0120161189
03-09-2018
Matilde H.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matilde H.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161189
Agency No. 200I-0521-2015102310
DECISION
On February 17, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 28, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to sexual harassment in connection with the conduct of her co-worker on February 7, 2015.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide, WG-3566-03, at the Agency's Environmental Management Service (EMS), VA Medical Center in Birmingham, Alabama. Complainant asserted that, on the date at issue, a coworker (CW) slapped her on the buttocks. Complainant expressed her shock and that the contact was unwelcome, stating, "I know you did not place your hands on me!" CW averred that he gently touched Complainant, was joking and being playful, and that he and Complainant were friends. Thereafter, on February 10, 2015, Complainant reported the incident to management.
Complainant's third-level supervisor (S3) immediately investigated the matter, whereupon CW admitted that he did, in fact, touch Complainant in an unwelcome manner. CW stated that, when he realized Complainant was not amused by his actions, he immediately apologized to Complainant. CW further expressed his remorse and declared to S3 that he would never again engage in such behavior. The Agency proposed a one-day suspension of CW, which was downgraded to a written reprimand because CW had never previously had a conduct-related offense. Management also required that CW, his first-level supervisor and S3 attend anti-harassment training given by the facility's EEO Manager. In particular, CW was given one-on-one training by the EEO Manager and a copy of the Agency's anti-harassment policy.
On May 6, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) as a result of the incident which took place on February 7, 2015. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted no contentions on appeal. The Agency reiterated the position set forth in its Final Decision: that it took immediate and effective remedial action against the responsible individual by reprimanding him and requiring anti-harassment training.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a prima facie case of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct; (3) that the conduct complained of was based on her sex; (4) that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982).
In the instant matter, the Agency concedes that Complainant established the first four elements of a prima facie case of sexual harassment. First, she is a member of the statutorily protected class. Notwithstanding CW's characterization of the touching as a friendly gesture, Complainant made it clear that the conduct was not welcome. Additionally, the fact that the contact was made to her buttocks is sufficient to support an inference that the harassment was based on her sex. With respect to CW's single action creating an intimidating, hostile, or offensive work environment, "[m]ore so than in the case of verbal advances or remarks, a single unwelcome physical advance can seriously poison the victim's working environment." See EEOC Policy Guidance on Current Issues in Sexual Harassment, N-915-050 (Mar. 19, 1990).
The inquiry here is focused on the fifth prong of the prima facie case: whether the Agency is liable for CW's actions. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. �1604.11(d); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dept. Of Air Force, EEOC Request No. 05920194 (July 8, 1992). However, when an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. Policy Guidance on Current Issues of Sexual Harassment, supra. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Id. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. Id.
The record reveals that, as soon as the Complainant notified the Agency, her claim was immediately investigated and the responsible individual was reprimanded and required to take anti-harassment training. Complainant's immediate supervisory chain was required to take anti-harassment training, as well. Moreover, there is no showing that CW's inappropriate conduct persisted beyond the isolated incident at issue. Upon review, we find the that the Agency is not liable for the harassment because it took prompt and appropriate corrective action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
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
__3/9/18________________
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.
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