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: sexual harassment
Lonnie v. Department of Interior
Zorrero v. Homeland Security
Elsa Zorrero v. Department of Homeland Security
01A21401
09-04-03
.
Elsa Zorrero,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security <1>,
Agency.
Appeal No. 01A21401
Agency No. I-94-6413
DECISION
Complainant initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the
complainant's appeal from the agency's final order in the above-entitled
matter pursuant to 29 C.F.R. § 1614.405.
The issue presented in this appeal is whether complainant proved, by a
preponderance of the evidence, that she was discriminated against because
of her race (Hispanic)<2>, national origin (Hispanic), sex (female) and
reprisal for engaging in prior EEO activity when: (1) management failed
to take action against a co-worker who harassed her since March 1991;
and (2) she was told that she would not be selected for the position of
Immigration Inspector because of the situation with the co-worker.
Complainant filed a formal complaint, on March 28, 1994, raising the
above issues. The agency did not began its investigation until March
9, 1998. Upon completion of the investigation, the agency notified
complainant of her right to a hearing before an EEOC Administrative Judge
(AJ). Complainant requested a final decision from the agency without
a hearing. On October 25, 2001, the agency issued a decision finding
no discrimination.
The record indicates that complainant began working for the Immigration
and Naturalization Service in June 1988. From June 1988 until September
20, 1990, complainant was an Immigration Inspector at the San Ysidro,
California Port of Entry (San Ysidro). While at San Ysidro, complainant
worked with B-1. Complainant testified that she and B-1 dated “on and
off” from around June 1988 until September 1990, and that he began to
harass her when their relationship ended. Complainant stated that B-1
would telephone her early in the morning at work and at home, visited
her, wrote her threatening letters, and sent her unwanted flowers.
In September 1990, complainant left San Ysidro and became an Immigration
Information Officer at the San Diego District Office. Although part
of the reason that she left was to avoid B-1, complainant acknowledged
that she did not inform management of B-1's harassment while she worked
at San Ysidro.
On March 12, 1991, complainant stated that B-1 came to her house seeking
to convince her to end her relationship with another coworker, B-2.
According to complainant, she refused and B-1 slapped her and threatened
her children. Complainant stated that he continued to harass her.
On July 30, 1991, she indicated that, after allowing B-1 to visit her
home, he raped her. Complainant reported the incident to the police, but
did not press charges. Complainant stated that B-1 continued to harass
her, i.e., sending her unwanted letters, and telephoning her at home and
at work. She also learned that B-1 began circulating a nude photograph
of her at work. Complainant stated that C-1, an employee at San Ysidro,
told her that she looked nice without any clothes. Upon questioning C-1,
complainant learned that B-1 was showing a photograph of her that was
taken during their relationship.
Complainant applied for an Immigration Inspector position at San Ysidro
around January 1992. According to complainant, around the middle of
March 1992, she was told by A-2, the Assistant District Director of
the San Diego District Office, that she was not going to be selected.
A-2 learned about complainant's non-selection from A-1, the San Ysidro
Port Director and the selecting official.<3> According to A-2, A-1 told
him that he had learned from B-1 that complainant had been harassing
him after they separated. A-1 felt that it would not make sense for
the parties to work at the same place.
After complainant was not selected for the Immigration Inspector
position at San Ysidro, she spoke to A-2 about her non-selection and
the harassment by B-1. A-2 maintained that complainant told him that
B-1 placed numerous unwanted phone calls to her at home. He did not
remember complainant telling him that B-1 had phoned her at work, sent
her unwanted correspondence or was circulating photographs of her.
He acknowledged, however, that a management official, whose name he
did not recall, did inform him that photographs were being circulated.
A-2 arranged for A-1 and complainant to meet.
At the meeting, complainant reported B-1's harassment to A-1. She
provided him with a 5-page memorandum, dated March 26, 1992. Complainant
stated that, after reading the memorandum, A-1 “sarcastically” remarked,
“What is this, fatal attraction.”<4> Complainant indicated that:
I told [A-1] that I wanted to make him aware of what was happening and
that I wanted it to cease. I also told him that I wanted my job back
in San Ysidro. [A-1] said he would bring me back at the San Ysidro [Port
of Entry] in April of 1992, and if there were any further problems with
[B-1], I should report them to EEO.
