01970359
04-04-2000
Hilary Ayers, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Hilary Ayers v. Department of the Treasury
01970359
April 4, 2000
Hilary Ayers, )
Complainant, )
) Appeal No. 01970359
v. ) Agency No. 94-1026
) Hearing No. 100-95-7306X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The Final Agency Decision (FAD) was
issued on September 20, 1996. The appeal was received on October
18, 1996. Accordingly, this appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether complainant was discriminated against
based on her sex (female) when a male co-worker subjected her to a
hostile work environment from May, 1992 to July, 1993.
PROCEDURAL HISTORY
Complainant initially contacted an EEO Counselor on July 14, 1993
and filed a formal complaint on October 15, 1993 alleging sexual
harassment. The complaint was investigated and on January 9, 1994,
complainant requested a hearing before an administrative judge (AJ)
which subsequently took place over a three-day period. On August 14,
1996, the AJ issued her Findings and Conclusions and recommended a
finding of no discrimination which the agency subsequently adopted.
It is that decision which the complainant now appeals.
BACKGROUND
The record indicates the following:
1992 Harassment Allegations
Persistent Requests for Dates
In 1992, complainant (female), an Internal Revenue Service ("IRS")
employee, was on loan from the Research Division, Modeling and Special
Studies Office, to work on the Service Center Organizational Study
("SCOS") project. CW1 (male), another IRS employee, who worked in the
Office of Cost Analysis, was also assigned to work on SCOS.
Complainant and CW1 met on or about May 18, 1992. Complainant alleges
that soon after they met CW1 asked complainant out on a date a total of
eight to ten times over a period of approximately three weeks. CW1 denies
ever asking complainant out. Complainant testified that each time CW1
asked her out she told him that she did not want to date him and only
wanted to be friends. Complainant complained to her supervisor at the
time who advised complainant to make it perfectly clear to CW1 that she
did not want to date him. Complainant again told CW1 that she did not
want to date him. CW1 seemed to finally accept complainant's wishes
and stopped asking her out on dates.
Offensive Greeting and Touching
Complainant alleges that between August, 1992 and October, 1992,
CW1 harassed her by: (1) greeting her by looking her up and down and
saying, "... you are looking good;" (2) mimicking CW2<2>; (3) stating
to complainant that "when [CW2] leaves it would be you and me just like
you and [CW2];" and (4) touching her on six occasions, including knee
to knee contact, touching complainant's arms, and running his hands up
and down complainant's back. Complainant testified that each time CW1
harassed her she would give him a dirty look and walk away.
Complainant testified that in mid-October, 1992, CW1 walked up to her
while she was sitting in his chair in his cubicle, standing approximately
three inches away from complainant with his thumb in his belt, his
fingers down toward his crotch, and his crotch right in complainant's
face ("vulgar stance incident"). Complainant testified that immediately
following the "vulgar stance incident," that same day, she told CW1 that
his behavior was unacceptable and that if he continued she would file
a grievance. CW1 denies each allegation of harassment by complainant.
Complainant also testified that the day following the "vulgar stance
incident" she told her then acting supervisor, S1, of all the incidents
with CW1 from May, 1992 to October, 1992, including the "vulgar stance
incident." S1 testified that he and complainant talked on a number of
occasions where complainant made it clear that she was uncomfortable
working with CW1. In addition, S1 testified that he recalled complainant
complaining that CW1 touched her arms, but did not remember being told
that CW1 almost put his crotch in complainant's face. S1 also stated that
complainant had described "temper tantrums, banging things in the office,
unprofessional language, and . . . remarks [with] sexual overtones."
While S1 did not remember specifics of the complaints, he testified that
on at least one occasion he indicated that CW1's actions could be viewed
as sexual harassment and he advised complainant to tell CW1 to stop.
Complainant further testified that the day after she put CW1 on notice, he
grabbed her arm and told her, "You don't like it when I touch you, do you?
Complainant replied, "No, ... I don't. Now get your hands off me."
The record reflects that complainant contemporaneously complained of
CW1's conduct to her co-workers. One co-worker testified that the
topic of CW1's unwelcome attention and touching came up various times
during lunches with complainant throughout 1992 and 1993. In addition,
another co-worker confirmed that complainant often spoke of her discomfort
with CW1.
1993 Harassment Allegations
Hostility Toward Complainant
It is undisputed that from November, 1992 to July, 1993, CW1 did not ask
complainant out, touch her in any manner, nor did he stand in front of
her in a vulgar manner. However, complainant testified that after she
put CW1 on notice, CW1's behavior toward her became openly hostile.
The record reflects that for a few months after complainant put CW1 on
notice, complainant's exposure to CW1 was limited because the project
that had brought complainant to the Office of Cost Analysis was coming to
a close. That exposure increased again when complainant's mathematical
modeling skills were requested once more by the Office of Cost Analysis
in March of 1993. The Team Leader (TL) requested complainant's assistance
on the IRS University ("IRSU") project.
