01995207
08-18-2000
Ann Fauntroy, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Ann Fauntroy v. Department of the Treasury
01995207
August 18, 2000
Ann Fauntroy, )
Complainant, )
)
v. ) Appeal No. 01995207
) Agency No. 97-1335
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1>
On August 7, 1997, complainant filed a formal complaint against the
Department of the Treasury (�Treasury� or �agency�), her employer.
She alleged the agency discriminated against her in violation of Title
VII, in failing to take action to ensure that a male security guard
(�guard�) working in a General Services Administration (GSA) facility
adjacent to her workplace facility cease verbally sexually harassing
her as she walked to her car after completing each day's work.
The agency issued its first dismissal of this complaint on September
9, 1997, finding the complainant had failed to state a claim because
the complaint was not filed with the agency allegedly discriminating
against her - GSA. The decision stated the guard was a GSA employee,
and the incidents occurred while she was en route to her car rather
than within the Treasury facility. The decision found that Treasury
itself had not discriminated against complainant, and thus, she had not
properly filed the complaint with the allegedly discriminatory agency.
Complainant appealed. On appeal, the Commission vacated the agency's
decision and remanded the complaint to Treasury and to GSA for joint
processing.
Upon remand, Treasury on June 15, 1999, again dismissed the complaint
for failure to state a claim. The agency based its dismissal, in part,
upon learning that the guard was a contractor under a GSA contract
rather than a GSA employee, and in part that the guard did not work in
a Treasury facility.
The Commission's regulations describe a federal agency's obligation to
its employees regarding non-employees' acts of sexual as follows:
An employer may also be responsible for the acts of non-employees,
with respect to sexual harassment of employees in the workplace,
where the employer (or its agents or supervisory employees) knows
or should have known of the conduct and fails to take immediate and
appropriate corrective action. In reviewing these cases the Commission
will consider the extent of the employer's control and any other legal
responsibility which the employer may have with respect to the conduct
of such non-employees.
29 C.F.R. � 1604.11(e). The Commission recognized an agency's obligation
to take immediate and appropriate corrective action� regarding sexual
harassment by non-employees in Pope v. Department of the Army, EEOC Appeal
No. 01975488 (April 26, 2000). In Pope, citing EEOC Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999)
the Commission found that for an agency to avoid liability for hostile
environment harassment, it must show that: 1) the conduct complained
of did not occur; 2) the conduct complained of was not unwelcome; 3)
the alleged harassment was not sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment; 4) immediate and appropriate corrective action was taken
as soon as the employer was put on notice; or 5) there is no basis for
imputing liability to the employer under agency principles.
Complainant has alleged a failure to prevent conduct that may have been
sufficiently severe or pervasive to create a hostile work environment
affecting the conditions of her employment. As such, her complaint
states a claim. Accordingly, the agency's final decision dismissing
complainant's complaint for failure to state a claim is REVERSED.
The complaint is hereby REMANDED for further processing in accordance
with the Order below.
ORDER
The agency is ORDERED to resume joint processing of the remanded
claims with the General Services Administration in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108) and the previous decision in EEOC
Appeal No. 01980259 (September 15, 1998). The agency shall acknowledge
to the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. A copy of
the agency's letter of acknowledgment to complainant must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
August 18, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.