Exhibit F2, pgs 4 - 5.
Complainant maintained that A-1 retaliated against her by not selecting
her for the Immigration Inspector position because she reported B-1's
harassment. According to the record, this was complainant's first
EEO activity. Complainant also gave copies of her memorandum to A-2,
and her immediate supervisor, D-1. In April 1992, complainant accepted
a position as a Center Adjudication Officer at the California Service
Center. Other than A-2's assertion that it was a better position,
there is no indication why complainant was not placed in the position
that A-1 referenced.
D-1 testified that she was not aware of telephone calls or unwanted
correspondence from B-1 to complainant. According to D-1, complainant
told her on a number of occasions that B-1 was harassing her and that
they had restraining orders against each other. D-1 indicated that she
told her supervisor about complainant's allegations. He opined that
complainant should put her allegations in writing. D-1 stated that
complainant never submitted a written complaint to her, and that she
left for the California Service Center shortly thereafter.
In September 1993, A-1 asked complainant for another copy of her 5-page
memorandum. A-1, according to complainant, told her that he had shredded
the copy that she provided him in March 1992. A-1 told her that he
“intended to discipline B-1 for reasons unrelated to [her] complaint.”
In October 1993, complainant and B-2 both submitted a signed,
joint memorandum complaining of further acts of harassment by B-1.
The memorandum indicated that, among other things,<5> “[B-1] continues
to show compromising pictures of [complainant] throughout the Ports of
Entry.” According to B-2, in November 1993, he met with A-1 concerning
the memorandum. A-1 told B-2 that the memorandum angered him and that
he did not intend to forward it to the Regional Office. B-2 described
A-1 as being “agitated and visibly upset during our meeting.” Although
A-1 indicated that the problem would be resolved, B-2 testified that the
problems continued. Finally, B-2 stated that in 1995, he and complainant
learned that B-1 was still circulating photographs of complainant.
E-1, Branch Chief at the California Service Center, stated that
complainant told her in September 1993, that she was being harassed
by B-1. Although E-1 indicated that “nearly all of the incidents
the complainant described occurred more than a year prior to her
reporting them to me,” she acknowledged that complainant told her
that B-1 was continuing to circulate nude pictures of complainant.
E-1 advised complainant to ask B-1 in writing to stop contacting her
and circulating the photographs, and to contact the county District
Attorney. E-1 indicated that she also spoke to her first and second
level supervisors and contacted A-1. According to E-1, A-1 stated that
he had just learned about the nude photograph and suggested that E-1
contact the local Port Director. E-1 told A-1 that he should pursue
the matter because none of the witnesses were within her jurisdiction.
A-3 became the San Diego District Director in March 1995. In September
1995, he met with complainant. Complainant gave A-3 a memorandum
regarding B-1's harassment. A-3 promised to look into the allegations.
If he found that the allegations were true, A-3 stated that he would
insure that the harassment would cease. A-3 spoke to B-1, but he denied
complainant's accusations. According to A-3, he informed B-1 that such
behavior would not be tolerated. A-3's Deputy also spoke to several
Inspectors, but he was unable to substantiate complainant's claims.
As a result, B-1 was not disciplined.
B-1 maintained that complainant never told him that she did not want to
correspond with him after their breakup. He claimed that complainant
initiated several contacts and suggested that they reconcile. According
to B-1, complainant sent him a nude photograph of herself on September
20, 1993. B-1 claims that he sent the Deputy Area Port Director a
memorandum about the photograph, but received no response. The record
does not indicate why B-1 did not provide a copy of this memorandum
to the investigating officer. After the September 20, 1993 letter,
B-1 maintained that he stopped trying to communicate with complainant.
He denied slapping complainant, threatening her children, or raping her.
