01972435
12-30-1998
Steven J. Muller, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Steven J. Muller v. Department of the Army
01972435
December 30, 1998
Steven J. Muller, )
Appellant, )
) Appeal No. 01972435
v. ) Agency No. 95-10F0110
) Hearing No. 260-96-8082X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of the Age Discrimination in Employment Act (ADEA) of
1967, as amended, 29 U.S.C. �621 et seq., and 29 C.F.R. ��1614.101(b)
and 1614.103(a). The Final Agency Decision (FAD) was issued on January
3, 1997. The appeal was received by the Commission on February 3, 1997.
Accordingly, the appeal is timely, (see 29 C.F.R. �� 1614.402(a)and
1614.604(b)), and is accepted in accordance with EEOC Order 960.001,
as amended.
ISSUES PRESENTED
The issues presented herein include: (1) whether the Commission exercises
jurisdiction over reprisal actions that are based solely on prior ADEA
EEO activity; (2) whether appellant is entitled to attorney's fees;
and (3) whether despite taking prompt remedial measures in preventing
further harassment from occurring, the agency is, nevertheless, liable
for reprisal discrimination.
PROCEDURAL HISTORY
Appellant sought EEO counseling on September 25, 1995, and filed his
formal EEO Complaint on November 11, 1995. The agency conducted an
investigation and issued its report on March 7, 1996. Appellant requested
a hearing before an administrative judge (AJ) which took place on July
23, 1996. On November 25, 1996, the AJ issued her decision finding
that the preponderance of the evidence supported a finding of reprisal
discrimination (prior ADEA EEO activity). However, the AJ found that the
evidence also showed that the agency was not liable because it responded
with immediate and appropriate corrective action. The AJ, nevertheless,
recommended that the agency: (1) conduct sensitivity training; (2)
award attorney's fees; and (3) notify employees, through posting at
its Saint Paul, Minnesota facility, that the agency had discriminated
against an employee because he had participated in EEO activity.
The agency adopted the AJ's finding that appellant was subjected to a
hostile work environment due to his prior EEO activity. In addition,
the agency agreed with the AJ's determination that the agency was not
liable because management took prompt and effective action to remedy
the situation. However, the agency rejected the AJ's recommendation
for training, attorney's fees and posting, since appellant was not the
"prevailing party."
BACKGROUND
The record reveals the following:
Appellant is employed as a Deckhand, XF-5788-06, on the dredge William
A. Thompson (WAT), Maintenance Section, Mississippi River Project
Office, Construction-Operations Division, Department of the Army,
Corps of Engineers, Saint Paul, Minnesota (hereinafter the "Dredge").
The following individuals hold supervisory positions in appellant's
chain of command: (1) appellant's Shift Supervisor who holds the
position of Leverman (SS); (2) appellant's first-level supervisor who
holds the position of Second Mate (S1); (3) the Pilot and Assistant
Master to appellant's second-level supervisor (AM); (4) appellant's
second-level supervisor who holds the position of Captain (S2); (4)
appellant's third-level supervisor who holds the position of Chief of
the Maintenance Section (S3).
It is undisputed that while appellant had some difficulty with his
fellow co-workers prior to filing his EEO complaint on July 18, 1995,
tensions were increased after he filed his complaint and, as a result,
he was subjected to a hostile work environment in approximately September,
1995 and October, 1995.
The record reveals that after appellant filed his EEO complaint,
some coworkers no longer felt at ease around appellant. In addition,
according to one agency witness, the crew had a high degree of animosity
toward appellant due to their perception of what he was doing (i.e.,
taking notes on crew activities, generally hard to work with, over
confidence about winning his EEO complaint). Moreover, SS and S1 often
referred to appellant as the "EEO man" and made gestures as if they were
wearing listening devices in an attempt to mock appellant.
In addition, S3 testified that in August, 1995, he and S2 were concerned
that if appellant received money in connection with his pending EEO
complaint that it could raise costs and might negatively affect bidding
against a contractor. Appellant alleged that S2 stated to co-workers
that if appellant received a monetary award in connection with his
then-pending EEO complaint, he would not live long enough to spend it.
While denying that he made this statement, S2 testified that he may have
stated to co-workers that if appellant got money from his EEO complaint,
it could affect all employees. S2 also testified that, at the time, he
believed that all money which would go to appellant would be assessed
against the Dredge for the next fiscal year. Accordingly, that would
result in lower opportunities to bid, and, if a bid was not obtained,
then employees would be transferred out. While S2 denies that this
statement was made in a threatening manner, one co-worker testified that
he interpreted S2's statement to be threatening. Another co-worker
testified that S2 did remark that appellant may not live long enough
to spend the money, but also testified that he considered the remark
to have been made in a joking manner. S3's immediate supervisor, PM,
conducted an investigation and concluded that whatever words S2 used,
the comment was "very strong," "threatening," and "inappropriate."
