Tina Lonnie
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A31700
Hearing Nos. 370-A1-X2419
370-A1-X2531
370-A2-X2003
Agency Nos. FNP-99-089R
FNP-2000-006
FNP-2000-107
DECISION
JURISDICTION
On January 14, 2003, complainant filed an appeal from the agency's December
16, 2002 final order 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).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Laborer, WG-2, in the Buildings Custodial Department, at the agency's
National Park Service in Yosemite National Park. Complainant filed three
EEO complaints alleging discrimination on the bases of race (African-
American), sex (female), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964. The first complaint was
filed on June 10, 1999, alleging discrimination when: (1) her requests for
training opportunities to enhance the development of her career were
denied; (2) she was not selected for a promotion to the position of
Maintenance Worker, WG-4749-05, advertised under vacancy announcement
number YOSE-97-99; and (3) she was subjected to harassment by her co-
workers (CW1 and CW2). In complaint #2, filed October 18, 1999,
complainant alleged that she was discriminated against on the bases of
race, sex, and reprisal when (4) she was not selected for a 120-day detail
in the Building and Grounds Department of Yosemite National Park. On
September 28, 2000, complainant filed her third formal complaint alleging
discrimination on the same bases when: (5) she was not selected for the
position of Laborer, WG-3502-03, advertised under vacancy announcement No.
98-62.
Each complaint was investigated separately. At the conclusion of the
investigations, complainant was provided with a copy of the reports of
investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing on each
of the three complaints. The AJ consolidated the three complaints.
On April 5, 2002, the AJ issued his notice of intent to issue a decision
without a hearing. Complainant's attorney filed a response to the AJ's
notice on April 25, 2002. Complainant's response asserted that she made
out a prima facie case of harassment based on race. Therefore,
complainant's counsel argued, the matter is one where summary judgment is
not appropriate. After a review of the investigative files and
complainant's submissions, the AJ issued a decision without a hearing on
July 1, 2002.
AJ DECISION
The AJ found that there were no material facts in dispute and the evidence
of record failed to establish complainant was discriminated against as
alleged.
Specifically, as to claim (1), the AJ noted that complainant did not
request specific training. Further, the AJ found that the record included
several training opportunities complainant received including training on
the 4X4 Mule, forklift safety and operation, and basic electrical.
Therefore, the AJ determined that complainant was not denied training
opportunities.
In claim (2), the AJ found that the agency provided legitimate,
nondiscriminatory reasons for its actions. In claim (2), complainant
alleged discrimination when she was not selected for the WG-5 Maintenance
Worker position. The AJ noted that S1 chose Selectee1 (white male) because
he had an extensive background in repair and maintenance work while
complainant lacked such experience. S1 then also chose Selectee2 (white
male) for another Maintenance Worker position based on his maintenance
experience. The AJ then turned to complainant to establish that the
agency's reasons were pretext and found that complainant failed to show
that she had the similar job-related experience as Selectee1 and 2.
Therefore, the AJ concluded that complainant had not established that the
agency's reasons were pretext for discrimination.
As to claim (4), the AJ found that the agency provided legitimate,
nondiscriminatory reasons for the detail. Complainant's supervisor (S1)
averred that he had a temporary promotional detail available, and three
equally qualified employees for the detail--complainant and two of her co-
workers (CW3 and CW4, both white males). S1 thought it would be fair to
give all three of them part of the detail by splitting the detail into
three ways, so each employee would get an opportunity to fill two forty-day
temporary details, one in the Building and Grounds Department and the other
in the Campground Maintenance Department. S1 chose names out of a hat to
decide the order of the details. CW3 was the first name out of the hat for
the Building and Grounds detail. CW4 was second and assigned to the
Campground Maintenance detail. Complainant's name was third and she was to
rotate into the Campground Maintenance detail after the first forty-day
detail period. However, the AJ found that at some later point, the Chief
of Maintenance offered complainant the whole 120-day detail and she
declined the offer. Because complainant declined the offer, S1 was told to
take complainant's name out of rotation. Based on the record, the AJ found
that S1 selected complainant for a forty-day detail and she was even
offered the full 120-day detail. Therefore, the AJ concluded that
complainant was not denied the detail as alleged.
