01983379
04-04-2000
Ella R. Dixon, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Ella R. Dixon v. Department of Agriculture
01983379
April 4, 2000
Ella R. Dixon, )
Complainant, )
) Appeal No. 01983379
v. ) Agency No. 94-0118
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination on the bases of sex (female)
and reprisal (prior EEO activity), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant claims that: (1) between September of 1993 and January of
1994, her first-level supervisor (S1) discriminated against her on the
above-stated bases by creating a hostile work environment and making
false accusations about her work performance; and (2) between August of
1993 and December of 1993, she was sexually harassed by S1. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the FAD is AFFIRMED IN PART and REVERSED IN PART.
ISSUE PRESENTED
The issues presented herein are whether complainant has established
that she was discriminated against: (1) based on reprisal for prior
EEO activity and sex when S1 created a hostile work environment by
unjustifiably criticizing her work performance and proposing disciplinary
action between September of 1993 and January of 1994; and (2) based on
sex when she was allegedly sexually harassed between August and December
of 1993.
BACKGROUND
The record reveals that complainant, a GS-1863-7 Food Inspector at the
agency's Food Service and Inspection Service facility in Fort Smith,
Arkansas, claims that after she made a statement in another employee's
sexual harassment and discrimination complaint against S1, he began taking
punitive measures against her, specifically, by falsely criticizing her
work, by directing two agency Food Inspectors to criticize her work and by
proposing disciplinary action against her for rejecting normal chicken,
which created a hostile work environment. In addition, complainant has
contended that starting about one month before she made the statement
against S1, on three or four occasions he approached her from behind while
she was working on the inspection line, pressed himself against her and
rubbed against her in sexually suggestive ways. Believing she was a
victim of discrimination, complainant filed a formal EEO complaint with
the agency on January 8, 1994, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a final decision based on the record.
The agency's FAD initially found that although complainant originally
alleged that she was sexually harassed by her night-shift supervisor,
she later stated in her affidavit that while she was not the victim of
sexual harassment by S1, other female employees were. As a result,
the FAD found that as no other disparate treatment allegations were
contained in her complaint, complainant failed to state a prima facie
case of sexual harassment. The FAD further found that management's
actions in proposing disciplinary action against complainant due to her
supposed rejection of normal chicken and otherwise criticizing her work
performance were in reprisal for her participation in the employment
discrimination complaint of another employee. As remedies, the agency
ordered complainant's record to be expunged of all references to work
deficiencies for September through November of 1993, but found she was
not entitled to compensatory damages or attorney's fees. Complainant has
made no new contentions on appeal, while the agency contends that the
FAD is correct.
ANALYSIS AND FINDINGS
1. Reprisal
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the FAD's finding on Issue 1 that
the agency discriminated against complainant by creating a hostile
work environment as reprisal for her participation in the employment
discrimination complaint of another employee. In so finding, we agree
with the FAD's implicit finding that S1's articulated reasons for the
actions against complainant were neither credible nor supported by the
evidence of record, and that there could be no reasons for the actions
taken other than reprisal for complainant's testimony against S1 in
the other employee's EEO complaint. However, we find that there is
insufficient evidence to conclude that S1's actions against complainant
were related to her sex. Complainant has failed to demonstrate that S1
treated similarly situated male employees more favorably than he did
complainant, and thus she failed to demonstrate a prima facie case of
sex discrimination.
2. Sexual Harassment
We disagree with the FAD's finding that complainant failed to establish
a prima facie case of sexual harassment. While the agency contends
that complainant recanted her claim that S1 sexually harassed her,
a thorough review of complainant's affidavit dated August 31, 1994,
demonstrates that she again alleged that S1 came up behind her under the
pretense of watching her work and pressed and rubbed against her body.
In addition, we find that there is no testimony from complainant or other
documentation in the case record which supports a finding that complainant
contradicted or recanted her claim that S1 sexually harassed her. It is
well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of sexual harassment, complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on 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).
