0120062637
02-12-2009
Beverly Ryan,1 Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Beverly Ryan,1
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120062637
(formerly 01A62637)
Hearing No. 240-2004-00051X
Agency No. M-03-0030
DECISION
On March 16, 2006, complainant filed an appeal from the agency's February
27, 2006, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
an employee of the agency. Complainant contacted an EEO Counselor on
November 12, 2002. On April 10, 2003, complainant filed an EEO complaint
alleging, among other things, that she was discriminated against:
1. in reprisal for prior protected EEO activity arising under Title
VII [and the Rehabilitation Act] when on October 17, 2002, a management
official (MO-1) summoned her to agency headquarters and gave her a Letter
of Reprimand based on the findings of an Internal Affairs investigation
which had been initiated on March 22, 2002, pursuant to the report of
the Regional Chief (RC-1);
2. on the basis of her race (white) when on September 23, 2002, the
new Regional Chief (RC-2) required her to close out her books weekly
rather than monthly, like her co-workers, due to discrepancies in her
work-related financial accounts; and
3. on the basis of her sex (female) when she was subjected to sexual
harassment by her first level supervisor (SO-1) when: a) in September
2002, he told complainant that he wanted to be with her, wanted her to
move to the city in which he lived to be with him, and that he would
not give her a recommendation for another job; b) on October 13, 2002,
he informed complainant that she had been ordered to come to Washington,
D.C. for an investigation, and then he called her several times a day
asking her to come see him; c) on October 28, 2002, he called complainant
on her cellular phone and told her he was horny, made suggestive sexual
statements, and told complainant he wanted to sleep with her; and d)
on October 30, 2002, he said he would not authorize complainant's leave
and yelled at her for not returning pages when he called her.
The above listed claims were accepted for investigation. Several other
claims in her formal complaint were dismissed by the agency on procedural
grounds.
At the conclusion of the investigation, complainant was provided 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 five-day hearing in October
and December of 2004, but, subsequent to the hearing and prior to the
issuance of a decision by the AJ, in January 2005, complainant withdrew
her hearing request in order to file a civil action in U.S. District
Court. When she did not file in U.S. District Court and her attorney
of record confirmed that she had not done so, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b), dated February 27, 2006,
concluding that complainant failed to prove that she was subjected to
discrimination as alleged.
The final agency decision (FAD) found that claim 2 should be dismissed
for untimely EEO Counselor contact. It noted that she contacted an EEO
Counselor on November 12, 2002, which was more than 45 days from the date
of the incident. Regarding claim 1, the FAD found that complainant failed
to establish a prima facie case of reprisal discrimination, in that she
had not made out a causal connection between what she claimed was her
protected activity and the reprimand, and that the protected activity
was too remote in time to infer a retaliatory motive. Finally regarding
claim 3, the agency concluded that as no tangible employment action had
been carried out by SO-1, this was a case of a hostile work environment.
Although SO-1 denied the alleged events took place, the agency's
final decision did not dispute complainant's version of the events.
It found that as soon as complainant reported the actions of SO-1 to
management, the agency took prompt corrective action and removed SO-1 as
complainant's supervisor. It also found that complainant failed to use
the procedures in place to report the harassment. The agency concluded
that complainant had not been discriminated against, and that it was
not legally responsible for the sexual harassment she experienced.
ANALYSIS AND FINDINGS
At the outset, we affirm the agency's procedural dismissal of the
allegations in complainant's complaint that were not accepted for
investigation. We also affirm the agency's procedural dismissal in its
final agency decision of claim 2 for untimely EEO Counselor contact.
Our review of the record supports the agency's dismissal of these
claims.
We now turn to the merits of the claims that were accepted for
investigation and which the parties litigated before the AJ. Although the
AJ did not issue a decision in this case due to complainant's withdrawal
of her hearing request, we have the voluminous hearing record and
transcript available to review as we consider the issues.
As this is an appeal from an agency decision issued without an AJ's
decision following 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 EEOC Management Directive 110, Chapter 9, �
VI.A. (November 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").
Reprisal claim
The first issue is complainant's reprisal claim. We note that a
complainant can make a claim of reprisal under the Rehabilitation Act,
as well as under Title VII. The events underlying claim 1 stem from an
incident in July 2000, in which complainant claimed that her supervisor,
RC-1, read her confidential medical records, after which he treated her
differently, and subjected her to treatment different from that of her
male colleagues. She opposed his reading of her records as unlawful, and
a violation of her privacy, and complained of the different treatment.
The Rehabilitation Act specifically protects the rights of employees to
keep confidential their medical records. A fair reading of complainant's
claim indicates that she is alleging that there was a violation of
the Rehabilitation Act, in that the violation of her "privacy" was the
unlawful disclosure of her medical information. See 29 C.F.R. � 1630.14.
Although her EEO contact for this claim has been deemed untimely, her
consistent complaints to various management officials over the course of
2000 and 2001 that RC-1 treated her differently based on his knowledge
of her medical information, and treated her differently based on her
sex, formed the basis for her protected EEO activity in this regard.