As to claim (5), the AJ noted that complainant and two co-workers were
referred on the certificate for the WG-3 Laborer position. The AJ found
that the agency decided not to hire for the WG-3 Laborer position due to
lack of funding. While the management official who made the decision not
to fill the decision was aware of complainant's prior EEO activity
(Complaints 1 and 2 previously described), he denied that, rather than
funding problems, was the reason for his decision. Complainant asserted
that the agency did not fill the position because it did not want
complainant to get the job. Further, complainant claimed that she was
coerced into a sexual relationship with one of her supervisors (S3), who
participated in the selection. She asserted that she was not selected
because she ended the relationship with the S3. The AJ, however, noted
that complainant acknowledged that the relationship was consensual and that
it continued until February 2000, well after the agency decided not to fill
the WG-3 Laborer position in 1998. Accordingly, the AJ determined that
complainant failed to show pretext as to the position at issue in claim
(5).
The AJ also determined that complainant failed to establish her claim of
unlawful harassment. In claim (3), complainant asserted that she was
subjected to discriminatory harassment by several white male coworkers and
that management failed to do anything about it. The AJ found that
complainant did not assert that any of the alleged acts by these coworkers
were directed at her and also did not allege that they made any racially
derogatory remarks about her. Therefore, the AJ concluded that complainant
failed to establish her claim of harassment.
FINAL AGENCY ACTION
The agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged. Complainant filed this appeal without comment. In response to
the appeal, the agency argued that the AJ correctly concluded that there
were no material facts in dispute and that complainant failed to establish
that she was discriminated against as alleged. As such, the agency
requested that the Commission affirm its final action.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an
agency's final action shall be based on a de novo review . . ."); see also
EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed de
novo"). This essentially means that we should look at this case with fresh
eyes. In other words, we are free to accept (if accurate) or reject (if
erroneous) the AJ's, and agency's, factual conclusions and legal analysis -
including on the ultimate fact of whether intentional discrimination
occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A.
(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").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn
in the non-moving party's favor. Id. at 255. An issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could find
in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the
case.
If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate. In the context of
an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v.
Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given (1)
ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the
opportunity to respond to such a statement, and (4) the chance to engage in
discovery before responding, if necessary. According to the Supreme Court,
Rule 56 itself precludes summary judgment "where the [party opposing
summary judgment] has not had the opportunity to discover information that
is essential to his opposition." Anderson, 477 U.S. at 250. In the
hearing context, this means that the administrative judge must enable the
parties to engage in the amount of discovery necessary to properly respond
to any motion for a decision without a hearing. Cf. 29 C.F.R. §
1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a
decision without a hearing).
Upon review, we find that the record was fully developed by thorough
investigations. In particular, we note that the investigators conducted
detailed depositions of complainant, management and other witnesses. We
note that the witnesses appear to essentially agree on the facts involved
in the complaints at hand. Additionally, complainant failed to identify
any material facts in dispute at the hearing or on appeal. Therefore, we
determine that there are no material facts in dispute. Accordingly, we
conclude that summary judgment was appropriate.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under
the three-part analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first
establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v.
Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once
the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason. St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The elements of the prima facie case are determined by the individual
circumstances of each case and the bases of discrimination alleged; but
regardless of the specific action at issue, complainant may establish a
prima facie case by demonstrating: 1) that she is a member of a protected
group; 2) that she is similarly situated to employees outside of her
protected group; 3) and that she was treated differently than those
employees. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864,
865 (6th Cir. 1975). In a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4)
a nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Claims (1), (2), and (5)
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated by
discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v.
Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the AJ correctly determined that complainant did
not show that she was discriminated against as alleged in claims (1). As
to claims (2) and (5), the AJ properly found that the agency articulated
legitimate, nondiscriminatory reasons and that complainant failed to
establish that those reasons were pretext.
Claim (4)
In claim (4), complainant is an African-American female who filed an EEO
complaint against S1. CW3 and CW4 (both white males who have not
participated in EEO activity) were selected by S1 for the details at issue.
Complainant was not provided with the detail. Therefore, we find that
complainant has established a prima facie case of discrimination based on
her race, sex and her prior EEO activity.
The burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. S1 averred that he selected
complainant, CW3 and CW4 for two details. He asserted that he placed the
names in a hat and that CW3 and CW4 were selected first out of the hat to
serve on the forty-day details. Complainant's name was third and she was
to rotate into the Campground Maintenance detail after the first forty-day
detail period. However, the AJ found that at some later point, the Chief
of Maintenance offered complainant the whole 120-day detail and she
declined the offer. Because complainant declined the offer, S1 was told to
take complainant's name out of rotation and she never served in either
details to the Building and Grounds Department or to the Campground
Maintenance Department.
