0120080335
06-22-2012
Betty Sue H. Evans, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Betty Sue H. Evans,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal Nos. 0120080335
Hearing No. 461-2006-00014X
Agency No. P-2005-0208
DECISION
On October 18, 2007, Complainant initiated this appeal from the Agency's November 15, 2007, final order concerning an equal employment opportunity (EEO) complaint she filed alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).1 For the following reasons, the Agency's final order is MODIFIED.
ISSUES PRESENTED
The issues presented herein are (1) whether the Agency awarded Complainant appropriate relief upon finding itself liable to her for sexual harassment, and (2) whether the Agency ordered action sufficient to prevent further discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Assistant Health Services Administrator, a capacity in which she served from December 2, 2001, until the date of her termination on October 28, 2007, at the Agency's Federal Correctional Center in Oakdale, Louisiana (FCC Oakdale). From December 20, 2004, through January 28, 2005, she was sexually harassed by the facility's Executive Assistant and Acting Associate Warden (male), who served as her immediate supervisor (S1) during this time.
On January 28, 2005, the Warden (male), the head of the facility and Complainant's second-line supervisor (S2), was notified of S1's behavior by the Regional Director (female) (S3) who learned of the behavior from Complainant and another employee (Co-worker), who had also been sexually harassed by S1. This knowledge prompted S2 to request that Complainant and Co-worker put their complaints in writing. By memorandum dated February 3, 2005, Complainant complied with S2's request. The next day, February 4, 2005, she contacted an EEO Counselor about the matter and then went on sick leave until February 21, 2005.
On May 9, 2005, Complainant filed an EEO complaint in which she alleged discrimination on the bases of sex, race, and age when she was subjected to a sexually hostile work environment. The Agency accepted the complaint for investigation, and at the conclusion thereof, 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; however, because of events related to Hurricane Katrina, the Agency was never made aware of her request. Therefore, Complainant's complaint proceeded on a dual track, that is, through the EEOC hearings process and the Agency's EEO adjudication system.
On September 14, 2007, the Agency's EEO Office issued a decision in which it found the Agency was liable to Complainant for subjecting her to a sexually hostile work environment on the basis of sex, but not race and age. Subsequently, the EEO Office learned that Complainant's complaint was pending before an AJ, and on September 25, 2007, issued a memorandum in which it withdrew its initial decision for lack of jurisdiction.
The AJ assigned to the case issued his decision on October 2, 2007. The decision, issued without a hearing, found that Complainant had been sexually harassed but that the Agency was not liable because Complainant failed to report it, and that once the Agency learned of it, it took immediate and appropriate corrective action in the form of removing S1 from her chain-of-command. The AJ noted that S1 had not subjected anyone to harassment since January 28, 2005, the day S2 first learned of S1's conduct. On November 15, 2007, the Agency released its final order in which it rejected the AJ's decision. The Agency found that it was indeed liable to Complainant for sexual harassment. The Agency reasoned that though it took immediate and corrective action after learning of the harassment, Complainant did not unreasonably fail to complain and therefore the Agency could not escape liability under the standards enunciated by the U.S. Supreme Court in Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
The Agency awarded Complainant compensatory damages and attorney's fees and costs. The Agency further ordered the Bureau of Prisons (BOP) to post a notice of its finding of discrimination for 60 days at FCC Oakdale facility, and to take corrective action to prevent further discrimination or harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant focuses on the AJ's finding of no discrimination, which conflicted with the Agency's initial decision finding in her favor. Those arguments are now irrelevant, because the Agency's final order essentially reinstated its original decision finding discrimination. Therefore, we turn our focus to the Agency's contentions.
The Agency argues that the Commission should dismiss Complainant's appeal as moot because there is no controversy, live or otherwise, to adjudicate in this appeal. The Agency further argues that if there is a certain aspect of the final order with which Complainant disagrees, she has not indicated as much. We address the Agency's contention in the "Analysis and Findings" section below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (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
Equitable Relief
At the outset, we note that we agree with the Agency's finding of sex discrimination.2 When discrimination is found, the Agency must provide complainant with full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Wan v. U.S. Postal Serv., EEOC Appeal No. 01995204 (July 11, 2001). The Commission recognizes that not all harms done are amenable to precise quantification; the burden of limiting the remedy, however, rests with the employer. Smallwood v. United Airlines, Inc., 728 F.2d 614, 616 n.5 (4th Cir.), cert. denied, 469 U.S. 832 (1984).
