0520180255
05-23-2018
Margaret M.,1 Complainant, v. Robert L. Wilkie, Jr., Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Margaret M.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180255
Appeal No. 0120151790
Agency No. 200307852013104323
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120151790 (January 11, 2018). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant was a Sales Clerk, VC-2091-02, under a temporary appointment at the Agency's Veterans' Canteen Service in St. Louis, Missouri. Her tenure began in April 2013, and was due to terminate on September 8, 2013.
Complainant filed an EEO complaint alleging that she was discriminated against on the bases of race (African American) sex (female), and reprisal when: (1) between April and August 2013, she was subjected to sexual harassment by a co-worker; (2) on August 22, 2013, she learned that the Agency intended to terminate her employment effective September 7, 2013; and (3) between April and August 2013, she was subjected to a hostile work environment by management officials.2
The decision in EEOC Appeal No. 0120151790 affirmed the Agency's final decision regarding the decision to terminate Complainant's employment, finding it was legitimate to do so at the end of her temporary appointment, especially as she had a demonstrated pattern of tardiness. Further, the evidence established that the Agency had initiated the process for terminating Complainant's employment before it learned of her allegations of sexual harassment. For the same reasons, the decision further affirmed the Agency's conclusion that Complainant had not established she was subjected to a discriminatory hostile work environment as a result of the termination decision.
With regard to the sexual harassment claim (claim 1 and parts of claim 3), the decision noted that the Agency had essentially conceded that Complainant was subjected to sexual harassment by the coworker. However, the decision rejected the Agency's position that it was not liable for the coworker's actions because it took prompt and effective action as soon as it learned of the harassment. The decision noted that the co-worker was not disciplined, and rather than reassigning the co-worker, the Agency put Complainant on administrative leave. The decision noted that reassigning the person targeted for harassment is not appropriate corrective action.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision. The Agency essentially again argues that it should avoid liability for the coworker's actions because it believes it took appropriate corrective action as soon as management learned of harassment. The Agency asserts that in mid-August 2013, when it learned of the harassment, management placed Complainant on paid administrative leave. It also claims that it offered to extend Complainant's appointment provided she accept a transfer. Finally, the Agency argues it orally admonished the coworker, putting him on notice that his behavior was inappropriate.
However, we conclude that the Agency's arguments fail to meet the criteria for reconsideration of our prior decision. The Agency admits that it placed Complainant on forced administrative leave rather than removing the perpetrator of the harassment from the workplace. We note that at the time this occurred, Complainant's termination had not yet gone into effect and she was entitled to work for at least another three weeks. As we decided previously, while it was best to separate these two employees, the burden of having to relocate or go on leave should have been placed on the perpetrator of the harassment and not the victim. Further, the Agency also concedes that the only action taken against the perpetrator was a verbal counseling. We affirm our prior decision that this was insufficient in light of the serious nature of the sexual harassment allegations, which included numerous incidents of squeezing Complainant's breasts and buttocks, attempting to pull her pants down, as well as making obscene gestures and remarks. Moreover, during the management investigation into Complainant's allegations, another female employee indicated that she had also been subjected to similar harassment. Under these circumstances, more significant actions should have been taken against the perpetrator to ensure the workplace remained free of harassment. The Agency's argument that Complainant did not complain of continuing harassment after the perpetrator received the oral counseling is misplaced as Complainant was placed on administrative leave until her termination so there was no real opportunity to judge the efficacy of the actions taken.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120151790 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
To the extent it has not already done so, the Agency is required to take the following remedial actions:
1. Within thirty (30) days of the date of this decision, the Agency shall give Complainant notice of her right to submit evidence (pursuant to the guidance given in Carle v. Dept. of the Navy, EEOC Appeal 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall issue a final decision on compensatory damages pursuant to 29 C.F.R. � 1614.110(b), and shall pay any awarded compensatory damages thirty (30) days from the date of that determination.
2. Within ninety (90) days from the date this decision is issued, the Agency shall conduct a minimum of eight (8) hours of in-person or interactive training for the responsible management officials involved in this case regarding their obligations under Title VII with special emphasis on management responsibilities with regard to claims of sexual harassment/hostile work environment.
3. Within sixty (60) days from the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth its reason(s) for its decision not to impose discipline. Training is not considered discipline.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must 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.
POSTING ORDER (G0617)
The Agency is ordered to post at its Veterans Canteen Services facility in St. Louis, Missouri facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 23, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant alleged that the hostile work environment consisted of the decision to terminate her employment (issue 2), management's failure to effectively address the coworker's sexual harassment (issue 1), and an allegation that a management official told various staff members not to speak to Complainant.
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