However, before complainant would agree to work on the IRSU Project, she
and her supervisor, S1, met with TL to obtain assurances that CW1 and
complainant would not be working on the same portion of the project.
S1 testified he did not want complainant to have to work with CW1
since working with him before had not gone very well. In addition, S1
testified that he left that meeting feeling assured that TL was going
to make the proper arrangements to keep CW1 away from complainant.
TL testified that he agreed to keep complainant and CW1 apart on the
project. The record reflects that CW1 and complainant were, in fact,
assigned to wholly separate aspects of the IRSU Project and were not
required to work together in any manner.
Even though CW1 was not working with complainant, the record reflects that
he allegedly exhibited hostile behavior toward her when they were alone.
Yet, CW1 would seek complainant out in meetings and other public forums
attempting to get close to complainant. In addition, CW1 also began to
criticize complainant's work to complainant, co-workers and supervisors.
One co-worker described CW1's conduct as a "fixation." (I.F. at 25) TL
stated that CW1's conduct indicated an "obsession" regarding complainant.
In April, 1993, complainant and a team member (TM) were having a meeting
about the modeling effort of the IRSU Project. CW1 entered the meeting
uninvited and attempted to take over the meeting, adding opinions which
directly contradicted complainant's position despite the fact that CW1
did not work on that portion of the project. Complainant found CW1's
conduct (statements and body language) intentionally intimidating and
antagonizing. While TM testified at the hearing that he did not recall
such a meeting, he did not deny complainant's allegations and stated
that it may have happened.
After the meeting, complainant spoke with TL and asked him what was
going on with CW1. Complainant testified that TL stated to her that
CW1 had been complaining about complainant every day for some time but
wanted to be teamed up with complainant because he felt he should be
doing the coding. Complainant then explained to TL that there was a lot
more to the story than he may have been aware and explained the entire
history of problems complainant had with CW1.
While TL could not recall all of complainant's complaints at the hearing,
he did recall complaints: (1) regarding professional conflicts with CW1;
(2) that CW1 was talking negatively about her with coworkers; (3) that CW1
asked complainant to go to a baseball game; and (4) that CW1 had touched
complainant on the shoulder. In addition, TL advised complainant that he
would also bring the incident to the attention of their supervisor, S2.
TL testified that he advised S2 that complainant and CW1 were having
personality problems. In addition, complainant testified that she
notified another supervisor, S3, about the incident as well.
July 8, 1993 Incident - CW1 Allegedly Backs Complainant into a Desk
On July 8, 1993, complainant discovered that CW1 was scheduled to go
on a data collection trip for the modeling effort on which CW1 was not
supposed to be working. Since TL was out of the office, complainant
spoke with TM about the decision to send CW1 to New Jersey on the data
collection trip and advised TM that CW1 did not have enough knowledge
of the modeling effort to go to New Jersey alone. Following her
conversation with TM, CW1 walked into TL's cubicle where complainant,
and two co-workers, CW3 and CW4, were discussing the New Jersey trip.
CW1 stated that he wanted to support complainant but TL was trying to keep
them apart. CW1 continued walking closer toward complainant forcing her
to walk backwards into a desk in order to maintain her personal space.
CW1 kept walking toward complainant attempting to "shake" her hand while
pleading with complainant to give him a role on the modeling project.
CW1 stated that he wanted to work with complainant. Complainant ended
up bending backwards against the desk.
One of the co-workers present, CW4, corroborated complainant's account.
Complainant stated that she felt threatened by CW1's actions and
immediately called TL at home. TL confirmed this conversation took
place and that complainant was scared by the incident. S3 testified that
complainant recounted the incident to her the next day. That testimony
is consistent with that of an eye-witness. At that time, S3 directed
complainant to S4, who was on a sixty-day detail as complainant's first
line supervisor. According to S3, it was the first line supervisor's
job to worry about such "day-to-day things." Complainant spoke to S4.
S4's testimony and notes of the conversation confirm that complainant
related the history of CW1's unwanted behavior from May, 1992 to the
present, including how CW1 became hostile toward complainant after she
put him on notice. Following the incident, TL advised CW1 that he was
removing him from the project.
July 13, 1993 - CW1 Strikes Complainant with Door
Complainant and CW1 both attended the New Jersey meeting on July 12, 1993.
Upon their return, on July 13, 1993, CW1 went, uninvited, to a meeting
called by complainant. According to coworkers and TL, within minutes CW1
instigated an argument with complainant causing TL to ask CW1 to leave.
TL testified that CW1 shouted at TL and then left the meeting very angry.
Later that same day, CW1, in an angry tantrum, swung open a door seriously
injuring complainant. According to complainant, CW1 intentionally
swung the door open knowing that complainant was directly behind it.