We note that, in concluding no discrimination occurred, the AJ credited as
legitimate the agency's rationale for taking complainant out of the
rotation for the promotional detail-that complainant was offered the full
120-day detail and that she rejected it. The AJ, however, appears not to
have recognized that this "offer" was made during settlement discussions
between complainant and agency regarding a prior EEO complaint. See Report
of Counseling, Complaint FNP-00-006. In exchange for withdrawing an EEO
complaint, the agency offered to provide complainant with the whole 120-day
detail. Complainant refused the offer in order to pursue her EEO
complaint. The evidence is clear that she was then removed from her turn
at the rotational details, that she had already been granted, because of
her refusal to accept the settlement offer. EEOC Management Directive (MD)-
110, Chapter 12, is clear that settlements of EEO disputes must be
voluntary in nature, with the complainant free to choose not to settle and
instead pursue processing of his or her EEO complaint. Moreover,
"[s]ettlement negotiations, including any statements or proposals, are to
be treated as confidential and privileged to facilitate a candid
interchange to settle disputes informally." Harris v. Department of the
Navy, EEOC Request No. 05941002 (March 23, 1995). For these reasons, we
find that the agency's decision to pull complainant out of the rotation for
the promotional details was unlawful retaliation for complainant's decision
to exercise her protected right in the EEO complaint process to pursue her
previously filed EEO complaints rather than settling with the agency.
Harassment
It is well-settled that harassment based on an individual's sex and race,
or in retaliation for engaging is protected EEO activity, is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment under those bases, the complainant must
show that: (1) she belongs to the statutorily protected classes and/or
engaged in prior EEO activity; (2) she was subjected to unwelcome conduct
related to her membership in those classes and her prior EEO activity; (3)
the harassment complained of was based on sex, race and/or prior EEO
activity; (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 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 (March 8, 1994).
Claim (3)
In claim (3), complainant alleged that she was subjected to a hostile work
environment when she was harassed on the basis of her race, sex and her
participation in prior EEO activity. Complainant noted that she was one of
the few African Americans working at the park and the only one in her
division. The record also establishes that due to the geographic isolation
of the park, many employees lived in close proximity to their work and each
other, and encountered each other both at work and when not working with
some frequency. Complainant stated that most other African American
employees who have tried "to work here and live here and make this their
community.have all left.I'm the only one that has stuck it out."
Deposition of June 11, 2001, pg.12.
Complainant asserted in August 1997 she was placed in a permanent position
at the park, where previously she had held a temporary job. She said that
almost immediately one of her coworkers (CW1, a white male) told her that
"the only reason you got a permanent job. is because [you are] black" and
then spat at her feet. Id., pg. 17. She said CW1 later repeatedly made
similar statements and continued spitting at her feet on a number of
different occasions for a period of "months and months," which she found
very offensive. Id., pg. 19. Complainant said she finally reported
CW1's conduct to her supervisor, S1, who sent her to a "mediation meeting"
with CW1, held with the agency's EEO counselor. After the mediation
session, complainant stated that CW1 stopped making the offensive
statements, but gave her a lot of "dirty looks," as well as complaining
frequently to management about her work.
Complainant's supervisor, S1, confirmed that she was the only African
American employee he supervised. He also said that he was aware that
complainant and CW1 had a long-standing hostile relationship, but
characterized it as a personality conflict. He indicated that he decided
to set up the mediation session for the two of them with the facility's EEO
counselor. He noted that during the lunch break of the mediation session,
an anonymous report was received that complainant had been seen using an
illegal substance while driving her park-issued scooter. He said the park
police investigated immediately and determined that the allegation was
untrue. He indicated that this incident "kind of ruined" the mediation.
Complainant's second-level supervisor, S2, confirmed that he was also aware
of a bad relationship between complainant and CW1 and counseled them to put
their differences aside, but he denied knowing there was a racial element
to their disputes. However, the EEO Counselor's report indicated that S2
told the counselor that CW1 was told by management that "his behavior was
not appropriate and would not be tolerated."
With regard to CW2's conduct, complainant asserted that he said that if she
got promoted before he did he was going to make "a big stink about it."
Id., pg. 24. Complainant also said that one day in front of the shop, CW2
(white, male) said he was going to rape the wife of the second-level
supervisor, S2. Complainant reported this statement to management and an
investigation of the incident was started. Complainant was detailed out of
the park to Santa Barbara for about a month during the investigation. When
she returned, she learned that S2 had been permanently transferred to
another park, but she was returned to work with CW2. She noted that in
addition to encountering him at work, CW2 also lived about five houses away
from her. Complainant asserted she was fearful for her own safety working
with CW2 and had been told by some friends that they heard him say that he
hoped she was dead. Complainant said she told management she was afraid of
CW2, but they did nothing about it. Complainant asserted that S2 (who was
white) was protected by the agency from CW2, while she was not.
