01980670
08-28-2000
Linda Lans, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Linda Lans v. Social Security Administration
01980670
August 28, 2000
Linda Lans, )
Complainant, )
) Appeal No. 01980670
v. ) Agency No. SSA47994
) Hearing No. 170-95-8304X
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
)
DECISION
Linda Lans (hereinafter complainant) timely initiated an appeal from a
final agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint of unlawful employment discrimination on the basis of sex
(female)in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405). For the following reasons, the agency's decision is REVERSED
and REMANDED.
ISSUE PRESENTED
The issue on appeal is whether the complainant proved, by a preponderance
of the evidence, that she was sexually harassed when her second-line
supervisor struck her on the buttocks on December 23, 1993, and then said,
�When the cat's away, the mice will play.�
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Social Insurance Representative, GS-105-11 (Claims Representative)
at the agency's Glen Rock, New Jersey Branch Office. Believing she was
the victim of sexual harassment, complainant sought EEO counseling and,
subsequently, filed a formal EEO complaint with the agency on March
16, 1994, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e),
the AJ issued a Recommended Decision (RD) without a hearing, finding no
discrimination.
The AJ concluded that complainant had not established a prima facie case
of sexual harassment because she did not show that a single instance of
being touched on her buttocks by the back of her second-line supervisor's
hand had the effect of unreasonably interfering with her work environment,
or that it was sufficiently pervasive to create an intimidating, hostile,
or offensive work environment.
The AJ went on to find that assuming complainant had established a
prima facie case of sexual harassment, no liability could be attributed
to the agency because �immediate and appropriate corrective action was
taken as soon as the employer was put on notice.� The AJ explained that
there was no evidence that the agency had been placed on notice that the
management official in question had engaged in prior offensive touching
or sexually harassing conduct, and yet had not taken corrective action.
The AJ also noted that when the agency was notified of the situation
at issue, the complainant was detailed, and eventually reassigned, to a
different office. Because complainant had requested a transfer, albeit
to a different office, the AJ found that the agency took appropriate
corrective action and that there was no basis for imputing liability
to the agency. The AJ also reiterated that the alleged harassment was
not sufficiently severe or pervasive to alter the conditions of the
complainant's employment or create an abusive working environment.
The agency's FAD adopted the findings and recommended decision of the AJ.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she did establish a prima facie
case of sexual harassment. Citing to EEOC Policy Guidance on Current
Issues of Sexual Harassment, complainant argues that a single unwelcome,
intentional touching of a charging party's intimate body areas is
sufficiently offensive to create a hostile work environment.
Complainant also argues that the agency did not take immediate and
appropriate corrective action as soon as it was put on notice, noting
that she reported the incident the next work day, but was not transferred
until after she initiated a complaint and the Union filed a grievance.
Complainant also contends that the agency should have restored the
sick leave she used due to her distress over the incident, and that
the agency should have reimbursed her for medical and legal expenses.
Complainant further contends that she has been the victim of �vicious
verbal innuendo� that she caused the alleged harassing manager's death<1>
by filing a fabricated complaint in order to receive a transfer.
The agency stands on the record and requests that the Commission affirm
its FAD.
ANALYSIS AND FINDINGS
Before turning to the allegation at issue in this complaint, we note
that complainant appears to be raising a new allegation on appeal.
Although it is not clear from complainant's appeal brief, it may be that
complainant is alleging that she was retaliated against for filing the
current complaint, in that she was subjected to �vicious verbal innuendo�
that she caused the death of her alleged harasser by filing her complaint.
Complainant is advised that if she wishes to pursue, through the EEO
process, this additional allegation raised for the first time on appeal,
she shall initiate contact with an EEO counselor within fifteen (15)
days afer she receives this decision. The Commission advises the agency
that if complainant seeks EEO counseling regarding the new allegation
within the above fifteen (15) day period, the date complainant filed the
appeal statement in which she raised this allegation with the agency
shall be deemed to be the date of the initial EEO contact, unless she
previously contacted a counselor regarding these matters, in which
case the earlier date would serve as the EEO counselor contact date.
Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998). We note that complainant's reference to this verbal harassment
may be intended only as evidence that the agency did not take immediate
and appropriate corrective action.
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 or 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 McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999); see also 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. See Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002
(March 8, 1994).
