Michelle D. Mayer, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 15, 2009
0120071846 (E.E.O.C. May. 15, 2009)

0120071846

05-15-2009

Michelle D. Mayer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Michelle D. Mayer,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120071846

Hearing No. 120200500163X

Agency No. HS03TSA001181

DECISION

On March 2, 2007, complainant filed an appeal from the agency's February

1, 2007 final order 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission REVERSES the agency's final

order.

BACKGROUND

At the time of her complaint, complainant was employed by the agency

as a Transportation Security Screener at the Newport News-Williamsburg

International Airport in Newport News, Virginia. In her formal EEO

complaint, dated May 5, 2003, complainant alleges that she was subjected

to discriminatory harassment on the bases of sex (female) and in reprisal

for prior protected EEO activity when from December 4, 2002, to March 24,

2003:

1. A co-worker gave her a letter which stated in part, "As I watch you

move from station to station, your smile shines like a missing star

from the Heavens," which made her feel uncomfortable and threatened,

and management failed to respond;

2. Her supervisor (S1) stated that a pizza she was eating would put

dimples on her buttocks;

3. S1 leered at her and stated that she would look good in a tight cat

suit and heels;

4. S1 placed one of his boots between a female co-worker's legs and made

sexually explicit comments while moving his foot around;

5. S1 stated that he would approve her request for leave if she kissed

him;

6. S1 put his hands inside the waistband of complainant's pants and

pulled her underwear up her buttocks;

7. S1 asked her to lift her pant leg and made explicit comments about her

legs and genital area, including insisting that she waxes her pubic area;

8. S1 made an oral sex gesture while kissing his lips at her;

9. S1 initiated an erotic dance while touching his genitals and

encouraging her to touch his genitals;

10. S1 touched her buttocks;

11. She was given the wrong telephone numbers by management officials

when she asked for the agency's Office of Civil Rights;

12. She was intimidated by a co-worker for reporting an incident; and

13. She was ostracized by co-workers and management kept her separate

from her co-workers after she complained about the harassment.

The record suggests that S1 was notorious among employees for sexual

harassment. Complainant stated that after March 22, 2003, complainant

"had all of [S1's] actions that [she] could take" and that she was

afraid to file a complaint because of reprisal. The only incident

that complainant reported to management was the letter she received

from a co-worker. Complainant asserts that management officials did

not respond to this incident, and told her that the co-worker acted like

that with all women.

On March 28, 2003, complainant did not show up for work as scheduled

because of S1's harassment. She was subsequently subjected to discipline

for the absence. On April 2, 2003, complainant's father contacted the

Deputy Federal Security Director (DFSD) and complained that it was not

fair that his daughter was being disciplined for missing work when she

was a victim of sexual harassment. The DFSD told complainant's father

to have complainant call him immediately. When complainant did not call

him, the DFSD called her supervisor and told him to have complainant meet

with the Human Resources Manager (HRM). Following the meeting with the

HRM, S1 was transferred to Norfolk while the matter was investigated.

S1 subsequently resigned from his position on April 8, 2003.

After complainant met with the HRM, she alleges that she was ostracized

and denigrated by her co-workers for filing the complaint. Complainant

alleges that she was denied work assistance by management, her co-workers

stopped talking to her, and she was subjected to her co-workers making

jokes about sexual harassment complaints whenever complainant was in

their presence. Complainant alleges that the retaliation got so bad that

she was forced to take time off work until she could be transferred to

a different airport.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. When the complainant did not object, the AJ

assigned to the case granted the agency's Motion for a Decision Without

a Hearing and issued a decision without a hearing on December 20, 2006.

The AJ found that complainant failed to establish that liability for

S1's harassment should be imputed to the agency because complainant

failed to report S1's harassment to other management officials.

Further, the AJ found that complainant failed to establish that she

engaged in prior protected activity, therefore no reprisal existed.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged. Complainant now appeals to the Commission.

CONTENTIONS ON APPEAL

On appeal, complainant asserts that the AJ's issuance of a decision

without a hearing was inappropriate because genuine issues of material

fact are in dispute. Specifically, complainant alleges that she

was subjected to harassment based on sex and in reprisal for prior

protected EEO activity, and liability should be imputed to the agency.

