01984101
09-12-2000
Larry Wild, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Investigative Service), Agency.
Larry Wild v. Department of Defense
01984101
September 12, 2000
Larry Wild, )
Complainant, )
)
v. ) Appeal No. 01984101
) Agency No. DIS-96-039-53-S
William S. Cohen, ) Hearing No. 370-97-X2567
Secretary, )
Department of Defense )
(Defense Investigative Service), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final agency
decision (FAD) concerning his equal employment opportunity (EEO) complaint
of unlawful employment discrimination on the basis of sex (male) in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated
against when he was sexually harassed by his second level supervisor.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission REVERSES the agency's final decision.
BACKGROUND
The record reveals that during the relevant time period complainant
was employed as an Investigator at the agency's Monterey, California
facility. According to complainant, beginning in 1992, his second level
supervisor (S1), a woman, spoke to and acted toward him in a manner he
regarded as sexually harassing. Believing himself to be a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on April 12, 1996. The agency accepted the
complaint for investigation. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ).
At the hearing, witnesses called on complainant's behalf testified
in detail concerning S1's actions and comments of a sexual nature.
These were summarized by the AJ as follows:
[F]requently using �locker room� talk, profanity, including the word
[f�] and other gross conduct; telling jokes of a sexual nature and making
reference to penis size in these jokes or general conversation; commenting
on her menstrual period and her lack of an active sex life; occasionally
touching the complainant on the shoulder or upper arm; using Post-it
notes imprinted with the comment: �men have two faults - - everything
they say and everything they do;� and placing the letters �SWAWT�
(sealed with a wet tongue) on several envelopes to the complainant.
Recommended Decision, hearing transcript at 599-600.
Following the hearing, the AJ issued a recommended decision finding no
discrimination. The AJ based this conclusion on two alternative grounds:
1) that complainant had not established a prima facie case of sexual
harassment because he failed to demonstrate that the harassing behavior
was directed against him because of his sex; and 2) that complainant had
not proven that the harassment was so severe or pervasive as to alter
the conditions of complainant's employment.
The agency's FAD implemented the AJ's recommended decision. From the FAD,
complainant brings the instant appeal.
LEGAL STANDARD
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 Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). Legal conclusions reached by an AJ are
subject to de novo review by the Commission. Hayes v. United States
Postal Service, EEOC Appeal No. 01A00612 (May 16, 2000).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc. EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. Harassment is actionable only if the harassment
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
To establish a prima facie case of sexual harassment a complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to unwelcome conduct related to his 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 his
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 McCleod v. Social Security Administration, EEOC Appeal No.
01963810 (August 5, 1999) (citing 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).
ANALYSIS AND FINDINGS
Sexual Harassment
After a careful review of the record, the Commission finds that the
AJ erred in reaching the conclusion that complainant had not been
subjected to sexual harassment. The AJ's first alternative ground for
decision, i.e., that S1's objectionable behavior was not directed at
complainant because of his sex, is obviously incorrect. It is clear
beyond peradventure that S1's repeated deprecating references to the
size of complainant's penis were directed at complainant because he is
a man. Similarly, S1's use of a Post-it note imprinted with the sentiment
�men have two faults - - everything they say and everything they do� is
unquestionably directed against complainant's protected group, men.
In any event, the law does not require complainant to demonstrate that his
supervisor's behavior was directed only at men in order to prove his case.
The AJ was apparently of the view that S1's conduct could not be found
to be harassment in violation of Title VII if she was shown to have
subjected both males and females to her inappropriate sexual conduct.
Although there is authority for that view<2>, neither the Supreme Court
nor this Commission has endorsed it.<3> The fact that S1 may have been,
in some respects, an �equal opportunity harasser� would not immunize
her behavior.
We also find that the AJ's second alternative ground for decision,
i.e. that the harassment was not severe or pervasive, is incorrect.
The evidence, including testimony at the hearing and the agency's own
report of investigation, showed, and the AJ found, that S1 �told jokes
of a sexual nature, and made other sexually explicit statements.� Those
statements included repeated crude and inappropriate references to
men's penises. The first involved S1 expounding in detail on a theory
that a the size of a man's penis could be determined by measuring part
of his hand and then actually measuring the hands of several of her male
subordinates. Complainant, who was present, declined to participate.
