Paula Rathers, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity CommissionAug 12, 2009
0120080750 (E.E.O.C. Aug. 12, 2009)

0120080750

08-12-2009

Paula Rathers, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.


Paula Rathers,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury

(Bureau of Engraving and Printing),

Agency.

Appeal No. 0120080750

Hearing No. 450-2006-00239X

Agency No. BEP-06-0489-F

DECISION

On December 1, 2007, complainant filed an appeal from the agency's

November 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 deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission MODIFIES the agency's final order.

ISSUES PRESENTED

1. Whether complainant was subjected to sexual harassment

by a co-worker; and

2. Whether the agency is liable for the co-worker's

harassment of complainant.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Equal Employment Opportunity (EEO) Assistant for the Bureau of

Engraving and Printing in Fort Worth, Texas.

On November 7, 2005, complainant filed an EEO complaint alleging that

she was discriminated against on the basis of sex (female) when she was

sexually harassed by a co-worker on March 1, 2004.1

In an investigative affidavit, complainant stated that on March 1,

2004, an employee who worked in a different area of complainant's office

approached her while she was at a water fountain and told her that he

wanted to talk to her. Complainant stated that she and the co-worker

went to her office, and the co-worker commented that complainant is

"such a beautiful woman," asked her for a hug, and put both of his hands

on her breasts. IF, Ex. 4 at p. 3. Complainant also stated that when

she stepped back to avoid further contact with the co-worker, she fell

into a chair, and the co-worker ran his hands down her body to her hips.

Complainant stated that the co-worker left her office, and she immediately

told a police inspector about the incident. Complainant stated that

on March 2, 2004, she informed her second-level supervisor about the

incident, and the supervisor advised her to inform the Office of Security

about the incident.

Complaint further stated that on or about March 3, 2004, she informed her

first-level supervisor and a co-worker who is an EEO counselor about the

incident. Complainant stated that the first-level supervisor immediately

issued a letter to the harasser directing him to stay a certain number

of feet away from complainant.

In an investigative affidavit, the Chief of Equal Employment Opportunity

and the Resolution Center, complainant's second-line supervisor, stated

when complainant called him on the telephone and told him that she had

been fondled by someone, he asked complainant if she had reported the

matter to security, and complainant replied that she had not reported the

incident. The supervisor further stated that he instructed complainant

to immediately report the matter to the Office of Security, and the Office

of Security subsequently conducted an investigation of the incident.

A Human Resources Specialist stated that he received the case involving

complainant's allegations on or about August 26, 2004. He stated that

on October 25, 2004, the agency issued the harasser a proposed three-day

suspension, and on December 3, 2004, issued the harasser an official

reprimand, which would remain in his Official Personnel Folder for one

year.

The Manager of Mechanical Exam Operations and the harasser's second-line

supervisor stated that a letter was issued to the harasser on March 3,

2004, in which the harasser was ordered to stay away from the EEO office

and complainant. He further stated that in order to visit the EEO office,

the harasser had to make an appointment through complainant's supervisor,

but the harasser usually worked the midnight shift. The Manager further

stated that the Office of Security conducted an investigation of the

matter, and based on his review of the investigation, he issued the

harasser an official reprimand.

The Manager of the Security Division stated that after complainant

informed the agency of the harassment, the agency issued the harasser

a letter directing him not to go to the EEO area and not to contact

any EEO employee other than complainant's first-line supervisor.

She stated that she also initiated an investigation into the incident

by appointing the Security Specialist in the Personnel Security Branch

and an investigator to conduct the investigation. She stated that the

investigation began immediately, and complainant was interviewed on March

3, 2004. She further stated that after the investigation was completed,

she reviewed the investigation and forwarded it to the Labor Relations

Office. The Manager stated that on September 10, 2004, the Security

Division received a request for additional information from the Labor

Relations Specialist, a supplemental investigation was conducted, and

a supplemental report was forwarded to the Labor Relations Office on

September 15, 2004.

A female co-worker stated that complainant shared the details of the

harasser's conduct with her. The co-worker stated that she advised

complainant to report the incident and told complainant about her

encounter with the harasser. The co-worker stated that one day when she

was smoking a cigarette outside of the office, the harasser approached

her and told her that he would pin a badge on her, and as he pinned the

badge, stated, "All I wanted to do is touch your breast." IF, Ex. 13

at p. 3. The co-worker stated that she grabbed her badge, walked away,

but "did nothing" about the incident. Id.

In an affidavit, the accused harasser denied telling complainant that

she was a beautiful woman and maintained that complainant extended her

arms to him to wish him a happy birthday. The accused harasser further

stated that on March 4, 2004, the day shift supervisor called him into his

office and advised him what complainant had alleged. He further stated

that complainant's first-line supervisor issued him a letter ordering him

not to come around complainant's side of the building without informing

the supervisor. He also stated that his second-line supervisor issued

him a letter of reprimand because of complainant's claims.

The record contains a copy of a memorandum to the harasser dated March 3,

2004, in which the agency instructed the harasser to not come into the

area of the EEO Office unless he previously arranged for an appointment

by contacting complainant's supervisor. The letter further stated that

the harasser must not contact any EEO employee without prior approval

from complainant's supervisor.