B-1 stated that he did not learn about the rape allegation until 1993,
when he tried to renew his concealed weapon permit. B-1 denied ever
circulating a nude photograph of complainant. He maintained that he gave
the photograph that complainant allegedly sent him to his Union Steward
when management tried to discipline him in 1993. According to B-1,
management reduced his grade from GS-11 to GS-9, but that the discipline
was overturned during arbitration. B-1 did not indicate to what the
disciplinary action pertained.
C-1, an Immigration Inspector, testified that he heard rumors that B-1 had
nude photographs of complainant in his locker. Contrary to complainant's
testimony, however, C-1 maintained that he never saw the photographs.
C-2, an Immigration Inspector, testified that before she left San Ysidro
in December 1991, B-1 showed her a “naked picture” of complainant.
She could not remember the exact date, but indicated that he took it out
of his briefcase. C-2 stated that she was aware that other Immigration
Inspectors had also been shown the photographs as well. C-2 maintained
that she told complainant about the photograph, prior to December 1991.
Complainant claimed, however, that C-2 told her in 1995.
C-3, who served as B-1's supervisor at one point, stated that he learned
that B-1 had a nude photograph of complainant when B-1 gave a photograph
to management around 1992. C-3 said that when B-1 surrendered the
photograph, he claimed that complainant was continuing to send him
photographs and suggested that she was harassing him.
C-4, an Immigration Inspector, testified that B-1 showed him a
photograph of a nude woman around 1991. C-4 was not sure if the woman
was complainant.
C-5, a Senior Immigration Inspector, testified that he heard rumors after
complainant left San Ysidro that B-1 was circulating nude photographs
of complainant, but that he never saw them.
C-6, an Immigration Inspector, testified that, prior to May 1992, he
heard rumors of nude photographs of complainant, but that he was not
aware of who was circulating them. C-6 stated that B-1 told him on
several occasions that complainant was harassing him.
A-4, a Supervisory Immigration Inspector, stated that at some point,
between 1991 and 1993, rumors circulated at San Ysidro that B-1 had
several nude photographs of complainant. A-4 indicated that he never saw
the photographs and did not report the rumors to upper management because,
it was his understanding that, B-1's circulation of the photographs
had already been brought to the attention of upper level management.
Finally, A-4 indicated that it appeared that most of the Inspector level
employees knew about the photographs.
A-5, a Supervisory Immigration Inspector, stated that he once
overheard employees discussing a nude photograph of a former employee.
A-5 maintained that when he questioned the employees they denied seeing
the photographs or knowing who was in them. According to A-5, this
incident occurred approximately two and a half years before his April
1998 affidavit. A-5 did not report the incident to upper management
because he “had no solid evidence of [the photograph's] existence or
who might have been responsible for circulating them.”
The record contains an August 10, 1992 letter from B-1 to complainant.
B-1 indicates, in pertinent part, that “I still have some pictures of you.
If you want them first [start] telling the [truth], then contact me.”
ANALYSIS AND FINDINGS
At the outset, we find that complainant did not establish a prima facie
case of discrimination based on her national origin. Complainant did
not present evidence that would support an inference that the agency's
actions resulted from discrimination based on her national origin.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Issue (1)
It is well settled that harassment based on an individual's sex is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
In order to establish a claim of harassment based on sex, the complainant
must show that: (1) she belongs to the statutorily protected classes;
(2) she was subjected to unwelcome conduct related to her membership
in the class; (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 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).
Upon review of the record, we find that the preponderance of the evidence
indicates that, complainant has clearly established that nude photographs
of her were circulated at San Ysidro from 1991 through 1995, by B-1.
With respect to elements (1) through (3) of a claim of harassment,
she has shown that she is a member of a statutorily protected class,
the conduct at issue was not welcome, and the harassment complained of
was based upon her sex. As to element (4), we find that the long-term
circulation of nude photographs in the work place had the purpose or
effect of unreasonably interfering with complainant's work performance
and/or created an intimidating, hostile, or offensive work environment.
Finally, as to element (5), we find that complainant has met her burden
in showing that there is a basis for imputing liability to the agency.
In a 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. Equal Employment
Opportunity Commission Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999).
The agency argued that there was no basis for imputing B-1's conduct to
management because it was unaware of the conduct before March 26, 1992,
when complainant's memorandum was given to A-1 and other officials.
