07a60057_r
05-09-2006
Michelle Wade, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Michelle Wade v. Department of Justice
07A60057
May 9, 2006
.
Michelle Wade,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A60057
Agency No. P2003-0062
Hearing No. 240-2004-00021X
DECISION
Concurrent with its October 29, 2004 final order, the agency filed
a timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405.
Complainant, a Health Technician employed at the agency's Bureau of
Prisons, Federal Medical Center, Lexington, Kentucky facility, filed
a formal EEO complaint on November 18, 2002. After an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On May 4, 2004, the AJ issued a partial summary judgment determination
finding no discrimination as to certain of her claims, but conducted a
hearing on the following claims:
(1) Did the agency discriminate against the complainant on the basis
of sex (female) when it failed to provide her with pregnancy-related
accommodations?
Was complainant subjected to a hostile work environment on the basis
of sex (female), due to her pregnancy?
On September 16, 2004, the AJ issued a decision finding no discrimination
as to claim (1). However, the AJ determined that complainant prevailed on
her harassment claim (claim (2)), finding that she had been subjected to
a pregnancy-based hostile work environment. In reaching this decision,
the AJ found that complainant reported the harassing conduct of the
responsible management official (RMO) to numerous management officials,
both in her supervisory chain and in the personnel office, who failed
to take action.
As relief, the AJ ordered that complainant's personnel records be
expunged of negative materials associated with the unlawful harassment;
that the agency post a notice reflecting the finding of discrimination;
and that complainant be awarded $30,000.00 in compensatory damages. As a
preventative measure, the AJ also ordered the agency to provide training
designed to ensure that the �supervisors, managers, and employees�
at complainant's facility understand their obligations, rights, and
responsibilities under the civil rights statutes, so as to ensure that
individuals who are pregnant are protected against unlawful harassment.
On October 29, 2004, the agency issued a final order which adopted the
AJ's decision. Therein, the agency advised complainant that it would
implement the AJ's Order of relief, with one exception� it would not
undertake the above described staff training. The agency determined
that the AJ's Order to undertake this training was not supported by the
record, and authorized its Bureau of Prisons to file an appeal limited
only to this determination. Accordingly, we find that the instant appeal
concerns only the issue of whether the AJ properly ordered the agency
to provide EEO training to its staff at complainant's facility.
Pursuant to 29 C.F.R. � 1614.501 (a)(2), to remedy a finding of
discrimination, the Commission may order the agency to provide full
relief, to include corrective, curative or preventive actions to ensure
that violations of the law similar to those found will not recur.
Based on this regulatory authority, it is well established that the
Commission may properly order an agency to provide relevant EEO training
to employees as a measure to prevent future occurrences of discrimination.
See Wild v. Department of Defense, EEOC Request No. 05A10058 (March
16, 2001). We advise the agency that the purpose of such training is
not to punish individuals for past discriminatory conduct, but rather,
it is mean to educate employees concerning the requirements of the law
in order to avoid future violations.
Although the agency does not specify why the record does not support
EEO training as a remedy, we note that the AJ's order is quite broad,
to include supervisors, managers, and employees. However, based on our
review of the record, we find that the RMO's conduct toward complainant
was observed by many witnesses, including supervisors, managers, and
co-workers. However, no one took any measures whatsoever to address
this situation, which took place frequently, over a period of many months.
Moreover, record evidence reflects that the RMO's treatment of complainant
was generally well known at this facility, and yet it continued unabated.
Therefore, it appears that the staff at this facility may have been
unaware that this treatment of complainant by RMO was unlawful under the
Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) (1978), and constituted
sex-based harassment. As such, we find that the AJ properly issued an
Order under 29 C.F.R. � 1614.501 (a)(2), to require that all personnel
at complainant's facility receive pregnancy-based EEO/anti-harassment
training. See Horken v. U.S. Postal Service, EEOC Appeal No. 01976837
(April 6, 2000). Finally, while we find that the AJ did not specify
the number of hours for this training, we will specify the number of
hours in the Order that follows.
Accordingly, for the reasons set forth above, we REVERSE that part of
the agency's final order which finds that the AJ improperly ordered the
agency to provide EEO training, and we REMAND this case with instructions
to implement this Order. We otherwise AFFIRM the agency's final Order
which adopts the AJ's decision and implements her Order of remedies.
ORDER
If it has not already done so, as set forth in the AJ's Order, the
agency is instructed to undertake the following actions within thirty
(30) calendar days of the date that this decision becomes final:
The agency shall expunge all negative references and materials
in complainant's personnel records that derive from the unlawful
pregnancy-based harassment;
The agency shall provide complainant with the opportunity to work in
a harassment-free environment, and cease all harassing actions;
The agency shall provide 16 hours of EEO training, with a focus on the
Pregnancy Discrimination Act and the agency's anti-harassment policy,
to all supervisors and managers at complainant's facility; and
All other personnel currently working at the facility are to receive
8 hours of EEO training, explaining rights and obligations under the
Pregnancy Discrimination Act, and the agency's anti-harassment policy.
The agency shall post a Notice at its Bureau of Prisons, Federal Medical
Center, Lexington, Kentucky facility as set forth in the �Posting Order�
below; and
The agency shall pay complainant $30,000.00 as compensatory damages.<1>
A copy of all pertinent documentation confirming compliance with the above
actions must be sent to the Compliance Officer as referenced below.
POSTING ORDER (G0900)
The agency is ordered to post at its Bureau of Prisons, Federal Medical
Center, Lexington, Kentucky 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 (K0501)
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 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 (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 9, 2006
__________________
Date
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 a
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., has occurred at this 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.
This facility was found to have violated Title VII when an employee
was subjected to pregnancy-based sexual harassment. The Commission
has ordered the agency expunge personnel records, provide pertinent
facility-wide training, and pay the complainant compensatory damages.
The facility will comply with federal law and 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.
______________________________
Director,
Bureau of Prisons,
Federal Medical Center,
Lexington, Kentucky
Date Posted: __________________
Posting Expires: ______________
29 C.F.R. Part 16141We note that complainant is not entitled to an award
of attorney's fees because her representative was a non-attorney.