0120092332
09-22-2009
Shawnine D. Sorensen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Shawnine D. Sorensen,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120092332
Agency No. IRS-08-0584-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 9, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, complainant was employed as a Tax Examining Technician, GS-05, on a full-time seasonal work schedule at the agency's Wage and Investments Division, Internal Revenue Service in Fresno, California.
On July 23, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (African-American)1, sex (female), and color (light brown) when:
1. on March 12, 2008, an on-the-job training (OJT) coach (Caucasian male;"T1") cursed at her, and also made the statement, when speaking to a trainee about getting help from complainant's husband,2 that the trainee should, "throw some cornbread [complainant's husband's] way;"
2. on March 21, 2008, T1 pointed his finger in her face and stated, "I don't help you people;"
3. on or about March 21, 2008, T1, while speaking to another employee, referred to complainant as a "fucking nigger" and a "black bitch;" and
4. in or around April 2008, T1 hit her with his arm as she walked past him.
The agency conducted an investigation into the complaint, gathering evidence as summarized below.
Incident 1: T1 cursed at her on March 12, 2008, and also made the statement, when speaking to a trainee about getting help from complainant's husband, that the trainee should, "throw some cornbread [complainant's husband's] way."
Complainant's supervisor (African American; "S1") stated that during a unit meeting, complainant told her that T1 cursed at her and was rude to her. S1 stated that she encouraged her employees "to speak to me if this had taken place." S1 stated that she also informed her employees at the meeting that no on-the-job training coach or anyone "has the right to talk to them or anyone in a rude and/or demeaning manner." S1 stated that following the unit meeting, she informed the Training Coordinator (Hispanic female;"C1") what complainant had mentioned during the meeting about T1. S1 stated that when she returned to her office, two more employees approached her with complaints about T1. S1 stated that she again notified C1 that two more employees complained about T1. S1 stated that she then informed the Department Manager (Caucasian female; "DM") about T1 cursing and being rude to everyone.
S1 further stated "the "cornbread" statement was brought to her attention at a later time when the complainant was talking further about her problems with T1. S1 stated that after complainant asked her for advice, she suggested complainant "if she feels she needs to go to the NTEU or EEO I didn't have a problem with it." S1 stated, however, complainant told her that she preferred to wait to see how DM handles the situation.
DM stated that, on March 25, 2008, she received a written statement from complainant concerning T1 cursing and being rude to her and investigated. T1 stated that on March 12, 2008, a new hire asked complainant's husband for help but that he ignored her. T1 further stated "like some other new hires before this girl he refused to help and was eating what appeared to me to be yellow corn bread muffin. I said towards and directed to the new hire, 'throw some of that cornbread muffin at him, that might get him going,' hoping he would quit ignoring her and help her with her question. My comment, while perhaps unkind, was not made with malice or discrimination." DM stated that, after interviewing employees listed by complainant as overhearing the statement, she determined that the "cornbread" statement was directed at complainant's husband, who was eating what appeared to be cornbread at the time.
Incident 2: On March 21, 2008, T1 pointed his finger in her face and stated, "I don't help you people."
DM stated that T1's team leader was asked to question T1 regarding the incident. DM stated that, according to the team leader, T1 denied making the precise statement and indicated that he made a remark to complainant to indicate that he was not assigned to help returning employees like complainant since he the OJT coach only for new employees. DM stated that the team leader issued T1 a written directive "to stay out of the complainant's unit in which he signed on April 4, 2008. [T1] also informed his team leader the complainant comes into his unit all the time, because [complainant's husband] is in the same unit. I informed [S1], to give the same verbal written directive to the complainant in order to avoid any future contact."
The team leader confirmed that T1 was not complainant's on-the-job training coach and that he was only responsible for coaching newly hired employees, while complainant was a returning seasonal.3 DM again noted that as a result of complaints received about T1 from complainant, the team leader issued T1 a written directive, dated March 27, 2008, to stay out of complainant's unit. A similar directive was also issued to complainant.
