[Redacted], Silas T., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 22, 2022

Appeal No. 2019003996 (E.E.O.C. Feb. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Silas T.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Request No. 2021003822 Appeal No. 2019003996 Agency No. 8T0R17006TF18 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019003996 (May 24, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the following reasons, we DENY the Agency's request. At the time of events giving rise to Complainant’s complaint, he worked as a non-appropriated fund (NAF) NF-1101-IV Chili's Grill and Bar Manager at the Chili’s restaurant located at the Agency’s 18th Wing, 18th Mission Support Group (MSG), 18th Force Support Squadron (FSS) facility at Kadena Air Base in Okinawa, Japan In our previous decision, we reversed the Agency’s final decision, and found that Complainant established that he was subjected to a hostile work environment and constructively discharged based on his sexual orientation when he was threatened with physical harm and subjected to 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003822 2 homophobic slurs. We specifically noted that Complainant’s first-line supervisor (S1A) admitted that he described a problematic situation as “fucked up like two boys kissing.” We also observed that on October 26, 2017, a coworker (C3) threatened to kill Complainant, threatened to “fuck him up,” and repeatedly shouted that he was a “faggot.” We also noted that C3 returned to the restaurant several times, threatening to sue Complainant, get him fired, or otherwise harm him. But S1A nevertheless told Complainant that C3 would be added to the schedule and returning to work. We further noted that on November 20, 2017, C3 could remain at the restaurant as a customer even after Complainant reported that C3 and another coworker (C2), who was also the daughter of C3, were harassing him. We determined the record established that Complainant was subjected to a hostile work environment based on sex and sexual orientation. We further found the Agency vicariously liable for the harassment by S1A and C3, finding that the Agency did not establish that it exercised reasonable care to prevent and promptly correct the harassing behavior. In so finding, we observed that despite C3’s egregious harassment of Complainant on October 26, 2017, C3 was allowed to return to the restaurant on various occasions, where she told coworkers that she wished Complainant was there so she could harm him. We found that given the threats of violence and use of derogatory language, a reasonable person in Complainant’s position would have found his working conditions to be so intolerable that he would have no choice but to resign. We therefore determined that Complainant established that he was constructively discharged from his position, finding that Complainant resigned upon learning that C3 would be returning to work, even though she continued to threaten him with physical harm. In its Request for Reconsideration, the Agency asserts that Complainant only resigned after C3 returned to the restaurant as a customer on November 20, 2017. The Agency maintains that the November 20, 2017, incident was based on C3’s previous disagreement with Complainant over the disciplining of C3’s daughter, C2, and therefore, the matter was unrelated to Complainant’s sexual orientation. According to the Agency, the November 20, 2017, incident was nevertheless the last time C3 was present at the restaurant when Complainant was there; and they fired C3 from the restaurant a little more than two weeks later. The Agency argues that an employer can only be liable for a patron’s actions when the employer ratified or condoned the conduct by failing to investigate and remedy it. The Agency maintains that C3 never worked at the restaurant after the October 27, 2017, incident, and was also never a patron after the November 20, 2017, incident. The Agency also notes that while talking on the phone to another induvial, Complainant overheard S1A state that another physical assault that had occurred at the restaurant was “fucked up like two boys kissing.” The Agency contends the statement was not directed toward Complainant nor was it intended for Complainant to hear the comment. The Agency maintains that S1A admitted to making the statement and received an oral admonishment, and no more discriminating behavior came from this S1A. 2021003822 3 The Agency asserts that S1A’s statement was unrelated to C3’s behavior, and there was nothing the Agency could have to done to prevent, predict, or correct the behavior of C3. Upon review, we find the Agency has not met the criteria for reconsideration. As noted above, a reconsideration request is an opportunity to demonstrate that the previous decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. Notwithstanding the Agency's arguments in its request, there is no dispute that C3 came to the restaurant on October 27, 2017, calling Complainant a “faggot” and threatening to kill him. Yet, C3 was not terminated until December 5, 2017. During the period before C3’s firing, C3 was allowed to return to the restaurant on numerous occasions, even in the presence of Complainant, wherein C3 told other waiters that she wanted to harm Complainant and have him fired. We note that Agency argues that it cannot be liable for C3’s harassment after October 26, 2017, because C3 simply returned as a patron of the restaurant. However, EEO Regulations provide that employers may be held liable for the acts of non-employees where the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(e); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). We find that the Agency clearly failed to take reasonable care to protect Complainant, a restaurant Bar Manager, from C3’s discriminatory harassment. We note that Commission precedent supports that an agency's obligation to take appropriate and immediate corrective action in response to an allegation of non-employee harassment is not diminished when the complainant's job duties necessarily involve more interaction with non-employees, allowing for increased potential for non-employee harassment. Caroline B. v. Dep’t of Veteran’s Affs., EEOC Appeal No. 2020000978 (Sept. 16, 2021). While the Agency argues that S1A received an oral admonishment over his admitted statement, the Agency does not address our finding that SIA informed Complainant that C3 would be returning to work and put back on the schedule, even though SIA was aware that C3 had referred to Complainant in a derogatory manner and threatened to kill him. CONCLUSION After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2019003996 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER 1. Within 60 days of the date this decision is issued, the Agency shall offer Complainant reinstatement to his former NF-1101-IV Chili's Grill and Bar Manager position, 2021003822 4 retroactive to the effective date of Complainant's resignation, November 22, 2017, with all the rights, benefits, and privileges of that position. The Agency shall afford Complainant 15 days to determine whether to accept reinstatement. Should Complainant reject the offer of reinstatement, Complainant's entitlement to back pay shall terminate as of the date of rejection. 2. Within 60 calendar days of the date this decision is issued, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501. The back-pay award shall reflect all career ladder promotions to which an employee in Complainant's position who performed in a fully successful manner was entitled. The Agency shall also restore any leave taken as a result of the harassment. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled, “Implementation of the Commission's Decision.” 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. 4. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of his compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 30 calendar days after the completion of the investigation. 5. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the responsible management officials.2 If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left 2 We note that “responsible management officials” includes any agency personnel responsible for the discrimination against Complainant, regardless of whether such persons occupy management or non-management positions. 2021003822 5 the Agency's employment, then the Agency shall furnish documentation of their departure date(s). 6. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to the responsible management officials, with an emphasis on sexual orientation discrimination and on management's responsibility to respond to allegations of harassment. 7. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice, as provided in the statement entitled “Posting Order.” The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its 18th Wing, 18th Mission Support Group, 18th Force Support Squadron facility at Kadena Air Force Base in Okinawa, Japan, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 2021003822 6 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. 2021003822 7 You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 22, 2022 Date