The AJ found, and the agency agreed, that complainant failed to establish
a prima facie case of sexual harassment because she did not show that
the single incident of which she complained unreasonably interfered with
her work environment or that it was sufficiently pervasive to create
an intimidating, hostile, or offensive work environment. However, as
complainant correctly notes on appeal, Commission guidance states that:
The Commission will presume that the unwelcome, intentional touching
of a charging party's intimate body areas is sufficiently offensive
to alter the conditions of her working environment and constitute a
violation of Title VII. More so than in the case of verbal advances
or remarks, a single unwelcome physical advance can seriously poison
the victim's working environment. Policy Guidance on Current Issues of
Sexual Harassment, EEOC Notice No. 915-050 at 105 (March 19, 1990).
The guidance goes on to note that when a supervisor sexually touches an
employee, the Commission would normally find a violation and that it is
the employer's burden to demonstrate that the unwelcome conduct was not
sufficiently severe to create a hostile work environment. In the case at
hand, complainant alleged that the Branch Manager of the Glen Rock, New
Jersey Branch Office (hereinafter BM: male), complainant's second-line
supervisor, hit her on the right buttock with the back of his hand
and then said �When the cat's away, the mice will play.� Complainant
testified that she took this statement to either mean that BM could do
such things because no one was around and that there was more to come,
or that because her first-line supervisor was not in the office, BM
could take such actions.
Complainant's allegation is supported by a co-worker (hereinafter CW1:
female). While there is no affidavit from CW1 in the record, CW1 filed
a report with the Glen Rock New Jersey Police Department, stating that
she witnessed BM smack complainant on the right buttock with the back
of his hand. CW1 went on in this report to note that complainant was
shocked and said �You have some nerve� to BM, while he continued to grin.
CW1 confirmed that as she and complainant walked out the door, BM came
out and said �Linda, when the cat is away, the mice will play�, to which
complainant responded �I don't play that much.� This description, along
with a description given to the EEO counselor, mirrors complainant's
description almost to the letter.<2> The agency offered nothing to
demonstrate that this unwelcome conduct was not sufficiently severe to
create a hostile work environment. Accordingly, contrary to the AJ's
finding, complainant has satisfied element (4).<3>
Regarding element (1), complainant has established that she is a member
of a statutorily protected group. With regard to elements (2) and (3),
the Commission finds that the conduct in question occurred and was
related to complainant's gender. First, the record establishes that
the act complained of occurred. Complainant and CW1 provided almost
the exact description of the event and CW1 clearly indicated that she
saw BM smack complainant on the buttocks. Moreover, two co-workers
(hereinafter CW2: male and CW3: female) who were in the elevator with
complainant and CW1 immediately after the incident, testified that both
of them seemed angry and upset. CW2 testified that CW1 told the elevator
occupants that BM smacked complainant on the buttocks and that complainant
might press charges. Neither CW3 nor the other co-worker present on the
elevator at the time (hereinafter CW4: female) remembered CW1 telling
them about this incident, although, as mentioned, CW3 did remember that
complainant and CW1 were upset when they got on the elevator.
Furthermore, the record establishes that complainant reported this
incident to various management personnel the next working day, and
even attempted to contact the Area Director's office the very day of
the incident. Complainant also filed a police report describing the
incident in the same way and accusing complainant of assault, with the
supporting testimony of CW1.<4>
BM testified that he did not smack complainant on the buttocks and that
she did not say �You have some nerve� as she walked out. He acknowledged
that he did use the phrase �When the cat is away, the mice will play� on
a frequent basis and had used it earlier that day when he was addressing
his staff. He indicated that he meant this as a warning that they should
not give the first-line supervisor a hard time when BM was on vacation and
that he never made this statement to complainant directly. He testified
that he was found not guilty of touching complainant's buttocks by the
Glen Rock Municipal Court.
In describing the incident at issue, BM testified that on the day in
question, materials from the Christmas party were partially blocking the
aisle in which he was standing to say good-bye to employees. BM noted
the possibility that, due to the narrow aisle, complainant brushed
up against him as she walked by, although he had no recollection of
this occurring. He indicated that he believed CW2 was in the room at
the time of the alleged incident and that CW2 testified that he did
not recall having heard or seen the incident described by complainant.