Complainant and CW4 testified that they were talking in the office
just before complainant was hit and accordingly, CW1 should have known
that complainant was behind the door. CW3 corroborated this account.
Complainant and CW4 also testified that CW1 saw complainant in the
office just before the door incident. In addition, while most witnesses
testified that they believed the door was incapable of flying open due to
its weight and the resistance bar at the top, CW4 reported that earlier
that same day, she witnessed CW1 fling open the same door hard enough
to hit the wall.
According to medical documentation in the record dated between July,
1993 and July, 1994, as a result of the door slamming into complainant
on July 13, 1993, she suffered the following injuries: (1) severe
contusion of her left sciatic nerve which has resulted in nerve damage
and paralysis of her leg and foot; and (2) reflex sympathetic dystrophy.
Complainant has significant pain in her lower extremities. In addition,
as of April, 1994, complainant has great difficulty with walking and
uses an ankle/foot orthosis.
AJ'S FINDINGS AND CONCLUSIONS
The AJ made her findings, conclusions and recommendations which the
agency adopted in their entirety.
AJ Excluded 1992 Overtly Sexual Conduct
Persistent Requests for Dates
The first offense complainant complained of was being repeatedly
asked out by CW1 over a three week period. The AJ found that while
complainant's supervisor failed to investigate complainant's allegations
or take corrective action against CW1, the allegations did not rise to
the level of severity or pervasiveness to constitute sexual harassment.
The AJ also found that even if such actions were sufficiently severe or
pervasive to constitute sexual harassment, they were untimely counseled
and the continuing violation theory could not be invoked because no
timely complained of acts constituted sexual harassment.
Unwelcome Touching and Vulgar Stance
The AJ found that the evidence supported the allegation of unwelcome
touching and showed that the agency's response was inadequate. However,
the AJ disregarded this evidence because she found complainant's July,
1993 complaint untimely with respect to the unwelcome touching. The AJ
found that because S1 could not recall being notified of the incident
where CW1 put his crotch in complainant's face, and because no witness
could corroborate this particular allegation, it was not proven.
AJ Found 1993 Alleged Hostility As Non-Sexual Events
The AJ considered the 1993 events alone and found them to evidence a
hostile work environment but not to be motivated by sex or protected
under Title VII. In addition, the AJ stated that there were no male
comparators who were similarly situated to complainant and who were
treated differently by CW1. Accordingly, the AJ did not find the 1993
acts to constitute sex-based discrimination.
AJ Found No Evidence Which Supported Finding that Door Incident had
Discriminatory Intent
The AJ found that there was no evidence that indicated that CW1 saw
where complainant was standing when he flung open the door or that his
perception of the door's resistance was different from that of other
employees who similarly believed it could not be swung open so easily.
Accordingly, the AJ was persuaded that when CW1 opened the door on July
13, 1993, he did not expect to hit anyone.
ANALYSIS AND FINDINGS
AJ Erred in Excluding 1992 Allegations
The AJ excluded the 1992 allegations from consideration and solely
considered the 1993 allegations in determining that complainant's hostile
work environment was not based upon sex. In doing so, the AJ disregarded
crucial viable evidence. Accordingly, we find that it was improper to
exclude the 1992 allegations.
While the AJ excluded the 1992 allegations based on a failure of the
continuing violation theory, neither she, nor the agency, dismissed any
portion of complainant's complaint for untimeliness.<3> We find that
since no portion of the complaint was dismissed, it was improper for
the AJ to exclude the 1992 allegations from consideration.
In addition, we find a continuing violation present under these facts.
See Wibstad v. USPS, EEOC Appeal No. 01972699 (August 14, 1998).
In Wibstad, we held that despite the fact that "complainant had a
reasonable suspicion of sexual harassment long before she contacted an
EEO counselor," since she timely contacted an EEO counselor while the
hostile environment was still ongoing, the sexual harassment allegation
was timely. As we did in Wibstad, we find that complainant's allegations
of sexual harassment in 1992 share a common nexus with the hostile
and retaliatory behavior of CW1 in 1993 and accordingly, complainant's
allegations of sexual/sex-based harassment are timely.
Moreover, even if the agency properly dismissed the 1992 allegations
from the complaint, those allegations, nevertheless, should have
been considered as background evidence in determining whether the
1993 allegations consisted of sexual harassment. See Brandenberger
v. Army, EEOC Appeal No. 01921751 (March 31, 1994), aff'd on recon.,
Brandenberger v. Army, EEOC Request No. 05940621 (November 2, 1995),
(rejecting the exclusion of untimely allegations of sexual harassment
finding that "prior incidents are useful and probative evidence as to
whether discriminatory harassment has occurred, and it is the Commission's
practice to consider prior incidents as background evidence".) See also
Yonkers v. DOT, EEOC Request No. 05930730 (January 4, 1994) (ordering the
agency to consider allegations of hostile environment sexual harassment
as background information when addressing complainant's retaliation
claim); Koritz v. USPS, EEOC Request No. 05910857 (January 31, 1992);
Gafforino v. USPS, EEOC Request No. 05910847 (December 30, 1991).
