0120090174_Litwin
02-27-2009
Robert S. Litwin, Complainant, v. Charles E. Johnson, Acting Secretary, Department of Health and Human Services, Agency.
Robert S. Litwin,
Complainant,
v.
Charles E. Johnson,
Acting Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120090174
Agency No. HHSCMS01942008
DECISION
On October 14, 2008, complainant filed an appeal from the agency's
September 26, 2008 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant (then
66 years old) was employed as a Health Insurance Specialist, GS-107-13,
in the Division of Correspondence Management, Strategic Operations Group,
Office of Strategic Operations and Regulatory Affairs (OSORA), Centers
for Medicare and Medicaid Services in Baltimore, Maryland.
Complainant alleges that his coworker (C1, 29 years old) began harassing
him and subjecting him to a hostile work environment in May 2005,
when he was preparing to conduct a training session in Philadelphia.
He states that C1 was supposed to give him information that he needed
for his preparation. Despite his requests, C1 allegedly purposely
waited until the last minute to provide him with the information, and
the information provided was purposefully inadequate, which resulted in
complainant not being prepared for the training presentation. Complainant
reported this incident to a supervisor, who discussed the event with C1.
No further action by management was taken.
In September 2007, complainant was conducting a training session
in Chicago at which C1 was present. C1 interrupted complainant's
presentation on two occasions and corrected him in front of the class
in what complainant describes as a demeaning and condescending way.
Complainant and C1 had presented the materials numerous times before, and
all of the content was agreed upon by both. Complainant alleges that C1
corrected him to make the class question his competence and capabilities.
A supervisor witnessed this event, and an individual sitting in the class
approached the supervisor to tell her how awkward and inappropriate
C1 was towards complainant. As a result, the supervisor told C1 she
acted inappropriately. No further action by management was taken.
In October 2007, C1 took it upon her own initiative and without
supervisory approval to change complainant's designation in the OSORA
newsletter from "Senior Editor" to "Editor." C1 stated that she decided
unilaterally that complainant did not deserve the title of Senior Editor.
Complainant stated that he was subsequently subjected to embarrassment
and ridicule by individuals who thought he was demoted. A supervisor was
notified of the change and said to another supervisor in an email "[C1]
has done it again," referring to C1's ongoing harassment of complainant.
The supervisor ordered that complainant's title be restored. No further
action by management was taken.
Management officials acknowledged that C1 harassed complainant.
For example, a management official stated that she observed that
complainant would often extend courtesies to C1, despite C1's treatment
of complainant. On one occasion, after complainant held a door open
for C1, the management official observed C1 telling complainant that
she did not want complainant opening doors for her or assisting her
in any way, and that complainant annoyed her. The management official
did not address C1. Instead, the management official told complainant
to stop being courteous to C1 including saying "hello" in the morning.
The management official further told complainant not to talk to C1 unless
it was work related. Additionally, C1 would frequently inform management
officials that complainant "annoyed" her and that she did not like him.
Management did not to respond to C1's statements.
Beginning in November 2007, and continuing, complainant alleges that the
C1 made offensive comments to him regarding his age. Specifically, C1
said: "You stink. You smell like cigarettes and old people"; "Why are you
still here? You've been here long enough. You should give someone else a
chance"; "You've been here since the dinosaurs"; and "I can't stand you.
Why don't you just leave?" Complainant alleges that C1 made these remarks
because she heard that complainant was thinking about retiring and C1
wanted to ensure that complainant knew he was not wanted. Complainant
admits that he did not report these comments to management officials.
He explained that after reporting the other incidents of harassment,
he did not want to go to management with these comments.
On March 6, 2008, after a supervisor became aware that both complainant
and C1 intended to pursue the EEO process, complainant was issued a
Direct Order not to talk to C1 unless it was work-related. The order
stated that he would be subjected to disciplinary action, including
removal from federal service, if he did not comply. Complainant was
told that C1 also received a Direct Order, but complainant later found
out that C1 was only issued a "Guidance Letter" that gave her guidance
on how to talk to others.
On April 23, 2008, complainant filed a formal EEO complaint of
discrimination on the basis of age (D.O.B.: October 12, 1941) when:
1. In or around May 2005, C1 refused to meet with him prior to a training
session that they were scheduled to present together at the Centers for
Medicare and Medicaid Services (CMS) Philadelphia Regional Office;
2. In or around September 2007, C1 interrupted him and corrected him twice
while he was making a presentation at the CMS Chicago Regional Office;
3. In or around October 2007, C1 removed his designation as "Senior
Editor" from the OSORA Correspondence Newsletter;
4. Beginning around November 2007 and continuing, C1 made unwelcome
comments such as:
a. "You stink. You smell like cigarettes and old people";
b. "Why are you still here? You've been here long enough. You should
give someone else a chance";
c. "You've been here since the dinosaurs";
d. "I can't stand you. Why don't you just leave?"; and
5. On March 6, 2008, his supervisor issued him a Direct Order stating
that he would be subjected to disciplinary action, including removal
from federal service, if he did not comply.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). 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 he was subjected to discrimination as alleged. Specifically,
the agency found that the alleged incidents were not severe or pervasive
to the point of a hostile work environment, and, in the alternative, the
agency promptly addressed all acts of harassment reported to management.
