, the agency met its burden of articulating a
legitimate, nondiscriminatory reason for not promoting complainant to the
permanent Assistant Club Manager, NF-03, position. It presented testimony
by M1 that he initially did not support complainant being placed in the
temporary Assistant Club Manager position, for reasons relating to the
financial health of the club, but that S1 went to a higher authority
within the chain of command to try to get complainant promoted. M1 also
provided that he was aware that another club would be closing soon, and
that ACM, who was then the Assistant Club Manager at that other club, was
expected to be transferred over to the Hale Ikena Club as the permanent
Assistant Club Manager. While complainant presented sufficient evidence
to establish by a preponderance that S1 did in fact offer his assistance
in securing complainant a permanent Assistant Club Manager position in
exchange for sexual favors, complainant presented no evidence challenging
M1's testimony as to the reasons behind why she was not actually offered a
promotion, and the record does not otherwise indicate that M1's proffer is
unworthy of credence. Accordingly, we conclude that complainant has not
presented sufficient evidence to rebut the agency's articulation and prove
that its stated reasons for not promoting her to the permanent Assistant
Club Manager position are merely pretext for unlawful discrimination,
and therefore she cannot prevail on her tangible employment action claim.
Turning to complainant's hostile work environment claim, we find that,
as stated above, she has proven by a preponderance of the evidence that
she was subjected to sexual harassment as claimed. She has satisfactorily
established that she was subjected to unwelcome conduct related to her
gender, including sexual advances, requests for favors, and other verbal
and physical conduct of a sexual nature, that the harassment complained
of was based on sex, and that the harassment had the purpose or effect
of unreasonably interfering with her work performance and/or creating
an intimidating, hostile, or offensive work environment.
The remaining question is whether there are sufficient grounds for
imputing liability to the agency for the actions of S1. The agency
will be exposed to vicarious liability for hostile work environment
sexual harassment, where, as here, the harassment was �created by a
supervisor with immediate (or successively higher) authority over the
[complainant].� Enforcement Guidance, at III.A. However, where the
hostile work environment harassment does not culminate in a tangible
employment action,<4> the agency can make out an affirmative defense
by demonstrating: (a) that it exercised reasonable care to prevent and
correct promptly any sexually 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. Id. at
V.A; Ellerth, 524 U.S. at 765.
As described above, the agency implemented prompt and effective corrective
efforts upon becoming aware of the sexual harassment allegations presented
against S1. We need not decide, however, whether the agency's efforts
satisfied the first element of its affirmative defense, as the agency
has failed to satisfy its burden as to establishing the second element of
that defense. The Commission has emphasized that an employee who failed
to complain does not carry a burden of proving the reasonableness of that
decision. Rather, the burden lies with the employer to prove that the
employee's failure to complain was unreasonable. Enforcement Guidance,
at V.D. An employer cannot establish that an employee unreasonably
failed to use its complaint procedure if that employee reasonably feared
retaliation. To assure employees that such a fear is unwarranted, the
employer must clearly communicate and enforce a policy that no employee
will be retaliated against for complaining of harassment. Id. at V.D.1.a.
Complainant testified that she had received prevention of sexual
harassment (POSH) training by the agency at some time in the past, prior
to her coming under the supervision of S1. She also testified that she
received sixteen hours of management training in 1996, and that part
of this training included a minor EEO component, but that the focus of
the training was on how to perform her clerk duties. The EEO Counselor
to whom complainant presented her allegations against S1 testified that
complainant indicated to her that she had received POSH training on two
occasions in the past several years, that attendees of POSH training are
required to sign in upon reporting for the training, and that the agency
maintains records of the names of the attendees and the training attended.
Despite this acknowledgment and the EEO investigator's request for access
to these records, the agency failed to produce any records verifying that
complainant had attended POSH or similar sexual harassment awareness
training at any time during her career with the agency. Nor did the
agency present any documentary or other evidence which established that
complainant had ever been informed that she would not be subjected to
retaliation for presenting claims of sexual harassment. We note that,
consistent with her claim that she feared retaliation from S1 if she
reported his behavior, complainant did not come forward to present
her sexual harassment allegations to the agency until after S1 had
been removed from the workplace as a result of C1's sexual harassment
allegations.<5>
The agency has failed to meet its burden to present sufficient evidence
to prove that complainant was at any time clearly informed that she would
not be retaliated against for complaining of harassment. Furthermore,
the agency has not proven that complainant did not reasonably fear
retaliation from S1, given her testimony on S1's previous statements
regarding his use of firearms, her concerns over her job security, as well
as the physically assaultive nature of some of S1's unlawful behavior.