Accordingly, as set forth above, we find that the AJ improperly excluded
complainant's allegations of harassment in 1992. Upon consideration
of the entire record, including the 1992 allegations, we must conclude
that the preponderance of the evidence supports a finding of hostile
work environment in violation of Title VII.
2. Sexual/Sex-based Harassment Claim
In order to prevail on a claim of sexual harassment, complainant must
show that: (a) she was subjected to unwelcome conduct; (b) the unwelcome
conduct was related to her gender; (c) 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
(d) some basis exists to impute liability to the employer (i.e.,
supervisory employees knew or should have known of the conduct but
failed to take corrective action). Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65
(1986); 29 C.F.R. �1604.11(a)(d)(1995); Wibstad v. USPS, EEOC Appeal
No. 01972699 (August 14, 1998); McCleod v. SSA, EEOC Appeal No. 01963810
(August 5, 1999).
Although the Commission Guidelines specifically address conduct that is
sexual in nature, sex-based harassment (i.e., harassment not involving
sexual activity or language) may also give rise to Title VII liability
(just as in the case of harassment based on race, national origin or
religion, etc. ) if it is sufficiently severe or pervasive and directed
at employees because of their sex. See EEOC Policy Guidance on Current
Issues of Sexual Harassment N-915-050, dated March 19, 1990, p. 19;
See also, Hall v. Gus Construction Co., 842 F.2d. 1010 (8th Cir. 1988);
Owens v. DOT, EEOC Request No. 05940824 (September 5, 1996). "Acts of
physical aggression, intimidation, hostility or unequal treatment based
on sex may be combined with incidents of sexual harassment to establish
the existence of discriminatory terms and conditions of employment."
EEOC Policy Guidance on Current Issues of Sexual Harassment N-915-050,
dated March 19, 1990, p. 19
The AJ made few findings of fact. First, the AJ found that the
allegations regarding CW1's persistent requests for dates did occur.
The AJ also found that unwelcome touching occurred but did not render a
finding of fact with respect to the details of complainant's allegations.
In addition, the AJ found that complainant failed to prove that the
"vulgar stance incident" occurred since there was no witness who could
corroborate complainant's account of the incident.<4> Lastly, the AJ also
determined that there was no evidence which supported the finding that CW1
intentionally struck complainant with the door. The AJ did not determine
whether or not she found complainant, CW1 or any other witness credible.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Cameral Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
AJ's Findings of Fact Unsupported by the Record
While the AJ found that complainant was repeatedly asked out by CW1
over a three-week period, complainant complained to her supervisor, and
the supervisor failed to investigate complainant's allegations or take
corrective action, the AJ, nevertheless, found that such conduct did
not violate Title VII since it failed to rise to the level of severe
or pervasive. As we discussed supra, we find that, in reaching this
ruling, the AJ erred in failing to consider the requests for dates as
part of the entire record of alleged harassment. Upon review of the
record as a whole, as discussed infra, we find the harassment sustained
by complainant clearly sufficiently severe and pervasive to constitute
a violation of Title VII.
In addition, as indicated supra, we find that the AJ erred in failing
to consider the 1992 events when determining whether the later conduct
was based upon complainant's gender. After properly considering all
allegations of harassment, we must conclude that the 1993 conduct was
motivated by complainant's gender.
The AJ also determined that the incident where CW1 struck complainant with
a door was unintentional, and therefore lacked discriminatory intent.
Specifically, the AJ found that no evidence indicated that CW1 saw
where complainant was standing when he flung open the door, or that his
perception of the door's resistance was different from that of other
employees who similarly believed it could not be swung open so easily.
We find the AJ's finding unsupported by substantial evidence.
The evidence of record shows the following: On July 13, 1993, CW1
came uninvited to a meeting conducted by complainant. CW1 instigated
a heated argument which caused him to be removed from the meeting by
a supervisor. CW1 left the meeting in an angry state. Two to three
hours later, CW1 was still very angry and was seen throwing his trash
can and items on his desk. Several witnesses testified that the office
where complainant was injured was very small, with excellent acoustics.
The record shows that conversations in the office were clearly overheard.
The undisputed record shows that just prior to being struck by the door,
complainant was speaking with a co-worker whose office was next to the
door. Another co-worker, who was on the phone in her own cubicle in the
same office, testified that she could hear the two speaking. In addition,
the record indicated that CW1 saw complainant standing next to the door.