Complainant apparently had retained an attorney in late 2001, who was in
contact with the agency about her complaints, and through her efforts,2
complainant was transferred to the supervision of a different supervisor,
SO-1, in January 2002, effective in March 2002.
We find that complainant has established a prima facie case of reprisal
discrimination, and we note that the agency met its burden of providing
a legitimate non-discriminatory reason for its actions. The agency
stated that although RC-1 initiated the referral to Internal Affairs,
an independent decision maker issued the Letter of Reprimand after an
Internal Affairs investigation. We find that complainant has not shown
that the agency's reasons for issuing the Letter of Reprimand were
pretext for discrimination, and her reprisal claim fails.
Sexual harassment
The final issue is complainant's claim of sexual harassment.
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 under those bases,
the complainant must show that: (1) she belongs to the statutorily
protected class; (2) she was subjected to unwelcome conduct related to
her membership in that class; (3) the harassment complained of was based
on her 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).
We find that complainant has established elements (1)-(4) regarding her
claim of sexual harassment. The agency does not dispute complainant's
version of the events that transpired between her and SO-1, including
incidents not accepted for investigation as they fell outside the 45
day period before her EEO contact. Included in the untimely events
was an incident in which SO-1 and complainant had sex when out of town
for a training session. Although complainant did not report it at
the time it occurred, on October 31, 2002, she telephoned a co-worker
in Internal Affairs (IA-1) and in the course of the conversation
mentioned that it had happened. IA-1 believed that the sexual contact
was inappropriate for a supervisor and subordinate, and she reported
the incident to superiors, who immediately initiated action to remove
SO-1 as complainant's supervisor. On the same day, October 31, 2002,
complainant was informed that SO-1 would no longer supervise her.
An investigation into SO-1 was initiated by the agency.3
As to the element (5) of a claim of harassment, we now turn to whether
there is a basis for imputing liability to the agency for SO-1's actions.
In Burlington Indus. v. Ellerth, 524 U.S. 742, (1998) and in Faragher
v. City of Boca Raton, 524 U.S. 775, (1998), the Supreme Court made clear
that employers are subject to vicarious liability for unlawful harassment
by supervisors.4 The standard of liability set forth in these decisions
is premised on two principles: (1) an employer is responsible for the
acts of its supervisors, and (2) employers should be encouraged to prevent
harassment and employees should be encouraged to avoid or limit the harm
from harassment. In order to accommodate these principles, the Court
held that an employer is always liable for a supervisor's harassment if
it culminates in a tangible employment action. No affirmative defense
is available in such cases. EEOC Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, supra, at 7. This sort
of claim is analyzed like any other case in which a challenged employment
action is alleged to be discriminatory. If the employer produces evidence
of a nondiscriminatory explanation for the tangible employment action,
a determination must be made whether that explanation is a pretext
designed to hide a discriminatory motive. Id. at 10. In this case,
however, the harassment of complainant did not culminate in a tangible
employment action. Rather she alleges that she was subjected to a hostile
work environment by SO-1, and as such her claim is analyzed pursuant to
a hostile work environment paradigm.
When harassment by a supervisor creates an unlawful hostile environment
but does not result in a tangible employment action, the employer can
raise an affirmative defense to liability or damages, which it must
prove by a preponderance of the evidence. The defense consists of two
necessary elements: (1) the employer exercised reasonable care to prevent
and correct promptly any harassment; and (2) the employee unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise. Id. at Section V. The
first prong of the affirmative defense usually requires an employer
to establish, disseminate, and enforce an anti-harassment policy and
complaint procedure and to take other reasonable steps to prevent and
correct harassment. We find that complainant had been trained in the
sexual harassment policy of the agency, as evidenced by her attendance
at a sexual harassment training class. We also find that the agency
engaged in prompt corrective action when it immediately removed SO-1 as
complainant's supervisor on the same day it found out that there was a
sexual relationship between complainant and SO-1.
We also find that complainant failed to take advantage of preventive
opportunities, in that she failed to utilize a sexual harassment procedure
in which she had been trained. In fact, complainant did not initiate
the EEO process until after an Internal Affairs investigation into
her relationship with SO-1 had been started, based on her conversation
with IA-1. In light of this, we find that there is no basis for imputing
liability to the agency.
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
decision finding that complainant was not discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
2-12-09
__________________
Date
2-12-09
____________________
Date
1 Complainant is identified by an alias. The agency asserts that the
use of her name will interfere with certain operations. In the future,
the agency should address such concerns before the matter reaches the
appellate level.
2 The record is unclear as to whether or not it was resolved with a
formal settlement agreement.
3 Before the agency could complete the investigation or discipline SO-1,
SO-1 retired from the agency to begin employment with a different federal
agency, effective November 16, 2002.
4 In the context of supervisory liability, the Supreme Court and the
Commission have moved away from the commonly used categories of "quid
pro quo" and hostile work environment harassment, finding it more useful
analytically to distinguish between harassment that results in a tangible
employment action and harassment that creates a hostile work environment.
EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999).
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0120062637
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
7
0120062637