S1 confirmed that complainant was briefly detailed to Santa Barbara because
of concerns that CW2 would retaliate against her for reporting his alleged
threat against S2's wife. He said CW2 was suspended for 30 days following
the investigation of this incident and he was aware that complainant was
afraid of CW2, and said he tried to keep them separated and to counsel CW2
frequently. S2 confirmed that he and his family transferred to another
park shortly after this incident, in part to get away from CW2. He also
confirmed complainant's assertion that CW2 was very angry at her, and
described him as very "imposing." He said that park law enforcement
continued to monitor CW2's actions on a regular basis.
Upon review, we find that the AJ correctly concluded that complainant
failed to show that the alleged incidents of harassment were due to her sex
and/or prior EEO activity. However, based on a review of the record, the
Commission disagrees with the AJ's conclusion that complainant did not
assert that any of the alleged acts by her coworkers were directed at her
and also did not allege that they made any racially derogatory remarks
about her. We find that the evidence of record showed that CW1's actions
were based, at least in part, on complainant's race. CW1 regularly
commented, for a period of "months and months," that the reason complainant
was hired by the agency was her race and spat in complainant's direction.
We note that complainant was the only person of her race employed at the
facility. There is also evidence that he acted in a generally hostile
manner towards her over a long period of time. Management was fully aware
of the hostile relationship between them, and sent them to a mediation
session with an EEO counselor to learn to "get along." These efforts,
however, were established to be unsuccessful.
The agency is liable for harassment by a co-worker if it knew of the
harassment and failed to take appropriate corrective action. Policy
Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050
(March 19, 1990); Owens v. Department of Transportation, EEOC Request No.
05940824 (September 5, 1996). Here, complainant informed her supervisors
of the harassment. Complainant stated and management officials confirmed
that she raised the issue of CW1 behavior. However, despite management
counseling of CW1 about his behavior, the hostility continued, a fact of
which the record indicates management was aware. Therefore, upon review, we
find that despite knowledge of the harassment, management did not take
prompt and appropriate corrective action. As such, we find that the agency
cannot make out an affirmative defense to complainant's claim of a
discriminatory hostile work environment. See Burlington Industries, Inc.,
v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998); EEOC Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.002 (June 18, 1999) at 12. Accordingly, we determine that
complainant has shown that she was subjected to a hostile work environment
based on her race.
With regard to the actions of CW2, we find that while complainant was
undoubtedly subjected to hostility by his actions, and reasonably feared
CW2, there is insufficient evidence to establish that CW2's actions were
motivated by racial discrimination rather than his anger at complainant
because she reported his threats directed at S2's wife. However, the
record does establish that agency management treated S2, who was white, and
complainant, who was African American, differently with regard to CW2. The
record establishes that S2 was permanently transferred to another park, at
least in part, to protect him from potential danger from CW2. Complainant,
on the other hand, was briefly sent to another facility, but then returned
to Yosemite where she continued to have to work with CW2. Complainant
asserted she was fearful for her own safety working with CW2 and had been
told by some friends that they heard him say that hoped she was dead.
Complainant said she told management she was afraid of CW2, but they did
nothing about it. We find that complainant has established a prima facie
case of disparate treatment by agency management based on race in this
matter, which the agency has failed to rebut with an articulation of a
legitimate, nondiscriminatory reason for the different treatment.
Therefore, we further find complainant has established an inferential case
of race discrimination with regard to agency management's lack of
appropriate response to her legitimate fears about having to continue to
work with CW2.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Commission to affirm in part and reverse in part the agency's final order.
The agency is ordered to take the corrective action listed below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. The agency shall provide complainant with forty-day detail opportunities
to both the Building and Grounds and the Campground Maintenance
Departments and provide her with back pay for any differences in salary
she would have incurred had she originally received these details.
2. The agency is directed to conduct training for the agency employees who
have been found to have created a hostile work environment as well as for
the management officials who failed to exercise reasonable care to
prevent the hostile work environment and who discriminated against
complainant. The agency shall address these employees' responsibilities
with respect to eliminating harassment in the workplace.