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. On November 2, 2006, the agency moved for

the dismissal of complainant's complaint on the grounds that it was

initiated by untimely EEO counselor contact, and alternatively moved for

a decision without a hearing on the merits of complainant's complaint.

In response, complainant argued that she contacted an EEO counselor in

a timely manner when she informed her co-worker who is an EEO counselor

of the harassment on March 4, 2004 and reported the harassment to her

supervisor on March 2, 2004. Complainant further argued that, viewed in

the light most favorable to complainant, the alleged harasser's conduct

was sufficiently severe to constitute harassment. Complainant also

stated that although the agency instructed the alleged harasser to avoid

complainant's work area and reprimanded him, there was a genuine issue of

material fact because complainant demanded additional responses from the

agency, including installing a panic button at her desk; compensatory

damages and attorney's fees; promoting her to grade 12; and, training

supervisors about sexual harassment prevention.

In a decision dated October 23, 2007, the AJ dismissed complainant's

complaint on the grounds that it was initiated by untimely EEO counselor

contact. The AJ concluded that although complainant informed EEO officials

of the alleged harassment in March 2004, she did not make an attempt to

file a claim until after the 45-day time limit. The AJ further found

that although the alleged harassing actions were sufficiently severe to

constitute harassment, complainant failed to prove that the agency should

be held liable because the agency took prompt and effective actions to

correct the harassment. The agency subsequently issued a final order

adopting the AJ's findings.

CONTENTIONS ON APPEAL

On appeal, complainant reiterates the aforementioned arguments that were

raised in her response to the agency's motion for a decision without

a hearing/dismissal. The agency requests that we affirm its final order.

ANALYSIS AND FINDINGS

Untimely EEO Counselor Contact

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

In this case, the AJ dismissed complainant's complaint on the basis that

it was initiated by untimely EEO counselor contact. Complainant maintains

that she initiated EEO counselor contact on March 2, 2004, when she

reported the harassment to her second-line supervisor who is the Chief

Equal Employment Opportunity and Alternative Dispute Resolution, and on

March 4, 2004, when she informed a co-worker who is an EEO counselor of

the harassment.

The record contains an email dated November 15, 2005 to the Chief of

Equal Employment Opportunity and the Resolution Center from the EEO

counselor who discussed the harassment with complainant. In the email,

the counselor stated that complainant informed him on March 4, 2004,

that a co-worker had sexually harassed her on March 2, 2004 and that

after contacting the Chief of Equal Employment Opportunity and the

Resolution Center, the Manager referred her to the Officer of Security

for the processing of her sexual harassment complaint. The counselor

further stated that he was not involved in the processing of complainant's

complaint because the Security Office processed complainant's complaint.

He further stated that on June 17, 2005, complainant contacted him

by email and requested to file a sexual harassment complaint, and he

contacted complainant by telephone on June 20, 2005 to schedule an

appointment for her to see him the next day. The counselor further

stated that complainant indicated that she was filing a complaint with

the Security Division based on the EEO Chief's opinion that it was better

to file her complaint with the Security Division.

The counselor also stated that on July 11, 2005, complainant told

him that she wanted to wait to file a complaint because she wanted to

request information from the Office of Security through the Freedom of

Information Act. He stated that complainant received an answer to her

request in October 2005 and filed her complaint on November 3, 2005.

The record also contains a statement from the EEO counselor stamped

December 30, 2005, in which the counselor stated that complainant talked

to him about the sexual harassment within 45 days of the incident

and indicated that the Chief of Equal Employment Opportunity and the

Resolution Center had told her to file her sexual harassment complaint

with the Security Office. The counselor further stated that complainant

indicated that she was filing with the Security Office based on the

Chief of Equal Employment Opportunity and the Resolution Center's

instructions.

Upon review, we note that the Commission has held that in order to

establish EEO counselor contact, an individual must contact an agency

official logically connected to the EEO process and exhibit an intent

to begin the EEO process. See Allen v. United States Postal Service,

EEOC Request No. 05950933 (July 9, 1996). EEO Counselor contact, for

purposes of tolling the time limit, requires at a minimum that the

complainant intends to pursue EEO counseling when she initiates EEO

contact. See Snyder v. Department of Defense, EEOC Request No. 05901061

(November 1, 1990); Menard v. Department of the Navy, EEOC Appeal

No. 01990626 (January 5, 2001), request for reconsideration denied,

EEOC Request No. 05A10279 (May 9, 2001).

In this case, complainant reported the alleged harassment to the Chief of

EEO on March 2, 2004. Additionally, complainant reported the harassment

to an EEO counselor on or about March 4, 2004. Nonetheless, both

complainant and the EEO counselor indicate that complainant initially

sought to have her sexual harassment complainant processed through the

Security Office because the Chief of EEO assured her that this was

the proper way to handle her complaint. Moreover, the Chief of EEO

acknowledged that he ordered complainant to pursue her sexual harassment

with the Security Office, but there is no indication that he apprized

complainant of her right to also pursue her claim through the EEO process.