The evidence shows that just minutes prior to the door incident, CW1 and
complainant were both walking in the hall toward the office. Complainant
entered the office following right behind CW1. As complainant entered
the office, CW1 came out of his cubicle and stared at her. In addition,
the evidence shows that the cubicle partitions were approximately five
feet in height, while CW1 and complainant are taller than five feet.
In addition to evidence supporting the finding that CW1 knew complainant
was behind the door, evidence in the record supports the conclusion that
CW1 should have known that the door could hit the wall if he swung it hard
enough. While several witnesses testified that they had no idea that the
door could be flung open in such a manner, the record shows that earlier
that day (prior to the door incident), one of complainant's co-workers
witnessed CW1 opening the same door hard enough to hit the wall.
In finding the incident unintentional, the AJ seemingly relied upon
CW1's denial along with the witness testimony which supported the
finding that employees within the office generally believed that the
door was incapable of slamming into the wall. The AJ seemingly failed
to consider the compelling evidence set forth above. While we have no
reason to doubt the general belief of the office staff that the door
was incapable of slamming into the wall, the record shows that CW1, and
at least one other co-worker, knew otherwise. The only testimony which
refutes this conclusion comes from CW1. However, the record indicates
that CW1's credibility is questionable, at best. Specifically, the
record shows that CW1 testimony was directly contradicted by several
unbiased third-party witnesses on numerous occasions. Moreover, the
source of the evidence, set forth above, is provided through testimony
of unbiased third-party witnesses (co-workers) and is largely undisputed.
Given the probative nature of such evidence, CW1's credibility problems,
and the AJ's seemingly inaccurate statement that "no evidence indicated
that [CW1] saw where the complainant was standing when he flung open
the door, or that his perception of the door's resistance was different
from that of other employees who similarly believed it could not be swung
open so easily," we find the conclusion that CW1 unintentionally struck
complainant with the door not supported by substantial evidence.
AJ's Findings of Fact Supported by the Record
The AJ stated the following in support of her finding that the "vulgar
stance incident" was not proven: "[S1] disputed his knowledge that
CW1 almost put his crotch in complainant's face. Were it just [S1's]
word against complainant's, I might not credit [S1]. However, none
of complainant's witnesses corroborated complainant's claim that she
contemporaneously complained about the event. ... Beyond complainant's
own testimony, she adduced no evidence that this event occurred, and
in fact, so many witnesses could not corroborate her testimony that I
must resolve this credibility question against complainant. Therefore,
I must conclude that even if this event was timely complained of, no
liability arises because of the fact of the event was not proven."
The question of whether or not substantial evidence exists in the record
to support this particular finding of fact is quite close, given the
limited nature of the AJ's credibility finding and the substantial
weight of the record in favor of complainant's allegations. While the
AJ characterizes S1's testimony as a "denial" that he was ever informed
about the "vulgar stance incident," S1 actually testified that he could
not "recall" whether he was notified.<5> In addition, the record shows
that while some witnesses could not recollect certain facts sufficient
to corroborate all the specifics of each allegation, no witness, other
than CW1, directly contradicted complainant's testimony in any regard.<6>
Moreover, while the AJ failed to make a credibility determination with
respect to CW1, we find the record supports the finding that CW1 was
not credible. In addition, several witnesses corroborated complainant's
testimony that CW1's behavior was "unprofessional," "absurd," and
"obsessive."
We find that a fair reading of the AJ's decision could indicate that she
improperly required corroborating evidence of complainant's allegation
when she determined that complainant failed to prove the "vulgar stance
incident." However, since another fair reading could indicate that the
AJ concluded, after considering the demeanor and statements of S1, that
he denied ever being informed about the "vulgar stance incident," we find
the credibility findings she made against complainant on this point not
unreasonable. Accordingly, we affirm the AJ's finding that the "vulgar
stance incident" was not proven. Nevertheless, as set forth, infra,
we find sufficient evidence of sexual/sex-based harassment in the record.
The Conduct in Question was Unwelcome
We find that the record indicates unwelcomeness. Several witnesses
testified to contemporaneous complaints by complainant to her supervisors
and co-workers. In addition, the record reflects that complainant did
not want to work with CW1 and obtained a commitment from TL that they
would not be working together on the IRSU project. Moreover, the record
reflects that complainant notified CW1 that his behavior was unwelcome
in numerous ways from dirty looks to explicit warnings. See Lipsett
v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988);
EEOC Policy Guidance on Current Issues of Sexual Harassment N-915-050,
pp. 7-10 (March 19, 1990).
The Harassment was Based on Sex
We find that the pattern of harassment in this matter contains both
overtly sexual conduct, as well as, sex-based conduct (i.e., conduct not
involving sexual activity or language but directed at complainant because
of her sex). See Owens v. DOT, EEOC Request No. 05940824 (September 5,
1996); Hall v. Gus Construction Co., 842 F.2d 1010, 1014 (8th Cir. 1988);
EEOC Policy Guidance on Current Issues of Sexual Harassment N-915-050,
p. 19 (March 19, 1990).
