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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0120080750