Also, the agency argued that there was no evidence that management's
response, after March 26, 1992, was so unreasonable that a finding of
discrimination could be sustained. We disagree. Upon being informed
of B-1's actions on March 26, 1992, management failed to respond
reasonably or effectively. According to complainant, A-1 shredded her
5-page memorandum that discussed the fact that B-1 was distributing nude
photographs of her in the workplace. Although he had read complainant's
memorandum, A-1, in September 1993, told E-1 that he had just learned of
the nude photographs when she spoke to him about the matter. Instead of
confronting B-1, he suggested that E-1 contact the local Port Director.
E-1 informed A-1 that he should pursue the matter because none of the
witnesses were within her jurisdiction. There is no evidence that A-1
ever took any action in response to E-1's inquiry.<6> Various management
officials, including A-1, A-2<7>, A-4 and A-5, were aware that, from 1991
through 1995, B-1 was circulating nude photographs of complainant, but
no effective action was ever taken to stop B-1. We note in this regard,
the testimony of B-2 that he thought management failed to respond due
to “apathy,” a desire to “protect” B-1, and “the hope that the problem
would cure itself.”
Accordingly, the Commission concludes that complainant has met her burden
of establishing sex-based harassment.
Issue (2)
Complainant maintained that A-1 retaliated against her by not selecting
her for the Immigration Inspector position because she reported
B-1's harassment. In a reprisal claim, the 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. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), and Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000).
The agency maintained that A-1 had already made his decision not to select
complainant prior to his receipt of her March 26, 1992 memorandum, which
was her first EEO activity. Therefore, the agency concluded that she
failed to state a prima facie case of reprisal discrimination. We agree
with the agency's conclusion. We also note that because complainant
had admittedly not reported B-1's conduct at any previous time, she
cannot establish that she had opposed the discriminatory harassment
with respect to her reprisal claim. Consequently, we do not find that
complainant established that she was discriminated against on the basis
of reprisal with respect to her non-selection.
We also do not find that complainant established discrimination on the
bases of her national origin and sex with regard to her non-selection.
A-1 provided a legitimate non-discriminatory reason for not selecting
complainant for the Immigration Inspector position at San Ysidro, i.e.,
his concern that complainant and B-1 should not work at the same location.
In this regard, we note that B-1 had informed A-1 that complainant had
been harassing him. Complainant has not established that this reason
was a pretext.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we REVERSE
the agency's final decision.
ORDER
The agency is ordered to take the following remedial action.
(1) The agency shall provide EEO training to B-1, A-2, A-4 and A-5
in order to ensure that acts of harassment do not recur, and that
persons reporting incidents of alleged harassment are treated in an
appropriate manner. The Commission does not consider training to be a
disciplinary action.
(2) The agency shall consider taking disciplinary action against B-1.
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.
(3) The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages incurred as a
result of the agency's discriminatory actions in this matter. The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of a claim for compensatory damages. Complainant shall
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. Within forty-five (45) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to compensatory damages, together
with appropriate appeal rights.
(4) 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 San Ysidro, California 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 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
___09-04-03_______________
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 this 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 San Ysidro, California Port of Entry supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The San Ysidro, California Port of Entry has been ordered to remedy an
employee affected by the Commission's finding that she was subjected
to a hostile work environment based upon her sex. As a remedy for the
discrimination, the San Ysidro, California Port of Entry was ordered
to provide training to various management officials and to consider
discipline for the employee found to have harassed the affected employee.
The San Ysidro, California Port of Entry was also ordered to determine
if the affected employee is entitled to compensatory damages and to
ensure that the harassment will not occur again. The San Ysidro,
California Port of Entry will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The San Ysidro, California Port of Entry 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
1The complaint herein was originally filed against the Department of
Justice, Immigration and Naturalization Service. The Immigration and
Naturalization Service is now a component of the Department of Homeland
Security, Bureau of Citizenship and Immigration Services.
2The Commission recognizes the term “Hispanic” to be an indication of
national origin, not of race.
3A-2 testified that he was probably complainant's fourth or fifth level
supervisor, and A-1's first level supervisor.