Here, complainant has shown that she was repeatedly asked out on dates
over the course of several weeks, despite advising CW1 that she was not
interested in him. CW1 asked other co-workers if complainant was dating
anyone and inquired about her personal life. In addition, the record
reflects that over the course of the next few months, CW1 began greeting
and touching complainant in an offensive sexual manner. Complainant
placed CW1 on notice that she would file a grievance if he did not stop.
Following this notification, CW1's conduct changed from explicitly
sexual in nature to overtly hostile, disruptive and intimidating.
The next day, CW1 grabbed complainant's arm and stated: "you don't
like it when I grab you, do you?" Also in the months following this
incident when complainant was in CW1's presence, he exhibited hostility
toward complainant. He criticized complainant's work and protested
his disagreement with complainant's positions on various matters in a
manner that appeared to co-workers as obsessive and unprofessional. Yet,
CW1 had no reason to be involved with any portion of complainant's work.
Although CW1 acted hostile and critical of complainant, he, nevertheless,
attempted to get close to complainant during staff meetings.
We find that the clear pattern of conduct set forth above indicates
harassment based upon sex. While the AJ and agency find that the 1993
conduct indicated a professional conflict, we find that the conduct by
CW1 was harassing, intimidating and hostile and there is no evidence
that any other employee was treated the same way by CW1. For example, TL
disagreed with CW1's view on how to approach the IRSU project, yet had a
good professional relationship with CW1. TL disagreed with CW1's approach
and endorsed complainant's approach to the IRSU project. In addition,
TL made the decision to remove CW1 from the IRSU project altogether.
Yet, there is no record that CW1 ever spoke negatively about TL nor
engaged in any verbal or physical confrontations with him. Based on
the totality of the evidence, we find that complainant's allegations of
sexual harassment are credible and sufficiently gender related to fall
under the protection of Title VII.
Hostile Working Environment
In order to violate Title VII, the harassment must be "sufficiently severe
or pervasive to alter the conditions of the victim's employment and create
an abusive working environment." Meritor Savings Bank v. Vinson, 106
S.Ct. 2399, 2406 (1986). "When the victim is the target of both verbal
and non-intimate physical conduct, the hostility of the environment is
exacerbated and a violation is more likely to be found." EEOC Policy
Guidance on Current Issues of Sexual Harassment N-915-050, p. 17 (March
19, 1990). See also Hall v. Gus Construction Co., 842 F.2d 1010 (8th
Cir. 1988); Olson v. HUD, EEOC Request 05930413 (June 16, 1994).
The harassment in this case involves verbal and physical conduct. CW1's
persistent requests for dates escalated to unwelcome physical touching.
The unwelcome touching escalated to ongoing hostility and intimidation.
The hostility culminated in a physical injury which has left complainant
physically disabled and unable to work. In addition, the record reveals
that complainant contemporaneously expressed discomfort and fear in
response to CW1's conduct. The Commission finds this harassing conduct
to be severe, based on standards of reasonable conduct in the workplace,
and complainant's credible and corroborated statements that she was hurt
both emotionally and physically.
Supervisors' Failure to Take Immediate and Appropriate Remedial Action
Employer Knew or Should Have Known of Sexual Harassment
We find that the record supports the finding that the employer knew or
should have known of the sexual harassment. The AJ found that complainant
notified S3 of the persistent requests for dates, that she advised S1 of
unwelcome touching in 1992 and that management's response was inadequate.
Since the AJ found the 1993 allegations not sex-based, she failed to
determine whether or not the complainant notified her supervisors of
the hostile work environment.
Complainant testified and the record supports, that in April, 1993,
almost three months prior to the door incident, S3, TL<7>, and S1 were
advised of the entire history between complainant and CW1. TL was
consulted on a weekly basis during the month of June, 1993. The record
also reveals that TL, S3, and S4 were also notified of the July 8, 1993
incident when CW1 backed complainant up against a desk. Accordingly,
we find that the complainant sufficiently notified her supervisors of
unwelcome and offensive conduct.
Failure to Take Prompt Remedial Action
Once it is determined that the employer knew or should have known of a
complaint of sexual harassment, in order to avoid liability, the agency
must take action that is prompt and reasonably calculated to end the
harassment. See EEOC Policy Guidance N-915-050 pp. 29-30 (March 19,
1990); Taylor v. U.S. Air Force, EEOC Request No. 05920194 (July 8, 1992).
We find the agency's management-level employees failed to take prompt
remedial action upon learning of sex-based harassment in the workplace.
As the record indicates above, complainant advised S3 and S1 of unwelcome
sexual advances in 1992. Management's advice to complainant was that
she place CW1 on notice that his conduct was unwelcome and inappropriate.