Regarding element (1), complainant has established that she is a member
of a statutorily protected class. With regard to elements (2) and (3),
the Commission finds that the conduct in question was clearly related
to complainant's gender. In so finding, we conclude that the evidence
establishes that S1, on numerous occasions, came up behind complainant,
pressed himself against her and rubbed against her. Further, we note that
S1 has been the subject of other sexual harassment complaints by other
female employees under his supervision, and numerous females testified
that he touched and patted them in an unwelcome manner. We also find that
complainant's behavior establishes that she found S1's actions unwelcome.
Regarding element (4), it is clear from the record that complainant was
subjected to three or four incidents within a five month period by which
S1 had direct physical and sexually suggestive contact with her and
the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment. As such, we find, based on both the
volume and content of S1 actions, that they were "sufficiently severe
[and] pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993).
In considering whether complainant has satisfied element (5),
the Commission notes that the agency is potentially liable for the
harassment if complainant can demonstrate that it was created by
either a supervisor or someone who acts in a supervisory capacity. The
Commission's recently-issued Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) (hereinafter Vicarious Liability Guidance) states that an
individual qualifies as an employee's supervisor if: (a) the individual
has authority to undertake or recommend tangible employment decisions
affecting the employee; or (b) the individual has authority to direct
the employee's daily work activities. Vicarious Liability Guidance, at 5.
As complainant's night supervisor, S1 reviewed all of her work, was
responsible for preparing reports regarding errors he found in her
work, and provided input into her performance rating. What this means,
in effect, is that S1 exercised considerable control over complainant's
work product, and, significantly, how that work would be assessed. Based
on these factors, the Commission concludes that S1 exercised sufficient
control over complainant to be deemed to have acted in a supervisory
capacity. Therefore, we find that liability for S1's harassment is
imputed to the agency. An employer is subject to vicarious liability for
sexual harassment when it is "created by a supervisor with immediate (or
successively higher) authority over the employee." Burlington Industries,
Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998).
Accordingly, because complainant has satisfied Elements 1 through 5,
we find she has established that she was subjected to sexual harassment.
3. Liability
When the harassment does not result in a tangible employment action being
taken against the employee, the employer may raise an affirmative defense
to liability. The agency can meet this defense, which is subject to
proof by a preponderance of the evidence, by demonstrating: (a) that it
exercised reasonable care to prevent and correct promptly any sexually
harassing behavior; and (b) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the agency or to avoid harm otherwise. Burlington Industries, supra;
Faragher, supra; Vicarious Liability Guidance, at 12. This defense is not
available when the harassment results in a tangible employment action
(e.g., a discharge, demotion, or undesirable reassignment) being taken
against the employee.
As we have determined that S1 exercised supervisory authority over
complainant, the agency is vicariously liable for his harassment. In
determining whether the agency can raise a defense to that liability,
we initially find insufficient evidence to conclude that the harassment
resulted in a tangible employment action. In this regard, the only
employment related action taken by S1 against complainant was when he
proposed discipline against her for rejecting normal chicken drumsticks;
however, the record reflects that no actual discipline was taken against
her. In addition, although S1 opposed complainant's transfer to another
shift, he was overruled by his own supervisor and she eventually was
transferred. Accordingly, complainant has not demonstrated that S1's
sexual harassment affected a tangible aspect of her employment.
Because complainant has not established that S1's harassment resulted
in a tangible employment action, the agency can avoid liability for the
harassment by satisfying the affirmative defense. Whether an employer can
meet the first prong of that defense, i.e., that it exercised reasonable
care to prevent and correct promptly any sexually harassing behavior,
depends on the circumstances of the particular situation. Vicarious
Liability Guidance, at 15. At a minimum, however, the employer must have
a policy and complaint procedure against the harassment that contains
the following elements: (1) a clear explanation of what constitutes
prohibited conduct; (2) assurances that employees who bring complaints
of harassment or provide information related to such complaints will be
protected against retaliation; (3) a clearly described complaint process
that provides possible avenues of complaint; (4) assurance that the
employer will protect the confidentiality of harassment complaints to
the extent possible; (5) a complaint process that provides a prompt,
thorough, and impartial investigation; and (6) assurance that the
employer will take immediate and appropriate corrective action when
it determines that harassment has occurred. Id. at 17. Based on the
Commission's review of the record, it is not apparent that at the time
S1 began harassing complainant in August of 1993 the agency had a
policy and complaint procedure in place which contained these elements.