Complainant appeals that decision to the Commission.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
Harassment is actionable only if the conduct to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment. See Cobb v. Dep't of
the Treasury, EEOC Request No. 05970077 (March 13, 1997); Humphrey
v. U. S. Postal Service, EEOC Appeal No. 01965238 (October 16, 1998).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
To establish a prima facie case of hostile work environment harassment,
the complainant must show that: 1) complainant belongs to a statutorily
protected class; (2) complainant was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment, and (5) some basis exists to impute liability to the
employer, i.e., supervisory employees knew or should have known of the
conduct but failed to take corrective action. McCleod v. Social Security
Administration, EEOC Appeal No. 01963810 (August 5, 1999). The agency can
raise an affirmative defense when complainant establishes a prima facie
case, which is subject to proof by a preponderance of the evidence,
by demonstrating: (a) that it exercised reasonable care to prevent
and correct promptly any harassing behavior, and, (b) the employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise. Id.,
at Section V.
Regarding the first three prongs of the prima facie case, complainant was
66 years old at the time he filed his formal complaint, and therefore
a member of a protected class. Further, complainant was subjected to
unwelcome verbal conduct, and many of the coworker's offensive comments
were specifically related to complainant's age. Therefore, complainant
has established the first three prongs of the prima facie case.
The fourth prong of the prima facie case addresses whether the harassment
was sufficiently severe or pervasive to alter the conditions of
complainant's employment. 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 Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale
v. Sundowner Offshore Servs., 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 (March 19, 1990).
We disagree with the agency that the alleged incidents did not have
the purpose or effect of unreasonably interfering with complainant's
work performance. Quite the contrary, a reasonable person would find
that the cumulative effect of the coworker's actions created a hostile
work environment. Complainant alleged that the harassment culminated
in severe stress to the point that he had to seek the assistance of a
counselor, take prescription medication, and it severely interfered with
his work performance. It is not surprising or unreasonable to expect
that such prolonged, inappropriate behavior, especially the offensive
remarks regarding complainant's age, would interfere with an individual's
work performance. The numerous offensive comments compounded with
C1's attempts to bring into question complainant's competence during a
presentation, sabotage his trainings, and change his newsletter title
designation are sufficiently severe or pervasive to satisfy the fourth
prong of the prima facie case. Therefore, complainant has established
that a hostile work environment existed.
Once it has been determined that complainant established the first
four prongs of the prima facie case for a hostile work environment,
the analysis turns to the basis for imputing liability to the agency,
i.e., supervisory employees knew or should have known of the conduct but
failed to take corrective action. The agency asserts that management
acted effectively. Further, the agency asserts that complainant did
not notify management about the offensive and discriminatory comments
based on his age, and therefore they should not be liable.
The record reveals that management observed much of the harassment,
and complainant informed management about many of C1's harassing acts.
However, complainant admits that he did not notify management about
the offensive and discriminatory comments based on his age, or that
he thought C1's harassment was because of his age. This is essential,
because complainant failed to put management on notice that there was an
EEO violation that needed to be addressed. Based upon the information
complainant provided to management and management's own observations,
management officials were under the impression that C1's harassing conduct
was because of C1's personality issues, and was not made aware that the
harassment was due to discriminatory animus towards complainant's age.
Under our laws, an agency is only liable for failing to addressed alleged
harassment if they aware that it is based on a protected EEO basis.
Therefore, the agency cannot be found liable for failing to act under
our regulations.
Retaliation
While complainant did not specifically allege retaliation as a basis,
complainant's claim 5 would be more appropriately analyzed as a claim
of retaliation. Complainant alleges that after it became clear that
both he and C1 intended to pursue the EEO process, his supervisor issued
him a Direct Order not to talk to C1 unless it was work related, and
was notified that failure to follow the Direct Order would result in
discipline. In contrast, C1 was only issued a "Guidance Letter" which
gave her guidance on what tone of voice to use when talking to others.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Here, complainant engaged in protected activity by making it known
that he intended to pursue the EEO process because of C1's harassment.
The management official admits that she issued the Direct Order after she
became aware that complainant and C1 intended to pursue the EEO process
because of a disagreement. We find that the issuance of the Direct
Order to complainant, compounded by the fact that C1 was only given a
"Guidance Letter," is reasonably likely to deter an individual from
pursuing the EEO process. Therefore, we find that retaliation existed.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
agency's finding that liability for the hostile work environment cannot
be imputed to the agency. However, we find that the record establishes
that complainant was subjected to reprisal discrimination when he was
issued a Direct Order. The agency must comply with the order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall expunge complainant's personnel records to
ensure that the Direct Order is not reflected. Additionally, the agency
shall take steps to ensure equitable treatment amongst all employees by
management officials, and to ensure that management does not engage in
activity that is reasonably likely to deter an individual from engaging
in the EEO process.
2. Within sixty (60) calendar days of the date that this decision
becomes final, the agency shall provide all management officials at
their Baltimore, Maryland facility with at least sixteen (16) hours of
EEO training regarding their obligations and responsibilities under the
federal employment anti-discrimination laws, paying particular attention
to harassment and retaliation.
3. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. 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 the agency's employ, the agency shall
furnish documentation of their departure date(s).
4. The agency shall post the attached notice, as more fully set forth
in the "Posting Order" below.
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 (G0900)
The agency is ordered to post at its Baltimore, Maryland, facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 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.
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
February 27, 2009
Date
2
0120090174
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
9
0120090174