0120111477
05-15-2012
Amy Piccola, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Amy Piccola,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120111477
Hearing No. 510-2010-00012X
Agency No. 200822091FAA03, 200822530FAA03
DECISION
On January 14, 2011, Complainant filed an appeal from the Agency's December 8, 2010, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Controller at the Agency's Sanford Tower facility in Sanford, Florida.
On August 19, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior EEO activity, when:
1. beginning in the spring of 2005 and continuing with the most recent act occurring on April 21, 2008, Complainant was subjected to acts of sexual harassment that consisted of unwelcome comments, looks and touching of a sexual nature which occurred on a consistent and frequent basis that created a hostile work environment;
2. on or about March 2008, she was verbally reprimanded;
3. on or about April 2008, after reporting claims of unlawful harassment, Agency officials advised her that threats were made against her and she felt that her life was in danger;
4. on or about January 5, 2009, she was issued a letter of reprimand; and
5. on or about January 12, 2009, she was interviewed by Agency officials in an unlocked room during which time several co-workers entered the room. Complainant alleges that this choice of room was designed to harass Complainant and chill her willingness to participate in EEO activity.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on April 27, 28, and 29 2010, and issued a decision on November 17, 2010.1
During the investigation and hearing, the evidence indicated that Complainant worked for the Agency as an Air Traffic Controller (ATC) and came to the Agency's facility in Sanford, Florida in August 2005.
Prior to the time Complainant began her employment at the Agency's facility in Florida, the record indicates that Complainant's alleged harasser, a co-worker and Union president, (CW), was involuntarily reassigned to the Sanford facility from the Orlando Executive Airport. An EEO complaint had been filed by a female employee against CW which contributed to the Agency's decision to involuntarily reassign him. The record further indicates that the Agency had previously handled a second EEO complaint against CW filed by an Agency temporary supervisor. She alleged that CW engaged in unwelcome, inappropriate touching when he rubbed her shoulders without her consent and made her feel uncomfortable by his comments. Ultimately, in March 2001, the two day suspension finally issued to CW as a result of the complaint filed by the temporary supervisor, was reduced to a letter of reprimand.
In February 2006, CW told Complainant the details of his involuntary reassignment to the Agency's Sanford facility. CW told Complainant that women controllers had filed charges against him and allegedly described the women as "lying cunts." Complainant indicates that CW bragged that he had "gotten away with it" and got a promotion out of the deal. In March 2006, Complainant alleges that CW referred to Complainant's breasts commenting that "the girls are looking especially nice today." During April and May 2006, in response to Complainant's statement that she needed to be on a diet, CW would whisper "your ass is perfect," "very squeezable," and told Complainant she didn't "need to change a thing." In June 2006, CW directed grunting noises toward Complainant then whispered to her "looking at you makes my tongue hard." Complainant further alleges that in July 2006, when she bent over to retrieve a manual, CW whispered in her ear, "oh you're your ass looks so nice." Complainant alleges that when she was alone with CW, he rubbed her shoulders and neck. CW would immediately stop if he sensed another person was near.
In February 2007, Complainant indicates that CW commented that Complainant always looked tired at work. On one day in particular during an elevator ride with CW, he asked Complainant about her husband's health. CW told Complainant that his wife had been experiencing back problems and as a result was not satisfying him sexually. CW allegedly asked Complainant if her husband was able to "get it up," and whether he was able to "get the job done." CW made sexually charged comments regarding Complainant's sex life with her husband on two other occasions. In October 2007, while at a union function, local union president CW asked Complainant who also served as the local union treasurer to lick food off his leg. Thereafter, the record indicates that Complainant resigned from her position as treasurer of the local union.
In February 2008, Complainant wore a new hairstyle to work. Complainant alleges that CW grabbed her hair and said, "at least it's still grab-able from the back." In March 2008, CW allegedly discussed with Complainant the details of his extramarital affair with a woman who worked at the airport. During this conversation, Complainant alleges that CW shared with her detailed accounts of his sexual encounters. Complainant admits that she actively engaged in this conversation.
During the same month, the record indicates that Complainant, her supervisor and CW took an airport tour to inspect the construction of the airport's new runway. Complainant sat in the back of the vehicle with CW where she alleges that CW began moving her dress up her thigh while whispering that she should not have worn the dress to work. Complainant indicates that she told CW to stop at which time Complainant alleges that CW poked his tongue into his cheek in a pulsing manner indicating oral sex. According to the record, two days after this incident, Complainant's supervisor who sat in the front seat of the vehicle during this airport tour, admonished Complainant for whispering and not acting professionally during the trip.