In light of the EEO Chief's supervisory directive to complainant,

we find that it was reasonable for complainant to wait until June 17,

2005 to exhibit an intent to begin the EEO process. Consequently, we

find that the applicable time limits should have been waived in this case

and determine that the AJ incorrectly dismissed complainant's complaint

on the basis that it was initiated by untimely EEO counselor contact.

Sexual Harassment/ Hostile Work Environment

Regarding the merits of this case, 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").

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).

We find that the AJ properly issued a decision without a hearing because

complainant failed to show that a genuine issue of material fact exists.

Complainant alleged that a co-worker sexually harassed her on March

1, 2004. 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 related to her sex; (3) that the harassment

complained of was based on her sex; (4) that 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) that there is a basis for imputing liability to the employer.

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

(August 5, 1999)( citing Hanson v. City of Dundee, 682 F.2d 987, 903

(11th Cir. 1982).

Here, complainant, a female, is a member of a statutorily protected class.

Further, assuming complainant's account of the events of March 1, 2004

to be true, we also find that complainant was subjected to unwelcome

conduct, as reflected by complainant's attempts to escape the harasser

and her immediate reporting of the incident to several agency officials.

We further determine that the alleged incidents occurred because of

complainant's sex because the evidence indicates that the only other

employee who was subjected to similar harassing conduct by the harassing

co-worker was also female.

Turning to the fourth prong of the prima facie case, we note that whether

or not an objectively hostile or abusive work environment exists is based

on whether a reasonable person in complainant's circumstances would have

found the alleged behavior to be hostile or abusive. The incidents must

have been "sufficiently severe and pervasive to alter the conditions of

complainant's employment and create an abusive working environment."

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also

Oncale v. Sundowner Offshore Services., Inc., 23 U.S. 75 (1998). To

ascertain this, we look at the totality of the circumstances, including

the frequency of the discriminatory conduct; its severity; whether it was

physically threatening or humiliating, or a mere offensive utterance;

whether it was hostile or patently offensive; whether the alleged

harasser was a co-worker or a supervisor. See Harris, 510 U.S. 17, 23

(1993); see also Policy Guidance on Current Issues of Sexual Harassment,

EEOC Notice No. N-915-050 (Mar. 19, 1990).

Under the standard that 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, we determine that the

harasser's suggestive comments toward complainant, the touching of

complainant's breasts, and the running of the harasser's hands down

complainant's body were "sufficiently severe [and] pervasive to alter

the conditions of [appellant's] employment and create an abusive working

environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Thus, for purposes of our analysis, the complainant established that

the alleged incidents created a hostile work environment.

The fifth prong of the prima facie case requires a basis for imputing

liability to the employer. Where, as here, the harassment is perpetrated

by a co-worker, an employer is liable if it knew or should have known of

the misconduct and failed to take immediate and appropriate corrective

action. Policy Guidance on Current Issues of Sexual Harassment, EEOC

Notice No. N-915-050 at 29-30 (March 19, 1990); Owens v. Department of

Transportation, EEOC Request No. 05940824 (September 5, 1996).

Complainant notified several management officials of the harassment on

March 1, 2, and 3, 2004. In a letter dated March 3, 2004, the agency

ordered the harasser to stay away from complainant's office and not

contact any EEO employees except complainant's supervisor. Additionally,

the agency investigated complainant's claims and issued the harasser

an official reprimand. In her affidavit, complainant stated that the

harasser has not tried to contact her since he received the letter,

which indicates that the agency's response was prompt, appropriate,

and effective. IF, Ex. 4 at p. 4. Further, there is no indication in

the record that the co-worker engaged in any harassing conduct toward

complainant before March 1, 2004, and there no evidence that the agency

was aware of the harasser's propensity to engage in sexually harassing

conduct toward anyone before March 1, 2004.

On appeal, complainant maintains that the harasser was "often and

suspiciously out of place at the Product Monitoring Station" and made

unsolicited telephonic contacts to employees before March 1, 2004.

However, a review of the record reveals that while employees reported

that the harassing co-worker sporadically looked through the window

of the Product Monitoring Station, knocked on its door, called for

employees to open the door, and engaged in general conversation with

employees, these were not actions that should have placed the agency

on alert that the co-worker had a propensity to engage in sexually

harassing conduct. Under these circumstances, we find that no reasonable

fact-finder could conclude that the agency failed to take immediate and

appropriate corrective action or should have known of the harasser's

sexual misconduct before March 1, 2004. Therefore, we find that the AJ

properly found that the agency was not liable for the alleged harassment.

To the extent that complainant contends that the agency should nonetheless

be ordered to install a panic button at her desk; pay her compensatory

damages and attorney's fees; and, promote her to grade 12, we decline

to order these remedies because complainant is not a prevailing party

on her complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we reverse the

agency's dismissal of complainant's complaint on the basis of untimely

EEO counselor contact. The Commission affirms the final order finding

that the agency was not liable for alleged sexual harassment for the

reasons set forth in this decision.

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 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 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 (S0408)

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 (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

______8/12/09____________

Date

1 We note that complainant withdrew reprisal for a basis for her

complaint. IF, Ex. 4 at p. 5.

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0120080750

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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