4The record indicates that A-1 had retired by the time the agency had
begun its investigation of complainant's claims. The investigating
officer indicated that the agency was unable to provide him with an
address for A-1.
5B-2 maintained that he was also being harassed by B-1 because of his
relationship with complainant.
6Unlike the agency, we will not speculate that the disciplinary action
that was brought by A-1 against B-1 in October 1993 was related to his
harassment of complainant. First, we note that A-1 told complainant
that it was unrelated. Next, the agency did not provide any evidence
regarding this matter. We find it reasonable to assume that if B-1 had
been disciplined for his conduct towards complainant then the agency
would have provided evidence to that effect.
7We are not satisfied with A-2's testimony that he “effectively” delegated
the responsibility for the investigation of complainant's claims to A-1,
and that he does not recall A-1 ever providing him with any feedback as
to the resolution of the matter.
Filed under Hostile Work Environment, Sexual Harassment
JOSEPH ONCALE, PETITIONER v. SUNDOWNER OFFSHORE SERVICES, INCORPORATED, ET 118 S. Ct. 998 (1998)
Oncale Summary
By Alan Meyer Gerlach of Broad and Cassel, Attorneys at Law
Taken From:http://corporate.findlaw.com/human-resources/supreme-court-rules-on-same-sex-harassment.html
In Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), the Supreme Court handed down a unanimous decision holding that “same sex” sexual harassment is actionable under Title VII of the Civil Rights Act of 1964. In that case, which arose in Louisiana, a male employee brought a sexual harassment suit against his employer and other male employees alleging thatwwhile working on an oil platform in the Gulf of Mexicowhe had been physically assaulted in a sexual manner and threatened with rape by male co-workers. The federal district court and intermediate appellate courts ruled in favor of the defendants, believing that a male employee has no cause of action under Title VII for sexual harassment by male co-workers.Writing for the Court, Justice Scalia held that the standard for recovery in a same-sex case is the same as in other sexual harassment cases. However, Justice Scalia cautioned that the behavior at issue must be assessed in light of its context. “Common sense, and an appropriate sensitivity to the social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”The Court’s decision emphasized that Title VII reaches “discrimination in employment – because of – sex.” It viewed the Oncale case as the latest of many in which courts have held that the fact the alleged victim and the alleged discriminator are the same sex or race does not insulate the employer from liability. The Court sensibly limited liability to cases involving “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” It is heartening that the Court re-emphasized that Title VII is an employment discrimination statute, not a remedy for every unfortunate act occurring in the workplace. To be actionable, the harassment must not only be “severely hostile or abusive” conduct must also be “because of” the victim’s sex, meaning gender. The Court left for another day the difficult issue of the bisexual supervisor who sexually harasses both men and women. Oncale merely held that Title VII recognizes claims of same-sex harassment.Interestingly, the Oncale decision was foreshadowed by an Eleventh Circuit decision arising from a case in which a Broad and Cassel attorney successfully represented the alleged individual harasser. The alleged harasser was ultimately dismissed from the suit because, the federal district judge held, neither Title VII nor the Florida Civil Rights Act allows cases to be brought against individual supervisors or managers. (The plaintiff later dropped the individual defendant from the appeal.) The judge also determined that allowing a Title VII suit where a heterosexual male allegedly harassed by a homosexual male supervisor amounted to an action based on the employee’s sexual preference, a characteristic that is not protected by Title VII, and so entered judgment for the employer. On appeal, the Eleventh Circuit disagreed with this aspect of the lower court’s analysis and held that the plaintiff could proceed against the employer because same-sex harassment cases are actionable under Title VII. Fredette v. BVP Management Associates, 112 F. 3d 1503 (11th Cir. 1997).If the Oncale and Fredette cases are not enough to persuade employers to take same-sex harassment claims as seriously as male-female harassment cases, consider this: in May, a federal court jury in Ocala, not a part of the state known for large verdicts, awarded a female plaintiff more than a million dollars in total damages (not including attorney’s fees and costs) against the defendant employer for claims arising from her sexual harassment by another female, a supervisor for Belk-Lindsay Department Stores. – See more at: http://corporate.findlaw.com/human-resources/supreme-court-rules-on-same-sex-harassment.html#sthash.VExtDFG8.dpufSyllabus
Actual Case Taken From: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=96-568
Syllabus
v.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 96-568.