The record further indicates that on April 24, 2008, a female employee (EE), who worked with Complainant,2 approached Complainant and told her about an incident involving CW in which he allegedly slapped EE's buttocks in an elevator. The record indicates that on April 25, 2008, EE informed her supervisor about the incident on the elevator. EE's supervisor immediately reported the incident to his supervisor who also supervised Complainant. Subsequently, On April 25, 2008, Complainant also informed her supervisor about CW's conduct, and gave her own statement regarding the harassment as identified above perpetrated against her by CW. Complainant's supervisor also obtained statements from EE and her supervisor and reported all allegations, including those reported by EE, to the Agency's Accountability Board3. The Agency immediately removed CW from the tower where he worked with Complainant and EE. The Agency placed CW on administrative leave and then transferred him to an offsite work location. According to the record, Agency management conducted an inquiry into the allegations made by Complainant and EE. Between April 25, 2008 and July 10, 2008, the record indicates that the Agency obtained statements from CW and other identified employees and managers, including CW's supervisor.
During the course of its investigation, the Agency found that Complainant did not report any of the prior incidents of harassment by CW to anyone prior to April 2008. She admitted to referencing her breasts and buttocks in conversations with coworkers. CW admitted to making sexually inappropriate comments as well as massaging Complainant's neck. Prior to the end of the Agency's investigation in July 2008, a complaint from the Agency's employee hotline, expressed concerns that CW had created a hostile work environment by threatening Complainant. According to the record, the Agency then initiated an investigation into possible retaliatory threats by CW. Both Complainant's supervisor and CW's supervisor, expressed concerns about CW's capacity for revenge through his union influence. Both supervisors knew of CW's hobby of gun collection and competitive shooting. Complainant acknowledged however, that direct threats by CW had not been made.
The Agency's internal investigation substantiated Complainant's charges of sexual harassment. According to the Agency, Complainant's supervisor reviewed the Agency's table of penalties, and conferred with the Agency's Human Resources and Labor Relations Departments to determine the appropriate discipline to be issued to CW. The Agency's discipline policy obligated the Agency to consider "the employee's past disciplinary record" and "the mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment or bad faith, malice, or provocation on the part of others involved in the matter," among other factors. Pursuant to the Agency's contract with the Union, and Agency personnel policy, prior discipline may be retained in discipline files, in the custody of Human Resources for five years. Complainant's supervisor wanted to terminate CW's employment, but Agency policy precluded such an option. According to the record, the Agency determined that concerning CW's personnel record, there was no documentation of "any discipline that could be applicable to use as prior discipline for this particular employee." Using the table of remedies available, the Agency initially proposed a 15-day suspension, identifying the following two charges; 1) inappropriate conduct and 2) refusing a direct order, stemming from the incident involving EE's supervisor and CW. The Agency considered Complainant's admission that she made some inappropriate comments as mitigating factors, holding her complicit for the inappropriate environment. The second charge, refusing a direct order could not be substantiated. Ultimately, 12 days were deducted from the suspension. The Agency determined that a 3-day suspension would be sufficient discipline by which to rectify CW's inappropriate behavior.
The record further indicates that the Agency disciplined Complainant in January 2009, by issuing a letter of reprimand for her inappropriate conduct. By the time the Agency issued discipline to the parties, Complainant had secured a position working at another Agency facility. Complainant applied for and received a reassignment as an ATC to Orlando International airport, a higher level, complex facility.
Complainant further alleges that the Agency attempted to chill her involvement in EEO activity when she was interviewed in an unlocked room where other ATCs entered and exited. Complainant alleges that the Agency's choice of room was designed to harass and intimidate Complainant and sought to chill her willingness to participate in EEO activity. Ultimately, Complainant accepted a position with the Agency's Office of the Administrator in Washington, DC on or about February 2009.
The record further indicates that during the years 2003 through 2006, supervisory staff did not have a regular presence in the tower where the Agency's ATC duties were performed and where Complainant worked with CW. Before 2007, the majority of ATCs were unsupervised. The Agency nationally implemented the "white book" procedures, which in part, required supervisors to regularly oversee controllers while working in the tower. After 2007, supervisors contended that they spent four to six of their work days in the tower supervising their subordinate employees.
Based on this evidence, the AJ concluded that the record substantiated Complainant's allegations that she had been subjected to inappropriate comments and touching by CW on an infrequent basis for a span of approximately six years. The AJ also found that the actions of CW were clearly offensive and could be characterized as severe. The AJ also found that CW enjoyed intimidating and harassing many employees, both male and female. The AJ went on, however, to find that the Agency was able to produce evidence that it should not be held liable for CW's actions. First, the Agency produced evidence that it had a sexual harassment policy in place during the entire period and all its employees received annual training on sexual harassment. The Agency policy provided for several alternative methods for reporting harassment. The AJ concluded that the evidence shows that Complainant and her coworker EE waited years before finally reporting CW's comments and actions to management in 2008. Once they reported his actions, the AJ found that management immediately removed CW from the workplace and expeditiously investigated the allegations. Once it was determined that he had engaged in inappropriate conduct, he was disciplined.
With regard to Complainant's allegation of reprisal when she was verbally reprimanded and issued a letter of reprimand for also making inappropriate comments to coworkers, threats were reported, and when she was interviewed in 2009, the AJ concluded that management articulated legitimate reasons for these actions, and there was no evidence that it was intended to chill Complainant's use of the EEO process.
