Patricia Milton, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 1, 2000
01994291 (E.E.O.C. May. 1, 2000)

01994291

05-01-2000

Patricia Milton, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Patricia Milton, )

Complainant, )

) Appeal No. 01994291

v. ) Agency No. 980435

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

Complainant alleged that she was discriminated against on the basis of

her sex (female) when she was sexually harassed. Complainant alleged

that a hostile work environment was created when:

(1) she was hit on the buttocks by a doctor (D) in April 1996<2>;

(2) she was again hit on the buttocks by D on July 27, 1997; and

(3) D approached her on November 5, 1997 and attempted to have a

conversation with her about the above incidents.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Staff Nurse at the agency's Oklahoma City, Oklahoma facility.

Believing she was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on November 18, 1997.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or,

alternatively, to receive a final decision by the agency. After first

requesting a hearing, complainant withdrew this request in favor of

receiving an immediate FAD.

In its FAD, the agency concluded that complainant failed to establish a

prima facie case of sexual harassment because the incidents about which

she complained did not create a hostile environment. The agency found

the April 1996 and July 1997 incidents to be accidental and the November

1997 conversation to be an attempt on D's part to apologize.

The agency went on to note that once complainant reported D's behavior,

management reprimanded D and required him to write a letter of apology

and attend training on sexual harassment. Following the November

1997 incident, D was prohibited from returning to the medical center.

The agency concluded that complainant did not establish that she was

sexually harassed.

Complainant raises no arguments on appeal and the agency asks that its

FAD be affirmed.

ANALYSIS AND FINDINGS

It is well settled that sexual harassment in the workplace constitutes

an actionable form of sex discrimination under Title VII. See 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 of 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 Henson v. City of Dundee, 682 F.2d. 897 (11th Cir. 1982); see also

McCleod v. Social Security Administration, EEOC Appeal No. 01963810

(August 5, 1999). The harasser's conduct should be evaluated from the

objective viewpoint of a reasonable person in the victim's circumstances.

Enforcement Guidance on Harris v. Forklift Systems, Inc, EEOC Notice

No. 915.002 (March 8, 1994).

Regarding element (1), complainant has established that she is a member

of a statutorily protected class. With regard to elements (2) and

(3), the Commission finds that the conduct in question was clearly

related to complainant's gender in that D hit complainant twice on

the buttocks. While D explained to complainant that he often touched

a male colleague on the shoulder, complainant correctly noted that a

touch to the shoulder is quite different than a touch to the buttocks.

D admitted to inappropriately touching complainant on July 22, 1997.

While he did not recall a similar incident occurring in April 1996, two

witnesses substantiate complainant's claim. One, a health technician

(HT), indicated that while the event �kind of shocked� him, he believed it

was unintentional. The other witness, a registered nurse (RN), testified

that he did not clearly see the April incident occur, but thought he had

seen D touch complainant's buttocks and remembers being very surprised.

RN clearly remembered hearing complainant tell D after the incident that

she never wanted him to touch her hips again. The contact was clearly

unwelcome given that after both incidents, complainant admonished D for

his behavior.

Turning to element (4), the agency felt that the conduct in question

was not severe or pervasive enough to create a hostile environment.

Commission guidance states, however, 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 (Policy Guidance), 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. See id.

In the case at hand, there is evidence that D touched complainant on

the buttocks twice, that after the first, perhaps unintentional touch,

complainant told D never to touch her in a similar way again, and that

he nevertheless did so, intentionally, at a later date. The agency

offered nothing to suggest that this unwelcome, intentional touching

of petitioner's buttocks should not be viewed as sufficiently offensive

to alter the conditions of complainant's working environment. We find,

therefore, that complainant has established element (4).

In considering whether complainant has satisfied element (5), the

Commission notes that the agency is potentially liable for the harassment

created by a supervisor or someone who acts in a supervisory capacity.

There is little information in the record on professional relationship of

complainant and D. It is clear from the FAD, however, that the agency

viewed D as a supervisor of complainant, as the agency noted therein

that management was liable for sexual harassment by a supervisor with

immediate or successively higher authority over a victimized employee

unless it establishes the affirmative defense discussed in two recent

Supreme Court decisions. See Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775

(1998); see also Enforcement Guidance: Vicarious Employer Liability for

Unlawful Harassment by Supervisors (Enforcement Guidance), EEOC Notice

No. 915.002 at 4. (June 18, 1999). Moreover, the record indicates that

D had the authority to direct complainant's daily work activities, as

the first incident took place when D was directing complainant to bring

in his next patient. See Enforcement Guidance at 5. Therefore, we

find that a basis exists under which liability for D's harassment could

potentially be imputed to the agency. Accordingly, because complainant

has satisfied Elements 1 through 5, we find that she has established

that she was subjected to sexual harassment.