The agency does not dispute that complainant was subjected to sexual

harassment by S1. The agency asserts that the Commission should uphold

the AJ's finding that liability cannot be imputed to the agency for S1's

sexual harassment because complainant did not report the harassment to

management officials and, when it was ultimately reported, the agency

acted immediately. Additionally, the agency asserts that the Commission

should also uphold the AJ's finding that complainant was not subjected to

retaliation because she failed to engage in prior protected EEO activity.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id., at Chapter 9,

� VI.A. (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").

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. The Commission's

regulations allow an AJ to issue a decision without a hearing when

he or she finds that there is no genuine issue of material fact.

29 C.F.R. � 1614.109(g). This regulation is patterned after the summary

judgment procedure set forth in Rule 56 of the Federal Rules of Civil

Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

After a careful review of the record, we find that summary judgment

was appropriate because no genuine dispute of material fact exists.

However, we find that the AJ erred in finding in favor of the agency, as

the record reflects that complainant was subjected to sexual harassment

and a hostile work environment, and liability can be imputed to the

agency as discussed below.

Agency Liability for Supervisor Harassment

We first note that the agency does not contest that complainant was

subjected to sexual harassment and a hostile work environment; the

agency only contests that it is not liable for the harassment because

complainant failed to report it to management officials. In the context

of supervisory liability, employers are subject to vicarious liability for

unlawful harassment by supervisors. Farragher v. City of Boca Raton, 524

U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998).

The standard of liability set forth in these decisions is premised

on two principles: (1) an employer is responsible for the acts of its

supervisors, and (2) employers should be encouraged to avoid or limit

the harm from harassment. In order to accommodate these principles,

the Court held that an employer is always liable for a supervisor's

harassment if it culminates in a tangible employment action.

In a case where harassment does not result in a tangible employment

action, the employer may prove an affirmative defense comprised of

two elements: (1) that the employer exercised reasonable care to

prevent and correct promptly any harassing behavior, and (2) that

the plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to

avoid harm otherwise. Ellerth, supra; Faragher, supra. Further, if the

harassment is pervasive, it could result in a finding that the agency

had constructive knowledge of the harassment. See Padilla v. United

States Postal Service, EEOC Appeal No. 0120063761 (April 8, 2008)

(supervisor's harassment was so pervasive that the agency should have

had constructive knowledge of the harassment).

Here, while the agency denies that management officials had any knowledge

of the harassment, the record establishes that management was aware

of some of the harassment. For example, complainant reported the

romantic letter from a co-worker to three management officials, all

of whom ignored her complaint. Further, another manager witnessed S1

making oral sex motions with his hand and mouth towards complainant.

Complainant asserts that the other manager just shook his head at S1 and

took no action. Further, another manager stated in his affidavit that

complainant mentioned the harassment to him in a casual conversation,

and he considered it only hearsay. We find that management officials

were aware that complainant felt that she was being sexually harassed.

Further, the harassment was pervasive, often occurred in front of

co-workers, and permeated the workplace. For example, while speaking

to complainant and a female co-worker, S1 put his foot between the legs

of a female co-worker and moved his foot around while making sexually

explicit comments. Further, S1 reached into complainant's waistband

and pulled her underwear up her buttocks in front of her co-workers.

S1 asked complainant if she waxed her pubic area in front of her

co-workers. S1 attempted to give complainant a lap dance and asked

her to touch his genitals in front of her co-workers. Additionally,

S1 touched complainant's buttocks while she was talking to a co-worker.

We find that these acts were pervasive. Additionally, we find the agency

had constructive knowledge that the sexual harassment was taking place.

The record establishes that employees were aware that S1 was sexually

harassing complainant, and therefore, management knew or should have

known of the harassment as well.

Next, the agency contends that when it was made aware of the harassment,

it acted immediately to end the harassment. When an employer becomes

aware of alleged harassment, it has the duty to investigate the charges

promptly and thoroughly. See Rodriguez v. Department of Veterans

Affairs, EEOC Appeal No. 01953850 (August 29, 1996). By "thoroughly"

the Commission means "effectively," taking whatever action necessary to

end the harassment and prevent the misconduct from recurring. See Voigt

v. United States Postal Serv., EEOC Appeal No. 01931799 (Dec. 20, 1994).

We find that the agency failed to take prompt and effective action after

it was aware that complainant was harassed. For example, when complainant

reported the letter she received from her co-worker, management officials

failed to take action. Additionally, when a management official observed

S1 make a gesture towards complainant that indicated oral sex, the

management official merely shook his head and failed to take any action.