A review of the record indicates that the relief provided in the Agency's final order did not make Complainant whole. Although the Agency awarded Complainant compensatory damages and attorney's fees, evidence in the file indicated that Complainant used leave as a direct result of the sexual harassment to which she was subjected. The Agency's decision is silent on this issue. We therefore decline the Agency's request to dismiss this appeal as moot.
Complainant is entitled to restoration of leave which was taken for purposes of avoiding or recovering from discriminatory conduct. In order to be entitled to leave restoration, the employee must demonstrate a causal nexus between the discrimination and need to take leave. Velez v. U.S. Postal Serv., EEOC Appeal No. 01902746 (Nov. 16, 1990). Complainant has done that here. On February 4, 2005, after drafting a memorandum describing S1's behavior at S2's request, Complainant took extended sick leave until February 21, 2005. She began seeing a psychiatrist on February 9, 2005, and was diagnosed with post-traumatic stress syndrome and prescribed medication for her symptoms.
In a February 16, 2005, letter to S2, the psychiatrist stated that Complainant suffered from significant and persistent emotional stress symptoms resulting from her supervisor's actions. Formal Complaint, Attachment 3. He further stated that having to write a report of the incidents to which she was subjected caused an exacerbation of "crying spells, excessive worrying, nervous shaking, poor concentration, low mood and motivation, erratic sleep...and a dread of going to the workplace due to the possibility of encountering" S1. Id. The letter closed by stating that Complainant should be excused from work for a reasonable period of time due to the above-mentioned events. Id. This information establishes a link between Complainant's absence from February 7, 2005, until her return on February 21, 2005, a two-week period, and S1's conduct. We will therefore order the Agency to restore to Complainant, or to reimburse Complainant for, two weeks of annual leave.
Agency Prevention of Discrimination
Pursuant to our regulations, agencies are required to review, evaluate and control managerial and supervisory performance in such a manner as to insure a continuing affirmative application and vigorous enforcement of its EEO policy, and provide training and advice to managers and supervisors to assure their understanding and implementation of the EEO program. See 29 C.F.R. � 1614.102(a)(5). Further, Agency's are required to take appropriate disciplinary action against employees who engage in discriminatory practices. See 29 C.F.R. � 1614.102(a)(6).
We note that the Agency ordered BOP to post a notice of its discrimination finding and "take appropriate corrective action to prevent further discrimination or harassment from [o]curring" at FCC Oakdale or by S1. The Commission appreciates the Agency's efforts in this regard. Nothing in the Agency's final order, however, ensured that BOP would require S1 to be trained in the area of EEO law, particularly the law against sexual harassment. We will therefore order the Agency to take this action or to confirm that it has already done so. The Commission is satisfied that S1 was disciplined as a result of his actions because the evidentiary record indicated he was demoted and reassigned to a downgraded non-supervisory position in Dallas, Texas.
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 finding of discrimination but MODIFY the equitable relief awarded Complainant, and the actions BOP must take to ensure the prevention of further discrimination. The case is therefore REMANDED for further action in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following actions within 30 calendar days from the date this decision becomes final:
(1) The Agency shall reimburse or restore to Complainant two weeks of annual leave. The Agency shall, with Complainant's cooperation, ascertain the exact number of hours at issue.
(2) The Agency shall provide S1 with a minimum of sixteen (16) hours of training in the area of EEO law, especially with regard to the law against sexual harassment and managers' responsibility to report and prevent all harassment, sexual or otherwise, in the workplace, or confirm that it has already done so.
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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.
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 (Nov. 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 22, 2012
Date
1 While Complainant's appeal was premature because it was filed before the Agency issued its final order, her appeal was perfected once the Agency issued its final decision.
2 We note that Complainant also alleged discrimination on the bases of race and age but the Agency found there was no evidence she was sexually harassed on those bases. We also note that Complainant alleged discrimination when she was not selected for the position of Systems Health Administrator on April 14, 2004, July 6, 2004, October 15, 2004, and January 14, 2005, but the Agency dismissed those as untimely. Complainant does not challenge these matters on appeal. We exercise our discretion to review only those matters placed before us on appeal. See EEO MD-110, at Chap. 9, � IV.A.
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0120080335
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080335