Incident 3: On or about March 21, 2008, T1, while speaking to another employee, referred to complainant as a "fucking nigger" and a "black bitch."
Regarding claim 3, complainant asserted that after a confrontation between her and T1 earlier in the day, T1 told a coworker (Mexican American female; "Coworker M") that complainant was a "fucking nigger" and a "black bitch." Complainant learned about the remarks from the coworker. T1 denied calling complainant names. In a signed statement dated June 26, 2008, Coworker M recounts T1 as calling complainant "a black bitch and an N-word." Later, in her statement made to the EEO investigator, she describes T1's comments about complainant as "stupid broad," "that Black girl," and "Black thing."
OM stated that she was unaware of the March 21, 2008 incident until she received an email from the EEO complaint investigator. OM further stated that complainant "never mentioned it in our meeting on July 22nd [2008]." Further, complainant's team leader stated that she has no knowledge of the March 21, 2008 incident.
Incident 4: In or around April 2008, T1 hit her with his arm as she walked past him.
Regarding claim 4, S1 stated "I am not aware of any incident where the complainant was hit by [T1] arm as she passed him. The Complainant did bring to my attention of [T1] entering her unit after they were both given a verbal directive in writing to stay out of each other units." S1 stated that she reported to DM what complainant had told her about T1 and S1 "had me to go out to my unit and asked my employees if they had seen [T1] entering my unit. [Named employee] said she noticed [T1] standing in the door way of the unit talking one of the employees in the unit."
OM stated that she became aware of the alleged hitting incident during the informal mediation meeting on complainant's EEO complaint. The matter was then investigated and management concluded that it was likely that T1 "brushed" complainant's arm and did not acknowledge that it happened.
At the conclusion of the agency's investigation into all four incidents, 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). In accordance with complainant's request, the agency issued a final decision on December 17, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its March 9, 2009 final decision, the agency found that complainant did not establish a prima facie case of harassment because she did not establish a nexus between the conduct complained of and her race/color or gender with regard to incidents (1), (2) and (4); and, with regard to incident (4), even if the alleged minimal physical contact occurred, it was not sufficiently severe to create a hostile work environment. With regard to incident (3), the agency noted that that the remarks, even as alleged, were not made to complainant, and further found that the evidence was not conclusive concerning whether or not the remarks were actually made as alleged. Moreover, the agency concluded that the four incidents were not sufficiently severe or frequent enough to create an offensive or hostile work environment. Finally, the agency concluded that even if complainant could established a prima facie case of discriminatory harassment by a coworker, management took prompt corrective action by separating complainant from T1 by issuing written directives to complainant and T1 to stay out of each other's unit.
On appeal, complainant argues that T1 made false statements to management about her and directed several racial epithets toward her. Complainant further states that she had a witness who was never contacted during the investigation of her allegations.
ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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).
In its final decision, the agency concluded that many of complainant's factual allegations concerning T1's conduct have been confirmed. Other employees stated that T1 frequently cursed, and witnesses confirmed the "cornbread" remark directed at complainant's husband. The agency also had sufficient evidence that T1 pointed at complainant and made the "you people" comment. While the evidence is contradictory concerning the alleged "nigger" comment, a witness did confirm that T1 called complainant a "that Black girl," "Black thing" and a "stupid broad." Another coworker stated that she was called "little girl" by T1. Finally, the agency concluded that the evidence showed that it was likely that T1 brushed complainant's arm and did not apologize or otherwise acknowledge it. Therefore, without any significant dispute of the facts, the analysis of this appeal must focus on the legal significance of this evidence.
The Commission concludes that T1 harassed complainant based on both her race and her sex.4 T1's use of racial epithets and demeaning gender based slang establishes that discriminatory animus motivated T1's conduct. The Commission does not consider words of this nature to be "mere utterances." Moreover, they occurred in conjunction with the "cornbread" and "you people" statements, which, although in other contexts are open to the interpretations accorded by the agency, are, under the circumstances of this record, more likely racially motivated. We find that T1's statements amount to a severe example of unacceptable behavior from a federal employee in a federal work environment. We conclude that a reasonable person in complainant's circumstances would have found this conduct humiliating and hostile.