However, we note that CW2 indicated in his affidavit that he left the room
before complainant and CW1, making his failure to witness the incident
irrelevant. BM testified that he believed complainant was making up the
incident in order to get a transfer which she had been previously denied.
Given that CW1 completely supported complainant's description of the
alleged incident, that other co-workers testified to the fact that
complainant was very upset immediately after the alleged incident,
and that complainant immediately related her story to several people,
including management officials and the police department, we find BM's
unsupported denial to be unpersuasive. See Henson, 682 F.2d at 912,
n. 25 (�In a case of alleged sexual harassment which involves close
questions of credibility and subjective interpretation, the existence
of corroborative evidence or the lack thereof is likely to be crucial�);
see also, EEOC Policy Guidance on Sexual Harassment at 100.
Furthermore, in order to believe that complainant made up the incident to
get a transfer, we would have to believe she conspired with CW1 towards
this end, that the two of them talked it over in advance in order to
appear upset in front of co-workers at a specific moment, and that CW1
agreed to make a false statement to police and co-workers in support
of complainant. Although the record establishes that complainant had
asked for a transfer to a certain branch office and that her transfer was
denied, that fact by itself does not establish that a conspiracy existed
between complainant and CW1 to force the agency to give complainant a
transfer by accusing a management official of harassment. We therefore
find that, more likely than not, the incident in question did occur.
Moreover, we find that BM's action was unwelcome. There is no evidence
that complainant solicited or incited BM's action and there is ample
evidence that she regarded the conduct as undesirable and offensive.
See Henson, 682 F.2d at 903. While there is some testimony that
earlier that day complainant and BM had exchanged a good-bye hug, it
is clear that such embraces were being exchanged by many on that day,
and such an embrace does not establish that complainant solicited a
smack on the buttocks. Moreover, her visible dismay to which several
co-workers testified, along with her immediate complaints to management
and the police, indicate that she regarded the conduct as offensive.
See EEOC Policy Guidance on Sexual Harassment at 95.
Finally, turning to element (5), BM was the Branch Manager of
complainant's facility and clearly had authority over her. We therefore
find that a basis exists under which liability for BM's harassment could
potentially be imputed to the agency. See EEOC Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors,
N-915-002 at 4 (June 18, 1999). We therefore find that the AJ's
recommendation that a finding of no discrimination be rendered due
to complainant's failure to establish a prima facie case is clearly
erroneous and that complainant has established that she was subjected
to sexual harassment.
Liability
At the time of the AJ's recommended decision, the law of the land
was that an agency could avoid liability for the harassing conduct of
its supervisors by showing that immediate and appropriate corrective
action was taken as soon as the employer was put on notice and/or that
there was no basis for imputing liability to the employer under agency
principles. See Lulverne v. Department of Health and Human Services,
EEOC Appeal No. 01966875 (October 1, 1998). However, in 1998, the
Supreme Court issued two decisions which altered the law in this area.
In Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998),
and Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998), the Supreme
Court held that if a supervisor's harassment does not culminate in a
tangible employment action, the employer may be able to avoid liability
or limit damages by establishing an affirmative defense that includes
two necessary elements: (1) the employer exercised reasonable care to
prevent and correct promptly any harassing behavior, and (2) the employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.
See also EEOC Enforcement Guidance: Vicarious Employer Liability at 12.
In the case at hand, the agency is unable to avoid liability on either
of these grounds. First, the agency cannot establish that complainant
�unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to otherwise avoid the harm.�
Id. Complainant noted an earlier incident wherein BM hit her on her �left
flank� when she asked him what a �flank� was. Complainant testified that
this made her feel uncomfortable and that she resolved not to ask him a
question like that again, but noted that she did not say anything about
it to anyone other than CW1. While it is possible that if complainant
had complained about this incident when it occurred, the agency would
have acted to prevent BM from physically touching his employees in the
future, Commission guidance indicates that whether a failure to complain
was unreasonable depends on the information available to the employee at
that time. Id at 30. It is reasonable to believe that while the �flank�
incident made complainant uncomfortable, she felt that because she asked
BM what a �flank� was, his physical demonstration was not harassment.
Moreover, Commission guidance also points out that it is the employer
who bears the burden of proving that complainant unreasonably failed
to complain or avoid harm. Id at 31. Given the circumstances of the
�flank� incident and the fact that immediately after the incident in
question in this decision, complainant told her first-line supervisor
about the event and contacted the Area Director's office, as well as
Federal Protective Services, we find that the agency cannot establish
that complainant unreasonably failed to avoid harm at the hands of BM.