Accordingly, because the agency has not satisfied the affirmative defense,
the Commission finds that it is liable for the harassment of complainant
that occurred between August of 1993 and December of 1993.
Therefore, after a careful review of the record, the FAD is AFFIRMED
in PART and REVERSED in PART. It is the decision of the Commission
to REVERSE the FAD as it pertains to Issue 2 and find that complainant
was discriminated against based on sex when she was sexually harassed
between August and December of 1993; and to AFFIRM the FAD's finding of
discrimination with regard to Issue 2.
The agency is ORDERED to take the following actions:
1. The agency shall take appropriate preventative steps to ensure
that no employee is subjected to sexual harassment and to ensure that
appropriate steps are taken immediately after management is notified of
any such harassment.
2. The agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages for the harassment
she experienced between August and December of 1993. West v. Gibson, 527
U.S. 212 (1999). The agency shall allow complainant to present evidence
in support of her compensatory damages claim. Complainant shall cooperate
with the agency in this regard. Thereafter, the agency shall issue a
final decision. 29 C.F.R. �1614.110. The supplemental investigation
and issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final. A copy of the final
decision must be submitted to the Compliance Officer, as referenced below.
3. In the event that S1 remains in the agency's employ, he shall not
be permitted to work in the same module as complainant.
4. In the event that S1 remains an employee of the agency, the agency
shall provide a minimum of sixteen (16) hours of EEO sensitivity training
with respect to Title VII and sexual harassment.
5. The agency shall provide a minimum of eight (8) hours of remedial
training for all managers and supervisors located at the facility, to
ensure that acts of sexual harassment do not recur, that no retaliatory
acts are taken against any employee who opposes unlawful discrimination,
including sexual harassment and that persons reporting instances of
alleged sexual harassment are treated in an appropriate manner.
6. The agency shall provide remedial training for S1 and all managers
and supervisors located at the Fort Smith facility to ensure that acts
of sexual harassment do not recur, that no retaliatory acts are taken
against any employee who opposes unlawful discrimination, including
sexual harassment, and that persons reporting incidents of alleged sexual
harassment are treated in an appropriate manner.
7. The agency shall consider discipline for the managers and supervisors
who have been found to have created a sexually hostile environment and
permitted it to exist.
8. To the extent it has not already done so, the agency shall expunge
complainant's record of all references to work deficiencies for the
period from September through November of 1993 and shall further
take appropriate administrative action against all agency officials
responsible for retaliating against complainant, as previously required
by the agency's Final Agency Decision dated January 30, 1998.
9. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Food Service and Inspection Service
facility in Fort Smith, Arkansas, copies of the attached notice. Copies
of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to insure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
April 4, 2000
_______________
Date Carlton M. Hadden, Acting 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 after it was mailed. I certify
that the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________
Date Equal Employment Assistant
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The United States Department of Agriculture, Food Safety and Inspection
Service, Fort Smith, Arkansas, supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The United States Department of Agriculture, Food Safety and Inspection
Service, Fort Smith, Arkansas, has been found to have discriminated
against an employee by not responding appropriately to her complaint
that she was being sexually harassed and by retaliating against her
for prior EEO activity. The agency has been ordered to ensure that the
employee and the harasser no longer work in the same area, and determine
whether the employee is entitled to an award of compensatory damages. The
United States Department of Agriculture, Food Safety and Inspection
Service, Fort Smith, Arkansas, will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The United States Department of Agriculture, Food Safety and Inspection
Service, Fort Smith, Arkansas, will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
______________________________
Date Posted: ________________________
Posting Expires: ____________________
29 C.F.R. Part 1614
1 On 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.