Another time, after the penis measuring incident, S1 began an evaluation
of complainant's work performance by pointing at his crotch and saying
they would discuss his �shortcomings.� S1 also referred to a person
with the surname Dick and asked complainant what he had in common with
that person.
S1 also frequently used sexually offensive profanity and told sex-related
jokes in the workplace. S1 regularly referred to her own sex life and on
several occasions she made sexually suggestive pelvic thrusting motions.
The AJ concluded without discussion that these incidents �clearly� were
not severe. Separately, the AJ found that considering the number of
incidents and the span of time involved, the harassing behavior was
not pervasive. The question of whether allegedly harassing behavior
was �severe or pervasive� is a legal conclusion which we review
de novo. Hartsell v. Duplex Products, Inc., 123 F.3d 766, 773 (4th
Cir. 1997)(finding as a matter of law that offensive behavior was
not so �severe or pervasive as to render the workplace objectively
hostile or abusive.�); Fuller v. City of Oakland, 47 F.3d 1522, 1527
(9th Cir. 1995)(�underlying factual findings regarding the sexual
harassment claim are reviewed only for clear error . . .. However,
whether the conduct found was sufficiently severe and pervasive to
constitute sexual harassment is a question of law reviewed de novo.�)
We conclude that S1's behavior as alleged and proven by complainant was
severe and pervasive enough to alter the conditions of the complainant's
employment.<4> In particular, S1's humiliating reference to complainant's
penis in the context of an official performance review was absolutely
unacceptable. This incident, combined with S1's regular use of sexual
profanity, sexual humor, and demeaning, sexist references to men as
a group, constitutes a sufficient factual basis for us to find that
complainant was the victim of sexual harassment. White v. Department
of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997); Marr
v. Department of the Air Force, EEOC Appeal No. 01941344 (June 27,
1996).<5>
Vicarious Liability
The agency will be exposed to vicarious liability for sexual harassment,
where, as here, the harassment was "created by a supervisor with immediate
... authority over the [complainant]." Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002
(June 18, 1999)(�Vicarious Liability Guidance�), at 4 (citing Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93
(1998)).
However, where, as here, the harassment does not result in a tangible
employment action being taken against the employee, the agency can
make out an affirmative defense 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.
Whether an employer can prove 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 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.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we REVERSE the agency's final decision.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall post a notice, as provided below.
2. The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the San Francisco district office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be
codified at 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 Administrative Judge's decision and the final agency action to the
Compliance Officer at the address set forth below.
3. The agency shall provide training in the obligations and duties
imposed by Title VII to all managers and supervisors at the facility in
Monterey, California; and in the event that the S1 remains an employee
of the agency, the agency shall provide her a minimum of sixteen (16)
hours of EEO sensitivity training with respect to Title VII.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Monterey, California 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
September 12, 2000
Date Frances M. Hart, Executive Officer
Executive Secretariat
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 the Defense Investigative Service
in Monterey, California (the 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 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 was found to have discriminated against an employee when that
employee was sexually harassed by a supervisor. The agency has already
reprimanded the harasser and transferred her away from the facility.
The agency has been ordered to: (1) determine whether complainant
is entitled to an award of compensatory damages; (2) award reasonable
attorney's fees, if applicable; and (3) post this notice.
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: ________
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.
2 Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000); Rabidue v. Osceola
Refing Co., 805 F.2d 611 (6th Cir. 1986), cert denied, 481 U.S. 1041
(1987).
3See EEOC Policy Guidance on Current Issues of Sexual Harassment (March
19, 1990) at 9, criticizing majority opinion in Rabidue, supra.
4In this connection we note that the agency itself regarded S1's
misconduct as sufficiently serious to warrant discipline. It reprimanded
her and transferred her to another facility.
5In her Recommended Decision the AJ speculates (but does not specifically
find) that complainant may not have found S1's sexual behavior to
have been unwelcome. The record shows, however, that early on in S1's
tenure as his supervisor complainant protested the sexual nature of S1's
language.