[Redacted], Soo C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Apr 19, 2021

Appeal No. 0120182244 (E.E.O.C. Apr. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Soo C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request No. 2020004323 Appeal No. 0120182244 Agency No. BOP-2016-00574 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. 0120182244 (June 24, 2020). 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). ISSUES PRESENTED The issues are 1) whether the Agency’s request meets the criteria for reconsideration in 29 C.F.R. § 1614.405(c), and 2) if so, was the alleged discriminatory conduct sufficiently severe or pervasive so as to support a finding of discrimination. 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. 2020004323 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Facilities Operations Specialist at the Agency’s Metropolitan Detention Center in Brooklyn, New York. On June 26, 2014, Complainant wrote a memorandum to the then-Warden (W1) complaining of unwanted touching on her arm, back, and waist by the Associate Warden (AW). Complainant stated that when she asked AW to stop, he responded to her, “I will touch you and if you don’t like it you can file.” Report of Investigation (ROI) at 76. Complainant stated that AW informed her that he received a reprimand and training due to her complaint. However, Complainant stated that AW subjected her to more unwanted touching on three separate occasions in 2015: (1) on an unspecified date, AW rubbed her back; (2) in September 2015, AW rubbed her shoulder; and (3) on May 22, 2015, AW rubbed her back. ROI at 79. On July 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when from June 24, 2014, through May 22, 2015, Complainant notified W1 that she was subjected to sexual harassment when AW had touched her on several occasions in an inappropriate manner; and on April 12, 2016, Complainant’s yearly performance evaluation was lowered. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency’s final decision, and she requested that the Commission reverse the final decision and issue a finding of discrimination. The Agency did not respond to Complainant’s appeal. On June 24, 2020, the Commission reversed the Agency’s finding that Complainant did not establish that the Agency subjected to sexual harassment and affirmed the Agency’s finding that Complainant did not establish that the Agency subjected her to retaliation for her performance appraisal. Regarding the sexual harassment claim, the Commission found that Complainant was subjected to unwelcome physical conduct and that AW did not touch men in the same manner. In addition, the Commission determined that, from an objective perspective, Complainant’s frustrations and harassment allegations were justified. The Commission also found that the Agency’s handling of the matter was unsettling because W1 asked Complainant to recommend a course of action, but that it was the Agency’s responsibility to issue discipline and take appropriate action based on its sexual harassment policy. While AW provided conflicting testimony that he was not issued any discipline, W1 informed AW that as long as there were no additional incidents of touching, there would be no discipline against him. However, the back- rubbing incident subsequently occurred. The Commission concluded that Complainant proved that she was subjected to sexual harassment and ordered the Agency to provide remedies, including taking steps to ensure that Complainant has no contact with AW. Soo C. v. Dep’t of Justice, EEOC Appeal No. 0120182244 (Jun. 24, 2020). 2020004323 3 ARGUMENTS ON RECONSIDERATION On request for reconsideration, the Agency requests that the Commission vacate that portion of the June 24, 2020 decision modifying its March 13, 2018 final decision that found no discrimination. The Agency contends that the previous decision relies on a clearly erroneous application of well-established law to the facts of this case. Specifically, there is no evidence to support that any of the complained-of actions were motivated by Complainant’s sex; that Complainant was not subjected to a sufficiently severe or pervasive hostile work environment; and there is no basis to impute liability for this allegedly hostile work environment to the Agency. The Agency argues that Complainant cannot show that AW’s contact with Complainant was based on her sex because she did not present evidence of epithets, derogatory sex-based language, innuendo, or any other context to suggest that any of these alleged occurrences were the product of sex discrimination. The Agency also argues that AW’s conduct was not severe or pervasive because it was only a handful of incidents. The Agency notes that Complainant conceded that AW “did not repeat his offending behavior for some time,” undermining the notion that this was pervasive conduct. In addition, the Agency states that Complainant’s sole witness to one of the incidents did not perceive the action to be sexual harassment. The Agency states that Complainant’s subjective feeling