On September 6, 1995, upon learning of the threatening statement made by
S2, appellant contacted an EEO counselor expressing, for the first time,
his objections to the hostility that he had received from his supervisors
and co-workers. On September 11, 1995, S3 offered appellant a temporary
assignment to the boat yard until the tension caused by rumors connected
to his complaint would ease. However, appellant declined S3's offer.
S3 then advised appellant that he would counsel the crew to put "rumors
to bed" regarding the EEO complaint.
On September 12 and 13, 1995, S3 advised the crew that any costs
connected to appellant would not be assessed against the Dredge. In four
separate meetings, S3 advised the crew that: (1) appellant filed an age
discrimination complaint; (2) they were not to consider whether or not
the complaint had merit; (3) retaliatory actions would not be tolerated;
and (4) should costs result from the complaint, they would not be assessed
against the Dredge. The counseling seemingly ended the majority of rumors
among the crew. However, the uncontroverted evidence supports the finding
that subsequent to the counseling by S3, S1 referred to appellant as
"EEO man" and gestured as if he was wearing a listening device, in front
of appellant. (H.T. p. 217) In addition, appellant testified that even
following the counseling of the crew by S3, the overt statements may
have diminished, but the bad feelings remained among the crew.
Moreover, despite the counseling, in early October, 1995, S1 prohibited
appellant from continuing to work on certain equipment without explanation
or justification. S1 notified S3 that he had decided not to let
appellant operate the equipment until the processing of his complaint
was done. Upon learning of S1's decision to remove appellant from
certain equipment, S3 told S1 to return appellant to his prior duties.
Appellant was returned to his duties shortly thereafter.
ANALYSIS AND FINDINGS
Reprisal Discrimination
The AJ found that appellant was subjected to a hostile work environment
on the basis of prior EEO activity, but that the agency was not liable
because it took prompt and corrective action. The agency adopted the AJ's
findings in this regard. We do not disturb the finding that appellant
was subjected to a hostile work environment based upon past EEO activity
and find that the record supports reprisal discrimination.
In addition, we note that it is undisputed that the relevant supervisors
and crew were aware that appellant filed a discrimination complaint
in July, 1995. Moreover, we believe the record supports the finding
that supervisory officials, in response to appellant's filing an age
discrimination complaint, made remarks which were scare tactics in
an effort to isolate appellant from the rest of crew over a period
of approximately two months. The remarks included: (1) first and
second-level supervisors, as well as others, referring to appellant as
the "EEO man" and gesturing as if they were wearing a listening device in
an effort to mock and intimidate appellant; (2) supervisors alarming the
crew with false statements that the crew would lose money, and possibly
their jobs, should appellant's EEO complaint succeed, causing animosity
towards appellant; and (3) one supervisor telling appellant, in an angry
state, that appellant should find a job elsewhere, since nobody wanted
him around.
Agency Liability
It is undisputed that the agency took prompt corrective action in response
to appellant's initial complaint regarding the harassment. According to
the AJ and the agency, the prompt remedial action taken by the agency
insulates it from liability. We disagree. Contrary to the agency's
contention, a finding that the agency took prompt remedial action is
not an automatic preclusion to agency liability when supervisors engaged
in the harassment. See Parker v. Army, EEOC Appeal No. 01943227 (June
8, 1995), recon. denied, EEOC Request No. 05950787 (April 17, 1997);
Taylor v. Army, EEOC Appeal No. 01942699 (March 7, 1996), recon. denied,
EEOC Request No. 05960405 (August 7, 1997); Green v. USPS, EEOC Request
No. 01955142 (February 5, 1998).
Under agency principles, an employer may be liable for the actions of
its supervisors, despite taking prompt remedial actions, where "the
[supervisor] purported to act or speak on behalf of the principal and
there was reliance on apparent authority, or he was aided in
accomplishing the tort by the existence of the agency relation." Taylor
v. Army, EEOC Appeal No. 01942699 (March 7, 1996), recon. denied, EEOC
Request No. 05960405 (August 7, 1997). To avoid liability for the
hostile environment, the agency must show there is no basis for imputing
liability to the employer under agency principles. Moreover, in the
absence of a showing that the agency has a strong, widely disseminated,
and consistently enforced policy against harassment, the Commission has
generally found that employees could reasonably believe that a harassing
supervisor's actions will be ignored, tolerated, or even condoned by
upper management and, accordingly, find an agency liable for hostile work
environment. See Parker v. Army, EEOC Appeal No. 01943227 (June 8, 1995),
recon. denied, EEOC Request No. 05950787 (April 17, 1997); Taylor v.
Army, EEOC Appeal No. 01942699 (March 7, 1996), recon. denied, EEOC
Request No. 05960405 (August 7, 1997); Green v. USPS, EEOC Request No.
01955142 (February 5, 1998).
In the present matter, appellant's own first and second-line supervisors
contributed to the hostile work environment. Moreover, the record
shows that S3, appellant's third-line supervisor, also contributed
to the hostile work environment by spreading false information to his
co-supervisors that a monetary award by appellant in his EEO complaint
could ultimately cause transfers and layoffs. The evidence shows that SS,
S1, and S2 all referred to appellant as the "EEO man" and mocked him by
pretending to be wearing a listening device when appellant was around.