While the record indicates that S3 and S1 understood that the harassment
ended shortly after complainant placed CW1 on notice in October, 1992,
the agency was still under a duty to conduct a follow-up inquiry to
determine if the hostile environment had dissipated. See Wibstad v. USPS,
EEOC Appeal No. 01972699 (August 14, 1998), citing, EEOC Policy Guidance
N-915-050, p. 30 (March 19, 1990) (holding that the employer should make
follow-up inquiries to make sure the harassment has not resumed and the
victim has not suffered retaliation). Moreover, the record indicates
that in January, 1993, complainant advised S1 that shortly after she
placed CW1 on notice, he began acting openly hostile in private and
attempted to get close to her during staff meetings. In response to
complainant's complaint, S1 spoke with CW1 and told him to stop making
negative comments about complainant. However, S1 never spoke to CW1
about sexual harassment. More importantly, S1 did not take steps to
prevent the harassment from continuing. Accordingly, S1's response
was inadequate.
The record further reflects that additional communication between
complainant and other members of her chain of command resulted in less
than effective discussions with CW1, which did not specifically mention
sexual harassment. For example, although complainant made repeated
attempts to get off the IRSU project, she was encouraged to remain on
the project. In addition, despite complainant's complaints to S3, TL
and S4 regarding the June 8, 1993 incident where CW1 backed complainant
up against a desk, CW1 was still permitted to come in close proximity to
complainant. The record also reveals that despite repeated assurances
that management would rectify the situation, complainant was not taken
seriously by members of her chain of command and they failed to follow-up
on her complaints.<8>
We find that management had a responsibility as early as January, 1993
and no later than April, 1993, to have conducted a prompt and thorough
investigation and take steps to end the harassing conduct. An early
response such as a discussion about sexual harassment and a simple
remedial response may have been sufficient to end the harassment.
Rather than taking steps to end the harassment in the work-place,
management allowed the harassment to escalate. Accordingly, we find that
upon being notified of sexual harassment in the work place, management
failed to take prompt and corrective action to end the harassment.
For the foregoing reasons, the Commission REVERSES the agency's final
decision and finds that complainant was subjected to sexual harassment
when CW1 harassed her from May, 1992 to July 13, 1993.
We are disturbed by the widespread failure of management officials to
identify and properly address complaints of sexual harassment in the
workplace. Given the fact that at least five management officials had
knowledge of such harassment and, either failed to take prompt remedial
action, or worse, encouraged complainant to continue working in such
an environment, suggests a lack of institutional control by the agency.
We find that an order by the Commission requiring mere training of the
management officials would fall short in preventing similar failures
by management in the future, because it appears likely that the agency
lacked an effective plan to remedy sexual harassment in its workplace.
Accordingly, as set forth more fully below, we order the agency, inter
alia, to implement an effective instructive management plan<9> which
will provide practical guidance on the proper action that it must take
in addressing complaints of sexual harassment.
In addition, we note that complainant raised a claim for compensatory
damages. Having reviewed the record, however, the Commission finds
that the evidence is insufficiently developed to allow a determination
as to the amount, if any, of compensatory damages due and payable to
complainant. Thus, on remand to the Hearings Unit of the appropriate
EEOC field office for a supplemental investigation, the Administrative
Judge shall issue a decision on this issue in accordance with 29 C.F.R. �
1614.109.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall restore to complainant any sick or annual leave she was
compelled to take in direct response to the hostile work environment
caused by the discriminatory harassment. Complainant may have also
taken sick or annual leave in avoidance of the hostile work environment,
for which she should be reimbursed.
The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC field office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue
a final action in accordance with 29 C.F.R. �1614.110 within forty (40)
days of receipt of the Administrative Judge's decision. The agency shall
submit copies of the decision of the Administrative Judge and the final
agency action to the Compliance Officer at the address set forth below.
The agency is to review the matter giving rise to this complaint, and
designate a high-level official outside the division(s) where CW1, S1,
S2, S3, S4 or TL are employed. This high-level official shall conduct an
inquiry and determine if disciplinary action against CW1 is appropriate.
The agency shall record the nature of any disciplinary action taken,
the basis for the decision to take or not to take such actions, and
report same to the Commission in the same manner as implementation of
the rest of the Commission decision is reported.
The agency shall take corrective, curative and preventive action to
ensure that sexual harassment does not recur, including but not limited
to the following:
Develop, implement and enforce an effective instructive management
plan which will provide practical guidance on the proper action
management officials must follow when presented with complaints of
sexual harassment;<10>
Develop, implement and enforce a plan to effectively ensure the
instructive management plan is followed;<11> and
Develop and implement a plan to effectively notify and provide training
to management officials of their responsibilities under the instructive
management plan.