that she had been subjected to harassment, standing alone, is insufficient to render a harassment claim actionable. The Agency also argues that it exercised reasonable care to prevent and correct any harassing behavior. The Agency notes that W1 stated that she asked Complainant if the incidents were sexual harassment, who responded that it was not sexual harassment. Despite Complainant’s denials that the matters constituted allegations of sexual harassment, W1 met with AW about Complainant’s allegations and advised him that Complainant did not want him to touch her. In addition, the Agency asserts that Complainant unreasonably failed to take advantage of opportunities to remediate this alleged harassment because she waited months to alert anyone at the Agency of her allegations about the three 2015 incidents when Complainant contacted an EEO counselor in April 2016. The Agency notes that Complainant also testified that, when asked by the new warden (W2), she denied that there were any lingering issues. The Agency requests that the Commission vacate its prior decision and affirm the Agency’s final decision finding no discrimination. In response, Complainant asserts that the Agency failed to meet the criteria of 29 C.F.R. § 1614.405(c) and that its request should be denied. Complainant states that the Commission properly found that she was subjected to unwelcome conduct based on her sex and that no men were subjected to the same conduct by AW. Complainant also states that AW’s statement that, “I do not have to stop touching you. I can touch you at will, and if you do not like it you can file. I do not care if you file, it does not mean anything to me,” and the inherently sexual nature of the back rub proves that AW’s conduct was based on her sex. 2020004323 4 Complainant argues that the Agency attempts to downplay AW’s conduct by describing them as a “handful of isolated incidents.” However, AW engaged in a series of conduct of unwanted physical contact for the sole purpose of creating an intimidating, hostile, and offensive work environment. Complainant also asserts that AW was put on notice that Complainant did not want to be touched yet continued to violate Complainant’s physical boundaries, and that the Agency’s actions were not sufficiently remedial. Complainant asserts that AW’s actions were objectively both severe and pervasive enough to create an environment that a reasonable person would find to be hostile and abusive. Complainant argues that, even assuming arguendo, AW’s conduct only amounted to “isolated instances,” the Commission has found that under certain circumstances, a single, isolated incident could be severe enough to give rise to a hostile environment in and of itself; specifically, the unwelcome, intentional touching of a complainant’s intimate body area. For example, Complainant states that the Commission found that conduct was severe and pervasive when a complainant’s supervisor touched the complainant’s buttocks in Milton v. Dep’t of Veterans Affairs, EEOC Appeal No. 01994291 (May 1, 2000). Complainant asserts that the Agency is liable for the harassment because AW was Complainant’s first-line supervisor at the time of the incidents. Complainant also argues that the Agency failed to follow its harassment policy because it did not investigate Complainant’s allegation and that Complainant’s concerns were unresolved, which led to the continuation of AW’s harassing conduct. In addition, Complainant asserts that the Commission already established that it was irrelevant that AW’s conduct was not currently occurring; that the misconduct occurred over a year ago; or that Complainant did not indicate to management that the offensive conduct was sexual harassment. Complainant requests that the Commission deny the Agency’s request for reconsideration and uphold the decision finding in favor of Complainant. ANALYSIS To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2020004323 5 In its request for reconsideration, the Agency argues that there is no evidence to support that any of the complained-of actions were motivated by Complainant’s sex, and that Complainant was not subjected to a sufficiently severe or pervasive hostile work environment. It is undisputed that Complainant is female and that she was subjected to unwelcome physical contact by AW. While AW denied the allegations in this complaint, a witness stated that he saw AW “rub” Complainant’s back and shoulders. ROI at 145, 291. In addition, we note that AW did not deny Complainant’s allegations that he did not touch men in the same manner or that he stated that he would not stop touching Complainant and that if she did not like it, she could file a complaint. When viewing the circumstances from the objective viewpoint of a reasonable person, we find that AW’s actions were sufficiently severe to rise to the level of an abusive working environment based on Complainant’s sex. Specifically, we find that AW’s decision to continue subjecting Complainant to unwanted touching was egregious, as evidenced by his statement that he would continue touching Complainant in response to her request that he stop touching her. The Agency also argues that there is no basis to impute liability for this allegedly hostile work environment to the Agency. An employer is subject to vicarious liability for unlawful harassment if the harassment was “created by a supervisor with immediate . . . authority over the employee.” Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at 4 (June 18, 1999). However, where the harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, the employer can raise an affirmative defense to liability, which it must prove by a preponderance of the evidence. The defense consists of two elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id. at 12. Here, AW was Complainant’s first-line supervisor during the relevant time. ROI at 140. The Agency asserts that it exercised reasonable care to prevent and correct any harassing behavior, but we find that the Agency’s actions were not sufficiently corrective. While Complainant stated that AW was reprimanded for his conduct towards her, the record shows that AW was reprimanded for actions unrelated to Complainant. ROI at 151, 183-92. However, AW stated that on June 27, 2014, W1 spoke with him about Complainant’s complaint and instructed him to avoid any intentional or unintentional physical contact with Complainant. ROI at 142-3. We find that W1’s verbal instruction, while immediate, was inadequate because it did not prevent future incidents. As such, we find that the Agency did not take reasonable care to prevent and correct the harassing behavior that occurred in 2015. The Agency also asserts that Complainant unreasonably failed to take advantage of opportunities to remediate this alleged harassment because she waited months to alert anyone at the Agency of her allegations about the three 2015 incidents because she did not contact an EEO counselor until April 2016. However, Complainant reported AW’s unwanted conduct to W1 in June 2014 to try to prevent future incidents, after her own attempts to resolve the matter directly with AW were unsuccessful. Accordingly, we find that Complainant did not unreasonably fail to take advantage of any preventative or corrective opportunities. 2020004323 6 We find that the Agency did not show a clearly erroneous interpretation of material fact or law and that Complainant established that she was subjected to sexual harassment, and we DENY the Agency’s request for reconsideration of EEOC Appeal No. 0120182244. 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. 0120182244 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 thirty (30) calendar days of the date that this decision is issued, the Agency shall take all necessary steps to ensure that Complainant has no contact with AW and provide her with a designated management official to inform if subsequent acts of alleged harassment occur by AW or by other individuals on his behalf. 2. Within thirty (30) calendar days of the date that this decision is issued, the Agency shall provide a minimum of sixteen (16) hours of training on management’s obligations under Title VII, particularly on the issue of harassment, for the supervisors and managers in the Agency’s Metropolitan Detention Center facility in Brooklyn, New York (hereinafter this facility), as well as in the work area where Complainant is currently assigned. 3. Within thirty (30) calendar days of the date that this decision is issued, the Agency shall consider taking appropriate additional disciplinary action against AW. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If AW has left the Agency’s employ, the Agency shall furnish documentation of the departure date. 4. Within fifteen (15) calendar days of the date this decision is issued, the Agency shall give Complainant a notice of the right to submit evidence in support of a compensatory damages claim, within forty-five (45) calendar days of the date Complainant receives the Agency’s notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date that the Agency receives Complainant’s claim for compensatory damages. Thereafter, the Agency shall issue a final decision pursuant to 29 C.F.R. § 1614.110(b) 5. 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 of the Agency’s decision on compensatory damages, and evidence that the corrective action has been implemented. 2020004323 7 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. POSTING ORDER The Agency is ordered to post at its the Agency’s Metropolitan Detention Center facility in Brooklyn, New York copies of the attached notice. After being signed by the Agency’s duly authorized representative, copies of the notice shall be posted by the Agency within thirty (30) calendar days of the date that this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notice 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 (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. 2020004323 8 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. 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 July 20, 2021 Date