In addition, supervisors and co-workers treated appellant with animosity
and S2 attempted to intimidate appellant with a threatening statement.
In addition, while it appears that the agency has a policy on reprisal
discrimination and hostile work environment, the agency presented no
evidence that it has a strong, widely disseminated, and consistently
enforced policy against such discrimination.
Accordingly, although the agency took prompt action to end the harassment
after appellant's opposition to said harassment, we find that SS, S1, and
S2 were all acting under apparent authority of the agency. In addition,
we believe that the record supports that S3 had actual or constructive
knowledge of the harassment and did nothing to correct the situation
prior to appellant's express opposition. We, therefore, find the agency
is liable for the hostile work environment and acts of reprisal.
Jurisdiction
In its statement in opposition to the appeal, the agency contends that
in accordance with 29 U.S.C. �633a, the Commission lacks jurisdiction
of this matter because the Government has not waived sovereign immunity
for a reprisal complaint by a federal employee when the underlying
EEO complaint is based solely on a complaint of age discrimination.
We disagree with the agency. It is well-recognized by the Commission
that reprisal claims based solely on an underlying age discrimination
claim fall under the Commission's jurisdiction. See McDaniel v. Navy,
EEOC Request No. 05970532 (June 27, 1997); Esposito v. Navy, EEOC Request
No. 05970966 (October 3, 1997); Mikus v. SSA, EEOC Request No. 05970599
(November 6, 1997); Lavoie v. Navy, EEOC Request No. 05970495 (June 27,
1997); Green v. Navy, EEOC Request No. 05970494 (June 27, 1997).
The Commission's regulations governing federal sector complaint
processing specifically prohibit retaliation for opposing any
practice made unlawful under Title VII of the Civil Rights Act of
1964 (42 U.S.C. �2000e et seq.), the ADEA, the Equal Pay Act 929
U.S.C. �206(d)) and the Rehabilitation Act (29 U.S.C. �791 et seq.) or
for participating in any stage of administrative or judicial proceedings
under those statutes. 29 C.F.R. �1614.101(b). Furthermore, Commission
regulations require agencies to process allegations of retaliation
under these statutes. 29 C.F.R. �1614.103(a). The regulations state
that complaints alleging retaliation are to be considered complaints
of discrimination for the purposes of the Commission's federal sector
complaint processing regulations. Id. In an explanatory statement
published in the Federal Register when it issued section 1614.103(a),
the Commission stated that: "Whenever any regulation in this part speaks
of a complaint of discrimination, the reference should be also read
to include a complaint of retaliation." 57 Fed. Reg. 12642 (April 10,
1992). Thus, the Commission finds that appellant properly raised a claim
of reprisal discrimination over which the Commission has jurisdiction.
Attorneys Fees Recommended
Regarding the AJ's recommendation of an award of attorney's fees, the
Commission has consistently held that Congress did not specifically
waive sovereign immunity by providing for the payment of attorney's
fees to successful ADEA claimants in the administrative process when it
enacted section 633a of the ADEA. Accordingly, attorney's fees are not
available in reprisal actions based solely on prior ADEA EEO complaints.
See Falks v. Treasury, EEOC Request No. 05960250 (September 5, 1996);
Seymour & King v. Department of Veteran Affairs, EEOC Request No. 05900257
(July 20, 1990).
For the reasons set forth above, we REVERSE the FAD, in part, and AFFIRM,
in part. We find the agency liable for reprisal discrimination in that
it subjected appellant to a hostile work environment over a period of
approximately two months. However, we affirm the agency's rejection of
attorney's fees.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall take corrective, curative, and preventive action
to ensure that reprisal discrimination does not recur, including but
not limited to providing training to the responsible official(s) at the
Department of the Army, Corps of Engineers, St. Paul District, St. Paul,
Minnesota facility in the law against employment discrimination. Within
thirty (30) calendar days of the date the training is completed, the
agency shall submit to the compliance officer appropriate documentation
evidencing completion of such training.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at the Department of the Army, Corps of
Engineers, St. Paul District, St. Paul, Minnesota 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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 (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Dec 30, 1998
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of the Age Discrimination in Employment Act (ADEA) of 1967,
as amended, 29 U.S.C. �621 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, PHYSICAL or MENTAL DISABILITY
or PRIOR EEO ACTIVITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions or privileges of employment.
The Department of the Army, Corps of Engineers, St. Paul District,
St. Paul, Minnesota, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Department of the Army, has been found to have discriminated on
the basis of reprisal (prior EEO activity) in the form of creating a
hostile work environment for a Deckhand wherein supervisory officials,
in response to his filing of an age discrimination complaint, made
remarks which were scare tactics to isolate him from the rest of the
crew over a period of approximately two months. The Department of
the Army has been ordered to take corrective action in the form of
training for the responsible official(s). The Department of the Army
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Department of the Army will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
29 C.F.R. Part 1614