The record establishes that the agency clearly failed to address the

harassment; therefore it is liable for the harassment.

Retaliation

Complainant alleges that she was retaliated against after she reported

S1's harassment to the HRM. Complainant alleges that management officials

purposely gave her numerous wrong numbers for the agency's Office of

Civil Rights in an attempt to deter her from pursuing the EEO process.

Further, complainant asserts that once it became known that she complained

about S1's harassment, she was subsequently subjected to retaliation

by management officials who kept her separated from her co-workers,

and co-workers ostracized her, refused to talk to her, and made jokes

in her presence about people filing sexual harassment complaints.

Complainant further alleges that the retaliation become so severe that

she had to take leave until a hardship transfer to Logan International

Airport in Boston was processed.

We find that the record is inadequate to make a determination on

this claim. Specifically, the investigator's questions regarding

retaliation were vague, and the record does not contain specific

information identifying the responsible co-workers and management

officials, or the responses to these allegations from the responsible

management officials and responsible co-workers. Therefore, a hearing

is necessary to adjudicate complainant's retaliation claim.1

CONCLUSION

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission REVERSES the

agency's final decision, REMANDS complainant's retaliation claim for a

hearing, and orders the agency to comply with the Order below.

ORDER

There agency is hereby ORDERED to take the following remedial action:

1. The agency shall immediately cease and desist from all discriminatory

conduct directed at complainant and members of her protected class,

and ensure that complainant is no longer subjected to a hostile work

environment. Additionally, the agency shall ensure that complainant

is not subjected to retaliation for her participation in protected EEO

activity. Further, the agency shall ensure that others at the facility

are not subjected to sexual harassment and/or retaliation.

2. Within sixty (60) calendar days from the date this decision becomes

final, the agency will conduct and complete a supplemental investigation

on the issue of complainant's entitlement to compensatory damages for

her harassment claim, and will afford her an opportunity to establish a

causal relationship between the harassment she was subjected to and the

pecuniary or non-pecuniary losses, if any. Complainant will cooperate

in the agency's efforts to compute the amount of compensatory damages,

and will provide all relevant information requested by the agency.

The agency will issue a final decision on the issue of compensatory

damages. 29 C.F.R. � 1614.1.10. A copy of the final decision must be

submitted to the Compliance Officer, as referenced below.

3. Within sixty (60) calendar days from the date this decision becomes

final, the agency shall award complainant reasonable attorney's fees

and costs for her harassment claim, as described below.

4. Within sixty (60) calendar days from the date this decision becomes

final, the agency shall provide sixteen (16) hours of EEO training to

all management officials at this facility.

5. Within thirty (30) calendar days from the date this decision becomes

final, the agency shall consider taking disciplinary action against S1

and all of the managers who had actual or constructive knowledge of the

harassment and failed to take prompt and effective action. The agency

does not consider training to be disciplinary action. 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 the reason(s) for its decision not to impose discipline. If any

of the responsible management officials have left the agency's employ,

the agency shall furnish documentation of their departure date(s).

6. With regard to complainant's claim of retaliation, the agency

is ordered to remand the instant complaint to the Hearings Unit of

the appropriate EEOC Field Office for scheduling of a hearing in an

expeditious manner. The case should be assigned for an administrative

hearing before a different EEOC AJ than the AJ who issued the summary

judgment decision addressed herein. The agency shall submit to the Hearing

Unit of the appropriate EEOC Field Office the request for a hearing

within fifteen (15) calendar days of the date this decision becomes

final. The agency is directed to submit a copy of the complaint file to

the EEOC Hearing Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.110.

The agency is further directed to submit a report of compliance, as

provided in the statement "Implementation of the Commission's Decision."

The report shall include supporting documentation verifying that the

corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Newport News-Williamsburg

International Airport in Newport News, Virginia 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.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this

decision becoming final. 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 (K1208)

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 77960, Washington,

DC 20013. 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 tends 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 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 77960,

Washington, DC 20013. 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 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 15, 2009

Date

1 We note that because complainant's retaliation claim and harassment

claim are not inextricably intertwined, remanding only the retaliation

claim for a hearing will not result in harmful fragmentation.

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0120071846

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120071846