Because we have determined that the agency is unable to establish the
second prong of the affirmative defense, we need not discuss whether
the agency established the first prong of this defense, i.e., whether
the agency exercised reasonable care to prevent and correct promptly any
harassing behavior. As noted above, in order to successfully establish an
affirmative defense to avoid liability or limit damages in a harassment
case of this sort, the agency must prove both prongs of the affirmative
defense outlined in Ellerth and Faragher. See EEOC Enforcement Guidance:
Vicarious Employer Liability at 12. We therefore find that the agency
has not established an affirmative defense and cannot avoid liability
for BM's harassing conduct.
Relief Requested
As part of her relief, complainant requested that she be transferred
to the Nanuet, New York office. Soon after complainant reported the
harassment to management officials, the agency transferred her, although
not to the office which she requested. Instead, to �properly defuse� the
matter, complainant was transferred to the Patterson District Office.
The Commission has ruled that the victim of harassment should not be
required to take an involuntary transfer or reassignment, but rather, the
individual found to have committed the prohibited harassment must bear any
derogatory effects of providing the victim with full relief. See Monroe
v. Department of the Navy, EEOC Request No. 05910382 (June 27, 1991);
Taylor v. Department of the Air Force, EEOC Request No. 05920194 (July
8, 1992). It is unclear, given that complainant requested a transfer to a
specific office, whether the transfer to a different office was voluntary.
While a victim of harassment is not entitled to a transfer to the office
of her choice, she should not be transferred if she does not wish to be.
As such, we find that complainant should be offered a transfer back to
the Glen Rock, New Jersey Branch Office, as outlined in the ORDER below.
We note that the record reveals that the harasser has since passed away.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, and arguments and evidence not discussed in this
decision, the Commission REVERSES the FAD and REMANDS the matter for
remedial action in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall take appropriate corrective, curative, and
preventative steps to ensure that no employee is subjected to sexual
harassment, to ensure that appropriate steps are taken immediately after
management is notified of any such harassment, and to ensure the existence
and dissemination of an anti-harassment policy and complaint procedure.
2. The agency shall offer complainant a transfer to the Glen Rock,
New Jersey Branch office, if complainant so requests within sixty (60)
days from the date this decision becomes final. If complainant does
make such a request, the transfer shall be accomplished within thirty
(30) days from the date of the request.
3. Within thirty (30) days from the date this decision becomes final,
the agency shall compute the amount of leave taken by complainant in
response to the sexual harassment and restore that leave. The complainant
shall cooperate in the agency's efforts to compute the amount of leave,
and shall provide all relevant information requested by the agency.
4. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Philadelphia, Pennsylvania
District 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.
5. 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Glen Rock, New Jersey 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:
August 28, 2000
_______________ ___________________________________
DATE Carlton Hadden, 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 this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date __________________________
Equal Employment Assistant
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 Social Security
Administration, Region II, Department of Health and Human Services,
Glen Rock, New Jersey Branch Office (hereinafter �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 on the basis of sex when
a male supervisor sexually harassed a female employee on December 23,
1993. The agency was ordered to (1) offer complainant a transfer back
to the Glen Rock, New Jersey Branch Office; (2) issue an appropriate
award of compensatory damages, if it is determined that complainant is
entitled; (3) restore leave to complainant, if it is determined that
she is entitled; (4) award reasonable attorney's fees; and (5) take
corrective, curative and preventative action to ensure no employee is
subjected to sexual harassment, to ensure that appropriate steps are
taken immediately after management is notified of any such harassment,
and to ensure the existence and dissemination of an anti-harassment
policy and complaint procedure.
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 16141 Complainant's appeal brief indicates that the
supervisor had a brain tumor.
2 In the Counselor's report, CW1 is reported to have said that
complainant said �How dare you?� rather than �You have some nerve�,
but the descriptions are otherwise the same.
3 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. This new standard of review does not apply to the case
at hand, however, given that no hearing was held. The AJ's findings
are therefore subject to de novo review.
4 Both complainant and BM indicate that BM was found not guilty of
simple assault, although there is some contention about the details of
this verdict.