Accordingly, we find that the agency has not met its burden of proving
that complainant unreasonably failed to avail herself of preventive or
corrective opportunities provided by the agency, or to otherwise avoid
harm, and has therefore failed to establish an affirmative defense to
being subject to vicarious liability for the sexually harassing behavior
of S1.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of
the Commission to AFFIRM the agency's final decision as it pertains to
complainant's tangible employment action claim, REVERSE the agency's
final decision as it pertains to complainant's hostile work environment
claim, and REMAND the matter to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. The agency shall post a notice, as provided below.
2. The agency shall restore any annual or sick leave, and make payment
to her for any leave without pay, complainant used as a result of
the hostile work environment harassment to which she was subjected,
no later than sixty (60) calendar days after the date this decision
becomes final. The complainant shall cooperate in the agency's efforts
to compute the amount of back pay and benefits due, and shall provide
all relevant information requested by the agency. If there is a dispute
regarding the exact amount of back pay and/or benefits, the agency
shall compensate complainant for the undisputed amount within sixty
(60) calendar days of the date the agency determines the amount it
believes to be due. The complainant may petition the Commission for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled �Implementation of
the Commission's Decision.�
3. The issues of compensatory damages, attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue, and shall afford
complainant an opportunity to establish a causal relationship between
the incidents of harassment and any pecuniary or non-pecuniary losses.
Complainant shall cooperate in the agency's efforts to compute the amount
of compensatory damages, and shall provide all relevant information
requested by the agency. Complainant, through counsel, shall also submit
a request for attorney's fees and costs in accordance with the Attorney's
Fees paragraph set forth below. No later than sixty (60) calendar days
after the agency's receipt of the attorney's fees petition, the agency
shall issue a final agency decision addressing the issues of attorney's
fees, costs, and compensatory damages. The agency shall submit a copy
of the final decision to the Compliance Officer, as referenced below;
4. The agency shall provide training in the obligations and duties
imposed by Title VII to all managers, supervisors, and employees at
the Hale Ikena Club facility at Fort Shafter, Hawaii. This training
shall include a minimum of eight (8) hours of remedial training for all
managers and supervisors located at the Hale Ikena Club facility, to
ensure that acts of sexual harassment do not recur, that no retaliatory
acts are taken against any employee who opposes unlawful discrimination,
including sexual harassment, and that persons reporting instances of
alleged sexual harassment are treated in an appropriate manner.
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 (G0900)
The agency is ordered to post at its Hale Ikena Club facility 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, 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
January 9, 2003
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., has occurred at the United States
Department of the Army's Hale Ikena Club facility at Fort Shafter,
Hawaii (facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated Title VII when, from 1993 through
September, 1999, a supervisor subjected an employee to sexual harassment
in the workplace. The agency was ordered to: (1) determine the amount of
pecuniary and non-pecuniary damages suffered by the employee as a result
of the sexual harassment, and to compensate the employee accordingly;
(2) restore any annual leave or sick leave, and pay the employee for
any leave without pay, which the employee used as a result of the
sexual harassment; (3) provide equal employment opportunity training
to all employees and management officials at the facility, including
specialized sexual harassment training for managers and supervisors;
(4) pay reasonable attorney's fees and costs incurred, if applicable;
and (5) post this notice.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 ACM also stated that S1 also made his �little Filipino ass� command
to complainant.
2 ACM provided that she began having lunch with complainant in October,
1999, at which point she and complainant shared information about their
respective harassment experiences at the hands of S1. ACM stated that
complainant told her about the oral sex requests and other sexual comments
by S1, but that she did not mention the two aforementioned allegations of
physical contact between S1 and complainant. ACM, who was also one of
complainant's supervisors, stated that she did not report complainant's
revelations earlier because ACM did not believe that complainant had
reported those incidents to her in an official capacity, but rather had
just been �sharing a story.� ACM further stated that when C1 reported
her allegations to the agency, ACM encouraged complainant to come forward
with her claims.
3 The agency referred to this claim as an allegation of quid pro quo
sexual harassment.
4 We note that the sexually harassing behavior perpetrated by S1
which served as a basis for her tangible employment action claim also
constitutes actionable hostile work environment harassment. Enforcement
Guidance, at IV.B.
5 We note that C1 had not received any POSH or similar training from the
agency, and that she testified that she knew to report her allegations
because of sexual harassment training she had received previously from
other employers.