3. The agency shall consider taking disciplinary action against the
employees identified as being responsible for the discrimination and
unlawful harassment perpetrated against complainant. The agency shall
report its decision. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
4. The agency shall ensure that CW1 and CW2 are separated from complainant.
5. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
her claim for compensatory damages within forty-five (45) calendar days
of the date complainant receives the agency's notice. The agency shall
complete the investigation on the claim for compensatory damages within
forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. § 1614.110.
6. 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.
7. The agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its facility in Yosemite National Park,
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of your
complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the agency
issues its final decision on your complaint. 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 (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
November 22, 2005
__________________
Date
Tag Archives: hostile work environment
Lonnie v. Department of Interior
Shofield v. Department of the Army
Genevieve S. Schofield,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120131039
Agency No. ARHOOD12OCT04045
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 14, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the MEB Clinic, Darnall Army Medical Center, Fort Hood, Texas.
On October 4, 2012, Complainant (female) contacted an Agency EEO counselor and alleged that she had been sexually harassed the previous day by the Lead Health System Specialist ("Employee F") (male). Complainant alleged that she went into his office to offer him some candy from her desk. The door to the office remained opened. She said that Employee F stood up, took the candy, hugged her and then deliberately grabbed her right breast with his hand. Complainant said she immediately slapped his back and said, "what the hell, not cool, not Ok." She alleged that he replied, "What? You put it there." Complainant later explained that she was particularly affected by this incident because she had been the victim of a rape as a teenager.
After she sought EEO counseling, the EEO office informed the Commander of the incident, who assigned the Provost Marshal to deal with it. Complainant was instructed by the Provost Marshal to report the incident to the military police. She did as instructed and later provided a statement to a criminal investigator.
On October 5, 2012, Complainant said she was approached by her supervisor and informed that Employee F was being moved to another work area and had been given a "no contact" order. Complainant asserts that the supervisor never asked her if she was alright, but instead let her know that she did not appreciate having to hear about the incident from "legal" instead of from Complainant. Complainant further asserts that Employee F was not, in fact, immediately moved and continued to be in the her vicinity until she complained about his presence in the clinic to the Major.1
The Agency also claims that Complainant was referred to the Fort Hood Sexual Harassment Assault Response Program (SHARP) officer.
On October 30, 2012, when the matter was not resolved in counseling, Complainant filed a formal EEO complaint concerning the incident alleging sex discrimination in violation of Title VII.
On November 14, 2012, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that, "[s]exual assault is not under the purview of EEO [complaint process]."
The instant appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that where, as is the case here, a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22.
Applying this case law, we conclude that the Agency erred in concluding that Complainant failed to state a viable claim of sexual harassment that requires further investigation and processing in the 29 C.F.R. Part 1614 EEO complaint process. Regardless of whether Complainant used the term "sexual harassment" or "sexual assault," the alleged action, if proven true, was sufficiently severe to state a viable claim of sexual harassment.
In its brief submitted in response to this appeal, the Agency argues both that the criminal investigation of the incident was inconclusive and that management took prompt and effective action to deal with the situation. In making these arguments, the Agency is addressing the merits of the complaint without a proper investigation as required by the Part 1614 regulations. These arguments are irrelevant to the procedural issue of whether Complainant has presented a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
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 (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. 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 (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 (M0610)
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 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 (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 (Z0610)
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
May 23, 2013
__________________
Date
1 In its brief in response to the Complainant's appeal, the Agency concedes that, despite the no-contact order, there were several situations during this period where Complainant and Employee F were in the same room, but asserts there was no contact between them.
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2
0120131039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131039
Filed under Harassment, Hostile Work Environment, Sexual Harassment
Footnote – Hostile Environment Background Evidence
Although this claim is not independently actionable because it is untimely, it nonetheless can be considered as background evidence in determining whether a hostile work environment existed. Casteel v. Department of the Army, EEOC Appeal No. 01A50425 (February 14, 2006); Campbell v. Department of Homeland Security, EEOC Appeal No. 01A52160 (July 15, 2005).
Filed under Claim, Footnote, Harassment, Hostile Work Environment
Footnote – Hostile Work Environment
The phrase “hostile work environment” is a finding that harassment occurred, and that the harassment was severe or pervasive enough to alter a condition or privilege of employment. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002); Cobb v. Department of Treasury, EEOC Appeal No. 01960215 at *7 (Mar. 13, 1997). The phrase is not an issue or incident but the identification of the result of harassment.
Filed under Footnote, Harassment, Hostile Work Environment
Employment Complaints Are Us 