Vicarious Liability

An employer is subject to vicarious liability for sexual harassment when

it is �created by a supervisor with immediate (or successively higher)

authority over the employee.� See Ellerth and Faragher. When, as here,

the harassment does not result in a tangible employment action being

taken against the employee, the employer may raise an affirmative defense

to liability. The agency can meet this defense, which is subject to

proof by a preponderance of the evidence, by demonstrating (a) that it

exercised reasonable care to prevent and correct promptly any sexually

harassing behavior and; (b) that complainant unreasonably failed to take

advantage of any preventive or corrective opportunities provided by the

agency or to avoid harm otherwise. See Enforcement Guidance at 12.

We find, however, that the agency cannot establish the second prong of the

affirmative defense, i.e., that complainant unreasonably failed to take

advantage of preventive or corrective opportunities. Although complainant

did not report D's actions to management until after the second incident,

she did tell D that she found his behavior inappropriate after the first

incident and requested that he never touch her in a similar fashion again.

When a second incident occurred, complainant immediately reported the

situation to her supervisor. We find this to have been reasonable

behavior on the part of complainant. See Enforcement Guidance at 30.

Having found that the agency did not establish one of the two necessary

prongs to the affirmative defense, the Commission finds that the agency

is liable for D's harassment of complainant.<3>

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

contentions on appeal and arguments and evidence not specifically

addressed in this decision, we REVERSE the agency's final decision and

REMAND this case to the agency to take remedial actions in accordance

with this decision and ORDER below.

ORDER

The agency is ORDERED to take the following actions:

The agency shall take appropriate preventative steps to ensure that no

employee is subjected to sexual harassment and to ensure that appropriate

steps are taken immediately after management is notified of any such

harassment.<4>

The agency shall ensure that D is not permitted to work in the same

facility as complainant without her agreement.

Complainant shall be awarded attorney's fees, as provided below.

The agency shall post the attached notice, as provided below.

The agency shall conduct a supplemental investigation to determine

whether complainant is entitled to compensatory damages for the

harassment she experienced between July 1997 and November 1997.<5>

The agency shall allow complainant to present evidence in support of

her compensatory damages claim. Complainant shall cooperate with the

agency in this regard. Thereafter, the agency shall issue a final

decision. EEOC Regulation 37,644, 37,657 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.110(b)). The supplemental

investigation and issuance of the final decision must be completed

within sixty (60) calendar days of the date this decision becomes final.

A copy of the final decision must be submitted to the Compliance Officer,

as referenced below.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Oklahoma City, Oklahoma 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).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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.

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:

May 1, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

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 Department of

Veterans Affairs, Oklahoma City, Oklahoma Medical Center (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 against an employee when

that employee was sexually harassed by a supervisor. The agency has

already reprimanded the harasser, ordered him to write a letter of

apology to the employee, and transferred him out of his rotation at

the facility. The agency has been ordered to (1) take appropriate

preventative steps to ensure that no employee is subjected to sexual

harassment and to ensure that appropriate steps are taken immediately

after management is notified of any such harassment; (2) ensure that

complainant and the harasser do not work in the same area in the future;

(3) determine whether complainant is entitled to an award of compensatory

damages; (4) award reasonable attorney's fees, if applicable; and (5)

post this notice.

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:

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 There is some confusion in the record concerning this date. At times

this first incident is said to have occurred in April 1997, and at other

times in April 1996. We credit complainant's statement in her affidavit

that it occurred in April 1996 and judge the references to April 1997

to be typographical errors.

3 We need not explore whether the agency demonstrated the first prong

of the affirmative defense. We note, however, that while the agency

did, once informed, conduct an internal investigation that resulted in

disciplinary action against D, the record indicates that the agency

asked complainant if she would like to transfer to a different area

so as to avoid working with D. Commission guidance is clear that

remedial measures must not adversely affect the complainant. If the

agency determines that it is necessary to separate the parties, then the

harasser should be transferred, unless complainant prefers otherwise.

See Enforcement Guidance at 22.

4 The record indicates that the agency has reprimanded D and that

complainant requested and received a letter of apology from D. Moreover,

the agency required D to take sensitivity training on issues of sexual

harassment. Finally, the agency notes that D was removed from his

rotation at the medical center and that, as of November 1997, he has

not been allowed to return to the medical center.

5 The first incident occurred in April 1996, but complainant did not

bring D's behavior to the agency's attention until July 1997. While we do

not find complainant's behavior to be unreasonable, we believe that had

complainant complained earlier she may have avoided a portion of the harm

she suffered. We therefore find the appropriate time period to consider

in regard to compensatory damages is July 1997 through November 1997.