Argued December 3, 1997 –
Decided March 4, 1998
Petitioner Oncale filed a complaint against his employer, respondent Sundowner Offshore Services, Inc., claiming that sexual harassment directed against him by respondent coworkers in their workplace constituted “discriminat[ion] . . . because of . . . sex” prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e-2(a)(1). Relying on Fifth Circuit precedent, the District Court held that Oncale, a male, had no Title VII cause of action for harassment by male coworkers. The Fifth Circuit affirmed.
Held: Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Title VII’s prohibition of discrimination “because of . . . sex” protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 682 , and in the related context of racial discrimination in the workplace this Court has rejected any conclusive presumption that an employer will not discriminate against members of his own race, Castaneda v. Partida , 430 U.S. 482, 499 . There is no justification in Title VII’s language or the Court’s precedents for a categorical rule barring a claim of discrimination “because of . . . sex” merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Recognizing liability for same-sex harassment will not transform Title VII into a general civility code for the American workplace, since Title VII is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations; since the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same, and the opposite, sex; and since the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances. Pp. 2-7.
83 F. 3d 118, reversed and remanded.
SCALIA , J., delivered the opinion for a unanimous Court. THOMAS , J., filed a concurring opinion.
——————————————————————————–
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
U.S. Supreme Court
No. 96-568
JOSEPH ONCALE, PETITIONER v. SUNDOWNER OFFSHORE SERVICES, INCORPORATED, ET
AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[March 4, 1998]
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether workplace harassment can violate Title VII’s prohibition against “discriminat[ion] . . . because of . . . sex,” 42 U.S.C. � 2000e2(a)(1), when the harasser and the harassed employee are of the same sex.
I
The District Court having granted summary judgment for respondent, we must assume the facts to be as alleged by petitioner Joseph Oncale. The precise details are irrelevant to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally. In late October 1991, Oncale was working for respondent Sundowner Offshore Services on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several occasions, Oncale was forcibly subjected to sex related, humiliating actions against him by Lyons, Pippen and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assulted Oncale in a sexual manner, and Lyons threatened him with rape.
Oncale’s complaints to supervisory personnel produced no remedial action; in fact, the company’s Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen “picked [on] him all the time too,” and called him a name suggesting homosexuality. Id., at 77. Oncale eventually quit-asking that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.” Id., at 79. When asked at his deposition why he left Sundowner, Oncale stated “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.” Id., at 71.
Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. Relying on the Fifth Circuit’s decision in Garcia v. Elf Atochem North America , 28 F. 3d 446, 451-452 (CA5 1994), the district court held that “Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers.” App. 106. On appeal, a panel of the Fifth Circuit concluded that Garcia was binding Circuit precedent, and affirmed. 83 F. 3d 118 (1996). We granted certiorari. 520 U. S. ___ (1997).
II
Title VII of the Civil Rights Act of 1964 provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, as amended, 42 U.S.C. � 2000e-2(a)(1). We have held that this not only covers “terms” and “condi tions” in the narrow contractual sense, but “evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 64 (1986) (citations and internal quotation marks omitted). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted).
Title VII’s prohibition of discrimination “because of . . . sex” protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 682 (1983), and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.” Castaneda v. Partida , 430 U.S. 482, 499 (1977). See also id. , at 515-516 n. 6 (Powell, J., joined by Burger, C. J., and REHNQUIST , J., dissenting). In Johnson v. Transportation Agency, Santa Clara Cty. , 480 U.S. 616 (1987), a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. Although we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. See id., at 624-625. If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of . . . sex” merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Courts have had little trouble with that principle in cases like Johnson , where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a “hostile environment” sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e.g., Goluszek v. H. P. Smith , 697 F. Supp. 1452 (ND Ill. 1988). Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors , 72 F. 3d 1191 (CA4 1996), with Wrightson v. Pizza Hut of America , 99 F. 3d 138 (CA4 1996). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser’s sex, sexual orientation, or motivations. See Doe v. Belleville , 119 F. 3d 563 (CA7 1997).