Since there is no dispute that the agency was aware of the conduct at issue, it is liable for harassment unless it can show that it took immediate and appropriate corrective action. The Commission has interpreted the meaning of "immediate and appropriate corrective action" in its Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), and we disagree with the agency's conclusion that it acted appropriately and effectively.
Appropriate corrective action is a response that is reasonably calculated to stop the harassment and should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise).5 The agency's only action in this case amounted to issuing identical written directives to complainant and T1 to stay out of each other's unit. The brushing of the arm incident without acknowledgment or apology occurred in April 2008 after the directives were issued. First, since complainant's husband worked in T1's unit, and there is no evidence to suggest it was inappropriate for complainant to occasionally visit with her husband, we find that complainant was adversely affected by the directive. Second, issuing identical directives to both individuals suggests that they were equally at fault when it was T1's conduct, not complainant's, that forms the basis of this Title VII violation. Third, being admonished to stay out of complainant's unit does little to educate T1 that his behavior was in fact illegal. Fourth, it is clear from the arm brushing incident that occurred after the admonishment that T1 had not understood the consequences of his conduct towards complainant. The Commission finds that in this case, the agency, at a minimum, should have provided T1 with sufficient training to ensure that he understood why his conduct violated the agency's anti harassment policies; should have required T1 to offer complainant a formal apology; and should have considered whether and what kind of discipline would have been appropriate for T1. See Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Section V(C)(f), (June 18, 1999).
CONCLUSION
We find that the agency's response to the harassment established herein did not amount to appropriate and corrective action and was inconsistent with the detailed harassment guidance this Commission has provided to federal agencies. We conclude that the agency is liable for violating Title VII and direct the agency to comply with the ORDER set forth below.
ORDER
The agency is ordered to do the following within (ninety) 90 days of this decision becoming final unless otherwise indicated below:
(1) Determine, pursuant to complainant's request for remedial relief, if complainant wants to be reassigned to another Tax Examining Technician, GS-05 position at an alternate location. However, the agency should make clear to complainant first that if she prefers to stay in her unit, the agency will transfer T1 if he remains employed by the agency.
(2) Conduct a supplemental investigation into complainant's entitlement to compensatory damages, including providing the complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages.6 For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov). The agency shall complete the investigation and issue a final decision determining the appropriate amount of damages within 150 calendar days after this decision becomes final. The final decision shall include appropriate appeal rights.
(3) Pay complainant's costs, as associated with the processing of this case. Complainant has 30 days from the date this decision becomes final to submit a petition to recover costs, with appropriate supporting documentation. The agency has 30 days from the submission of the costs petition to issue a decision regarding costs, along with payment to complainant of the undisputed costs.
(4) Provide a minimum of eight (8) hours of EEO training, with special emphasis on the harassment, for all involved management officials still employed with the agency.
(5) Consider taking appropriate disciplinary action against the responsible management officials still employed by the agency. 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).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848, Washington, D.C. 20036. 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Internal Revenue Service facility in Fresno, California 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.
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 (R0408)
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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:
September 22, 2009
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Statements gathered during the investigation from a number of management officials and coworkers indicated that they were not aware that complainant was African American until she complained about the events at issue.
2 The record establishes that complainant's husband (Caucasian) was also an agency employee, who served as a training coach for new employees.
3 On appeal, complainant also states that T1 was never her on-the-job training coach during the 2008 season.
4 The evidence concerning complainant's color is not developed, and because a finding on this basis would not entitle complainant to any further relief, we decline to address it further.
5 Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment. See Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) ("a remedial measure that makes the victim of sexual harassment worse off is ineffective per se").
6 Complainant's response to a question concerning what harm she had suffered as a result of the harassing incidents was "mental and physical anguish in addition to suffering an asthma attack." See Complainant's affidavit at Question 20 (October 21, 2008).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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