0120070512
12-11-2009
Terrie M. Moultry, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Terrie M. Moultry,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070512
Agency No. 200H-0533-2005102946
DECISION
On November 1, 2006, complainant filed an appeal from the agency's October
4, 2006 final decision (FAD) concerning her equal employment opportunity
(EEO) complaint 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Certified Nurse Assistant at the agency's Hudson Valley Health Care
System in Castle Point, New York. On August 31, 2005, complainant filed
a formal EEO complaint alleging that she was subjected to a hostile work
environment on the basis of sex when:
1. on May 1, 2005, a co-worker (CW1) exposed her buttocks to complainant;
2. on May 16, 2005, CW1 exposed her breasts to complainant;
3. on July 3, 2005, CW1 sent complainant an offensive e-mail; and
4. on July 29, 2005, a picture on complainant's locker was scribbled
upon.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
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).
The agency initially dismissed the May 1, 2005 portion of complainant's
claim for failure to timely contact an EEO Counselor. The FAD reveals,
however, that the agency reinstated complainant's entire harassment
claim because complainant timely contacted an EEO counselor with regard
to the May 16, 2005 incident.
The FAD found the following facts: On May 1, 2005, complainant worked
the evening shift. Complainant was walking down the hallway around 6:30
p.m. when CW1 called to complainant and said, "Look." Complainant turned
to look at CW1. CW1 turned her back to complainant and pulled down her
pants and underwear, exposing her buttocks to complainant. Complainant
was upset and asked CW1, "What are you doing?" CW1 laughed, pulled up
her pants and walked away. On May 16, 2005, complainant passed by a room
where CW1 and another co-worker was attending to a patient. CW1 again
called to complainant and said, "Look." CW1 pulled up her shirt and
exposed her breasts to complainant. She then put her thumbs in her pants
as if to pull down her pants. Complainant walked away while CW1 laughed.
On July 3, 2005, CW1 copied complainant on a non-work-related e-mail.
Another co-worker (CW2) sent complainant other non-work-related e-mails
involving the subject of "breaking up" on July 15, 2005. On July 29,
2005, when complainant returned to work, she discovered that someone
had scribbled on complainant's picture on her locker.
The agency found that these incidents occurred as complainant alleged.
The agency further determined that complainant was subjected to a hostile
work environment. Specifically, the agency determined that CW1 exposed
her buttocks and breasts to complainant as alleged. Even though there
were only two incidents where CW1 exposed herself, the agency found
that the incidents were sufficiently severe to create a hostile work
environment. The agency noted that the record supported complainant's
contentions that other employees were laughing and gossiping about CW1's
actions in front of complainant, which humiliated and embarrassed her.
The agency concluded that "complainant believed herself to be the subject
of harassment" with regard to the incidents involving the e-mails and
the defacement of complainant's picture.
Although the agency determined that complainant established that she was
subjected to a hostile work environment, the agency found that it took
sufficient action to avoid liability. As a result, the agency concluded
that complainant failed to prove that she was entitled to additional
relief.
CONTENTIONS ON APPEAL
On appeal, complainant's principal argument is that the agency failed
to terminate CW1 for her actions and failed to prohibit CW1 from making
additional comments. Complainant also argues that the agency failed
to take appropriate corrective action. Additionally, complainant
argues that the agency made errors in the processing of her complaint
including, witness-tampering and failure to obtain statements from
retired witnesses.
In reply, the agency contends that it took prompt remedial action and
should not be held liable.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999).
As a preliminary matter, after reviewing the record we find that the
agency conducted an appropriate investigation. We further find that
complainant has failed to put forth evidence to substantiate her
allegation of witness-tampering.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleges that she was subjected to a hostile work environment
and harassment. To establish a claim of hostile environment, complainant
must show that: (1) he belongs to a statutorily protected class; (2) she
was subjected to unwelcome conduct related to her sex, 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. See McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing . 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 (March 8, 1994).