The Agency issued its final order adopting the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Sexual Harassment
It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a prima facie case of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982).
An agency is liable for harassment by a co-worker or other non-supervisor when it "knows or should have known of the conduct, unless the agency can show that it took immediate and appropriate corrective action." See 29 C.F.R. � 1604.11(d). Whether the agency's action is appropriate depends upon "the severity and persistence of the harassment and the effectiveness of any initial remedial steps." Taylor v. Dep't. of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the agency's conduct in response to harassment depends upon "the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Owens v. Dep't of Transportation, EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment. When an employer becomes aware of alleged harassment, the employer has the duty to investigate such charges promptly and thoroughly. See Rodriguez v. Dep't. of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996).
Drawing all inferences in the light most favorable to Complainant, we assume that Complainant's account of the alleged harassment is accurate. As such, we find that Complainant has alleged that she was subjected to unwelcome actions because of her sex, including unwelcome comments, looks, and touching of a sexual nature occurring on a consistent and frequent basis. We further find that these alleged actions were sufficiently severe to create a hostile work environment. See Skinkis v. Dep't of Justice, EEOC Appeal No. 01A10699 (Sept. 25, 1992) (supervisor staring at an employee's legs for several minutes, unwelcome touching, and making comments about her figure were sufficient to constitute a hostile work environment).
Because we determine that Complainant established that she was subjected to sexual harassment, our next inquiry is whether the Agency is liable for CW's actions. As already noted, in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).
In this case, the Agency produced evidence to establish that it had a sexual harassment policy in place and that all employees, including Complainant received annual training on sexual harassment. The record in this matter established that Complainant waited years before finally reporting the conduct of CW to Agency officials. To justify her delay, Complainant indicates that she feared CW and his capacity to retaliate. However, record evidence indicates and Complainant admits that CW never made any threatening statements or gestures toward her. In fact, the AJ found that Complainant's claim that she feared CW directly contradicted her hearing testimony. Specifically, the AJ pointed to the fact that Complainant served as Union treasurer during the time she asserted that CW was harassing her and she voluntarily attended a Union dinner in October 2007 where she sat right next to CW. The AJ also found that Complainant voluntarily engaged in conversation with CW about sex, claiming that she did so in order to "fit in."
In addition, it is undisputed that Complainant did not report her allegations to the Agency for years. The record indicates that Complainant did not report any of CW's harassing behavior until April 25, 2008 although she indicates that it began as early as 2005. Complainant finally reported the harassing conduct in April 2008, at which time the Agency immediately took action by removing CW from the tower, placing CW on administrative leave and transferring him to an offsite work location. The Agency conducted an investigation of CW and found that he had engaged in inappropriate conduct and disciplined him.
As discussed above the Agency had in place a harassment policy which provided alternate methods for reporting allegations of sexual harassment. Complainant could have telephoned in her allegations directly to the Agency's Accountability Board, or she could have availed herself of the employee hotline well before April 2008. We concur with the AJ's determination that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities to avoid harm. Once Complainant reported the allegations of sexual harassment, the Agency immediately took action ultimately disciplining CW for his behavior. While Complainant questions the severity of the discipline issued to CW, the Agency established that the issued discipline conformed to Agency policy and Union agreement when CW was suspended for three days.
Reprisal
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), 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. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Complainant contends that Agency management reprimanded her behavior and issued discipline to her in the form of a letter of reprimand for engaging in conversations of a sexual nature which contributed to the work environment. The AJ found that Complainant established a prima facie case of reprisal discrimination as alleged. However, substantial evidence of record support the AJ's further finding that the Agency articulated legitimate, non-discriminatory reasons for its actions. The evidence established that Complainant was complicit in the creation of the inappropriate work environment of which she complained. She admitted to making inappropriate comments in conversations with other co-workers, including CW. It was therefore, incumbent upon the Agency to correct Complainant's inappropriate behavior by the issuance of minor discipline. Complainant fails to provide evidence that the Agency's articulated reasons were a pretext for discrimination.
We find that Complainant failed to establish pretext and that the AJ's findings that no discrimination occurred with regard to each claim are supported by substantial evidence. Furthermore, even without the AJ's credibility determinations we find that Complainant failed to meet her burden of proof to prove by a preponderance of the evidence that the Agency's actions were motivated by discriminatory animus toward Complainant's protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2012
__________________
Date
1 We note here that the instant complaint was consolidated for hearing with the complaint of Complainant's co-worker. The consolidated case is addressed in a separate Commission decision. See Bauer v. Department of Transportation, EEOC Appeal No. 0120111476 currently on appeal before the Commission's Office of Federal Operations.
2 The employee referred to here, is the same employee whose complaint was consolidated with the instant matter for a hearing before an EEOC AJ. See Bauer v. Department of Transportation, EEOC Appeal No. 012111476.
3 The Accountability Board is comprised of Agency upper level managers tasked with ensuring that Agency managers conduct themselves in accordance with the Agency's anti-harassment policy. The Board is charged with investigating circumstances surrounding sexual harassment and hostile work environment claims.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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