The agency shall provide a minimum of 40 hours of training to the
responsible official(s), including S1, S2, S3, S4 and TL, at the Internal
Revenue Service, Finance Division, Washington, D.C. facility about the
law against employment discrimination and the proper protocol to follow
when alerted to harassment in the workplace.
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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Compliance of paragraphs 1, 2, 4, 5, and 6 above shall be completed
as follows:
With respect to paragraph 5, above, the agency shall submit to the
compliance officer appropriate documentation evidencing the development,
implementation and enforcement of the instructive management plan as
follows: (a) within 45 days from the date this decision becomes final,
the Commission shall receive documentation showing the development of
an instructive management plan; (b) within 90 days from the date this
decision becomes final, the Commission shall receive documentation of
the implementation and enforcement of such plan; and
With respect to paragraphs 1, 2, 4, and 6, above, the agency shall submit
to the compliance officer appropriate documentation evidencing compliance
within 60 days from the date this decision becomes final.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Finance Division, Washington,
D.C. facility 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 ensure 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).
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
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 Internal Revenue Service, Finance Division, Washington,
D.C. ("Facility"), supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Facility has been found to have discriminated on the basis of
sex when a male co-worker sexually harassed complainant from May,
1992 to July 13, 1993. The Facility has been ordered to: (1) restore
to complainant any sick or annual leave she was compelled to take in
response to the hostile work environment; (2) issue an appropriate
award of compensatory damages, if it is determined that complainant
is so entitled; (3) award reasonable attorney's fees and costs;
(4) designate a high-level official outside the division at issue
to determine if disciplinary action against CW1 is appropriate; (5)
take corrective action in the form of training for the responsible
official(s); and (6) take corrective action in the form of developing,
implementing and enforcing an instructive management plan. The Facility
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 Facility 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: _________________
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.
2 CW2 was a male co-worker of CW1 and complainant. CW1 believed that
complainant had some romantic interest in CW2.
3 In fact the agency never even raised untimeliness as a defense.
4 However, the AJ generally assumed the truth of complainant's
allegations.
5 We do recognize that depending on the demeanor of the witness, the words
"do not recall" could equate to a denial.
6 In fact, the record is replete with corroborating testimony from
unbiased third party witnesses, including those named as responsible
management officials.
7 While the record reveals that TL was not an official supervisor, he
performed many supervisory functions. For example, TL had the ability
to hire and fire people on the IRSU project and he was the individual
who S1 and S4 spoke with when they had concerns about CW1's behavior.
In fact, S1 suggested to complainant that he speak with TL about the
problem with CW1. In addition, the record shows that TL was often
referred to as a supervisor or "boss." Lastly, TL testified that he had
an affirmative duty to inform his own supervisor, S2, of any allegations
of sexual harassment. Accordingly, we find that TL's knowledge of sexual
harassment is sufficient to impute liability to the agency. See Llewellyn
v. Celanese Corp., 693 F. Supp. 369 (W.D.N.C. 1988)(reporting sexual
harassment to dispatchers sufficient notice to employer, since they
were in most frequent contact with the drivers and were responsible for
passing information up the corporate hierarchy to supervisory personnel);
Spain v. Gallegos, 26 F.3d 439 (3rd Cir. 1994) (holding that notice to
"management-level" employees is sufficient notice).
8 S4 testified that complainant did not want to file a formal EEO
complaint. However, while complainant may not have wanted to file a
formal EEO complaint, the record clearly indicates that she repeatedly
notified management officials of the harassment and, accordingly, the
agency had an affirmative duty to take immediate and appropriate action
to do whatever necessary to end the harassment. "The responsibility of
agency management officials to investigate charges of sexual harassment
is independent of the EEO complaint process, and cannot be delegated to an
EEO counselor." Lulverne v. DHHS, Appeal No. 01966875 (October 1, 1998).
9 The Commission has recently become aware of a newly developed IRS
reference guide for managers on the prevention of sexual harassment
which may sufficiently meet our requirements set forth below. However,
as set forth, infra, the Commission requires the agency to provide such
information in its report of compliance, along with proof that such plan
is being effectively implemented and enforced.
10 For example, a possible plan would instruct management officials:
(1) to consult with the EEO office or the Human Resources Office
(i.e., officials properly trained in EEO law and policy) for further
guidance immediately upon receipt of any complaint of harassment
without determining whether such harassment amounts to a violation of
federal law; (2) obtain statements from relevant parties; (3) require
management officials to periodically check with the complaining party
to ensure that the conflict has effectively been resolved; and (4) issue
appropriate disciplinary action toward any individual found engaging in
sexual harassment. See also, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, No. 915.002, June 18,
1999, pp. 15-34.
11 For example, the agency could implement a policy whereby management
is held accountable for any failure to strictly follow the requirements
under the instructive management plan (e.g., the agency could issue
disciplinary action). In addition, adherence to the instructive
management plan could be placed as a criteria in the performance
appraisals of management officials.