0120121405
06-27-2012
Belinda G. Browning, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Mine Safety & Health Administration), Agency.
Belinda G. Browning,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Mine Safety & Health Administration),
Agency.
Appeal No. 0120121405
Agency No. CRC 12-03-006
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 20, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Upon review, the Commission finds that Complainant's complaint was improperly dismissed for failure to state a claim. The Commission REVERSES the Agency's decision.
BACKGROUND
Complainant worked as a MSHA Educational Policy and Development (EPD) Training Specialist at the Agency's National Mine Health and Safety Academy facility in Beckley, West Virginia. Her duties involved event coordination and frequent travel. She worked for the Agency for nine years. She reported to the EPD Management Operations Officer (Manager), who was stationed in Arlington, Virginia, but the Manager's oversight duties placed him in contact with Complainant on a regular basis.
According to Complainant, initially the Manager mentored Complainant and he and Complainant were friends. Over time, Complainant said the Manager's overtures grew bolder, and he regularly greeted her with hugs and kisses and brushed up against Complainant's body. Complainant maintains that his conduct was unwanted, but she did not complain because she feared retaliation.
On October 5, 2011, Complainant filed a formal complaint alleging that the Manager subjected Complainant to ongoing sexual harassment and a hostile work environment on the basis of sex (female) after Complainant refused the Manager's advances. Complainant alleges a dozen incidents during the period of 2005 to 2011, including:
1. in 2007, the Manager tried to kiss Complainant on the lips and called her on her personal cell phone multiple times a day until she stopped using her cell phone;
2. in March of 2009, the Manager was sitting by the front desk at the hotel, waiting for Complainant to arrive for a training event. He gave her a hug and a kiss on the cheek and told her that he was "taking good care of [Complainant];"
3. during the fall of 2009, the Manager pressured Complainant to request a temporary duty assignment to shadow the Manager for two to three weeks in Arlington;
4. in June of 2010, the EPD Manager insisted that Complainant come to his hotel room during the 2010 National Homes Conference and Complainant refused;
5. on October 11, 2010, the Manager insisted that Complainant come with him so that he could give "her special cookies" and he again hugged and kissed Complainant on her cheek;
6. in October 2010, the Manager stopped Complainant from getting the promotion for which she applied and Complainant maintains that she did not get the promotional opportunity because she continued to refuse the Manager's advances;
7. on April 22, 2011, the Manager told Complainant that, although he had not talked with Complainant since October, he was "still keeping track of her" which upset and unnerved Complainant; and
8. thereafter, Complainant requested to withdraw from all projects that caused her to have any direct contact with the Manager.
In her complaint, she claims a loss of employment opportunities and benefits and appears to be raising retaliatory constructive discharge. Complainant seeks an apology from the named official, reassignment away from any assignments with the Manager and relief for her pain and suffering.
The Agency reframed Complainant's allegations as follows:
1. the Manager attempted to kiss Complainant when they went out to dinner in 2007;
2. for several years, the Manager greeted Complainant with hugs and kisses to the cheek;
3. the Manager brought Complainant "special" cookies; and
4. the Manager once asked Complainant to pick up the cookies at the Manager's hotel room.
The Agency dismissed the complaint because it concluded that "Complainant's claims are without merit." The Agency stated that the Manager's attempting to kiss Complainant and greet her with a hug was not sufficiently severe or troubling to create a hostile work environment. The Agency says that these are "ordinary tribulations of the work place." The Agency reasoned that "despite the fact that Complainant states that she found the conduct offensive, viewed objectively, it would not rise to the level of severe or pervasive so as to render her working environmental hostile."
The instant appeal followed. On appeal, Complainant states that the Agency erred in dismissing her claims because she was aggrieved and the incidents were sufficiently severe to warrant an investigation.
The Agency states that the incidents are not sexual or frequent and that Complainant's "claims are without merit".
ANALYSIS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by the Agency because of race, color, religion, sex, national origin, age, disabling condition or reprisal. 29 C.F.R. �� 1614.103 and 1614.106(a). In addition, the Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment to which there is a remedy. Diaz v. Dep't. of the Air Force, EEOC Request no. 05931049 (April 21, 1994).
We conclude that a fact finder could conclude that the Manager's conduct was severe enough to create a hostile work environment for an employee in Complainant's position. Complainant was a long-term employee who alleges she found herself the target of repeated hugs and kisses to the point that she altered her work routines and assignments to avoid contact with him.
The Agency maintains that because the incidents occurred at infrequent intervals and were not sexual in nature, "Complainant's claims are without merit and do not rise to the level of an actionable hostile work environment." However, this rationale goes to the merits of the claims. Stoyanov v. Dept. of Navy, EEOC Appeal Nos. 01A45354 and 01A50853 (reversing dismissal when Agency reached the merits in its decision).
We find that Complainant stated a claim of discrimination and that a full investigation of her claims is warranted. Consequently, we find that the Agency's dismissal of the matter was not appropriate.
CONCLUSION
We REVERSE the Agency's final decision and REMAND the matter for further processing n accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2012
__________________
Date
2
0120121405
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121405