In this case, the agency found that complainant established that she had
been subjected to sexual harassment with regard to the incidents of CW1
exposing her buttocks and breasts to complainant. The agency equivocated
somewhat with regard to the non-work-related e-mails and the defacement
of complainant's locker picture, but found that complainant "believed
herself to be the subject of harassment" with regard to these matters.
Accordingly, we take complainant's claims to be established, and turn
to the question of whether the agency should be held liable for the
harassment.
In the case of co-worker harassment, an agency is responsible for acts
of harassment in the workplace where the agency (or its agents) knew
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action. 29 C.F.R. �1604.11(d);
Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, No. 915.002 (June 18, 1999) (Enforcement Guidance).
What is appropriate remedial action will necessarily depend on the
particular facts of the case, such as the severity and persistence of
the harassment and the effectiveness of any initial remedial steps.
See Taylor v. Dept. Of Air Force, EEOC Request No. 05920194 (July
8, 1992). However, when an employer receives a complaint or otherwise
learns of alleged sexual harassment in the workplace, the employer should
investigate promptly and thoroughly. Policy Guidance on Current Issues of
Sexual Harassment, N-915-050 (March 19, 1990). The employer should take
immediate and appropriate corrective action by doing whatever is necessary
to end the harassment, make the victim whole by restoring lost employment
benefits or opportunities, and prevent the misconduct from recurring.
Id. Disciplinary action against the offending supervisor or employee,
ranging from reprimand to discharge, may be necessary. Generally,
the corrective action should reflect the severity of the conduct. Id.
The record reveals that complainant reported the May 16, 2005 incident
to the Charge Nurse (CN) and the Evening Supervisor the same evening that
it occurred. The CN informed the Nurse Manager (NM) of the incident one
day later on May 17, 2005, however, the NM denies being told about the
incident until May 31, 2005, when she read an e-mail dated May 29, 2005,
from complainant detailing the incident. The Associate Chief Nurse (ACN)
was informed of the incident on May 31, 2005. On May 31, 2005, the NM
met with complainant and asked her for clarification of the dates and
names of any witnesses. The NM requested reports of contact from other
witnesses, and received their responses on June 1, 2005. On June 7,
2005, the NM met with CW1 and her union representative to inform her
of complainant's allegations and to request a report of contact from
CW1 of both incidents 1 and 2. CW1 provided a report of contact on
that same date. On June 14, 2005, the NM held two separate meetings
with complainant and CW1 and the EEO Manager. On that same date, CW1's
tour of duty was changed such that she would not work at the same time
as complainant. On July 27, 2005, CW1 was given a written counseling,
dated July 18, 2005 for inappropriate behavior when she exposed her
buttocks and breast to the complainant. The delay in counseling was
due to CW1's absence because of a family emergency. CW1 was ordered to
complete the online sexual harassment training, to complete the training
on "Treating Veterans with C.A.R.E," and to meet with her Nurse Manager
on a monthly basis for the next three months.
Complainant argues that CW1 should have been terminated. However, we
find that the agency took prompt, effective action when CW1 was given
counseling, had her tour of duty changed so she would not work at the same
time as complainant, was required to undergo harassment training, and
was ordered to meet with her supervisor for the following three months.
Although there was a delay in notifying the NM, once she was informed she
immediately investigated the incident. Further, complainant and CW1 have
not worked together since the incident on May 16, 2005. Accordingly,
we find the agency proffered sufficient evidence to show that it should
not be held liable for further relief regarding the actions of CW1.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to show by a preponderance of the evidence that she
was subjected to a hostile work environment based on her sex.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 11, 2009
Date
1 The record reflects that complainant also alleged that she was
discriminated against on the basis of her race when, on June 29, 2005,
she was not referred for the position of Pharmacy Technician, GS-661-6,
announced under Vacancy Announcement No. 05-16. We note, however,
that complainant withdrew this claim in an e-mail to the agency dated
October 17, 2005. Accordingly, we do not address this claim on appeal.
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0120070512
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070512