We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for oppositesex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ” discriminat[ion] . . . because of . . . sex.” We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Harris, supra , at 25 (GINSBURG , J., concurring).
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging samesex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ” discrimina[tion] . . . because of . . . sex.”
And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in Meritor and Harris , the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.” Harris , 510 U.S., at 21 , citing Meritor , 477 U. S. at 67. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as male-on-male horseplay or intersexual flirtation-for discriminatory “conditions of employment.”
We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” Harris, supra, at 23. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relation ships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.
III
Because we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.——————————————————————————–
U.S. Supreme Court
No. 96-568
JOSEPH ONCALE, PETITIONER v. SUNDOWNER OFFSHORE SERVICES, INCORPORATED, ET
AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[March 4, 1998]
JUSTICE THOMAS , concurring.
I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII’s statutory requirement that there be discrimination “because of . . . sex.”
Filed under Harassment, Hostile Work Environment
The EEOC Digest – Federal EEO Law in Bite Size Pieces
The DIGEST Of Equal Employment Opportunity Law Volume XXV, No. 2EEOC
I like the Federal EEO Digest because it summarizes the EEOC case law on basis. Below was all that was covered on that issue. I really like the article on the failure to state a claim and why it gets reversed by the EEOC. The little nut shell summary of these concepts is much more my speed, because it gets right to the heart of the issue, right to what is going on The link below will take you.
Selected EEOC Decisions on: Attorney’s Fees, Compensatory Damages, Dismissals, Findings on the Merits (Under the ADEA, Under Rehabilitation Act, Under Multiple Bases, Retaliation, Remedies, Sanctions, Settlement Agreements, Stating a Claim, Summary Judgment, Timeliness, Office of Federal Operation
Failure to State a Claim: An Overview of the Law and Three Issues of Concern
By Joseph M. Kirchgessner
Introduction
The key lessons that may be taken from this article to avoid a reversal from the Commission are threefold. First, all allegations in a claim should be closely examined to avoid fragmentation. In addition, to state a claim of reprisal, a Complainant needs only to show that a reasonable employee would find the action to be materially adverse and be dissuaded from making or supporting a charge of discrimination- an ultimate employment action is not required. Finally, the merits of a complaint should not be considered when dismissing the claim on procedural grounds. Following these guidelines will ensure that more claims are adjudicated in line with recent Commission decisions.
So this was an article about all of the failure to state a claim that the EEOC rejected and why. Some of them seem pretty obvious like, this one:
In Complainant v. Dep’t of Commerce,31 Complainant filed a formal complaint of discrimination on the bases of sexual harassment when, after having sexual relations with a coworker aboard a ship in which she spent a month at a time living with her coworkers, she was subjected to hazing and rumors about her and the coworker due to the coworker providing details to others about their encounter. When she contacted the EEO counselor, she alleged sexual harassment and sexual assault; emotional and physical abuse; and that she was sexually bullied. The Agency dismissed the complaint for failure to state a claim, reasoning that many of the events raised occurred off of the ship and during non-work hours, and that Complainant did not inform management about the alleged sexual harassment until the coworker rejected her invitation to a concert. The Commission found that the claim was improperly dismissed. The Commission reasoned that the Agency addressed the merits of the complaint without a proper investigation. The Agency’s argument that Complainant cannot prove sexual harassment because she engaged in voluntary sexual relations and only filed a complaint after the coworker denied her further advances goes to the merits of the complaint, and the Commission found this was irrelevant to the procedural issue of whether the stated a justiciable claim under Title VII. Therefore, the Agency decision was reversed.
Yeah, what were they thinking…and anyway the merits of the case are always tricky when you are dealing with harassment, it should not even been dismissed even if the agency had the ability to dismiss on the merits! I mean if agencies had the ability to say, hey complainant, you haven’t stated a prima facie case, you are dismissed -THIS WAS NOT THAT CASE!
Filed under Reprisal, Uncategorized
Employment Complaints Are Us 