01975321
08-28-2000
Theresia L. Logan, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Theresia L. Logan v. Department of the Army,
01975321
August 28, 2000
.
Theresia L. Logan,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01975321
Agency No. 93-10-0005
Hearing No. 120-94-5680X
DECISION
INTRODUCTION
On June 27, 1997, Theresia L. Logan (complainant) timely initiated an
appeal to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision of the Secretary, Department of Army (agency),
received on June 11, 1997. Complainant alleged that the agency violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The Commission accepts this appeal in accordance with 64
Fed. Reg. 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether the agency took prompt, remedial measures
in response to complainant's allegations of sexual harassment.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the final agency decision is
erroneous in two respects. First, the FAD stated that the Department of
Defense Office of Complaint Investigations (DoDOCI) recommended a finding
of no discrimination. Complainant notes that the DoDOCI investigator
concluded that complainant had established sexual harassment, and
recommended that complainant's complaint be sustained and corrective
action be taken. Second, the FAD stated that the findings and conclusions
of the EEOC Administrative Judge (AJ) were accurate and supported by
the record. Complainant argues that the AJ's findings and conclusions
are not accurate or supported by the record because: (1) the record
demonstrates that the agency had actual knowledge of the harassment
in 1990 when complainant complained to an agency official; and (2) the
agency knew or should have known about the coworker's behavior because
complainant advised her immediate supervisor on an ongoing basis and no
corrective action was taken.
The agency contends that the AJ's findings are accurate and supported by
the record. First, the agency argues that complainant failed to prove
that it unlawfully discriminated against her because her own testimony
illustrated that she did not speak with her immediate supervisor about
being sexually harassed. Further, the agency argues that once it was made
aware of complainant's allegations, it took immediate and appropriate
corrective action.
Complainant, a Training Specialist, GS-1712-12, School of Military
Packaging Technology (SMPT), U.S. Army Aberdeen Proving Ground
Support Activity, Aberdeen Proving Ground, Maryland, filed this formal
complaint on September 10, 1993. Complainant alleged discrimination
based on sex (female) when she was subjected to a hostile work
environment due to unwelcome verbal and physical conduct of a sexual
nature by a coworker. Following an investigation of this complaint,
the agency informed complainant that she could request either an EEO
administrative hearing or a final agency decision (FAD) based on the
existing record. Complainant requested-a formal hearing, which was held on
January 23, 1995. The AJ issued his recommended decision (RD) on May 12,
1997, finding no discrimination. Thereafter, the agency issued a final
agency decision (FAD), adopting the AJ's RD.
In his RD, the AJ found that the coworker's actions from 1984 to 1993
were increasingly unwelcome by complainant, and constituted verbal
and/or physical conduct of a sexual nature. Further, the AJ found that
the coworker's conduct, taken as a whole, was sufficient to establish
that the alleged harassment was based on sex and had the effect of
unreasonably interfering with complainant's work environment and/or
created an intimidating, hostile, or offensive work environment. The
AJ found that prior to June 1993, complainant had not advised the
agency's management that she considered the coworker to be creating
a hostile work environment. Accordingly, the AJ found that the agency
was not liable for the sexual harassment because as soon as complainant
formally brought these matters to the attention of the former Chief,
Department of Academic Operations, GM-14, (Responsible Official 1, RO 1)
(male) he took immediate steps to remedy the situation.<1>
ANALYSIS AND FINDINGS
In order to prevail on a claim of sexual harassment, complainant must
show that: (a) she was subjected to unwelcome conduct; (b) the unwelcome
conduct was related to her gender; (c) the harassment had the purpose
or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment;
and (d) 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). Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65 (1986); 29
C.F.R. �1604.11(a)(d)(1995); Wibstad v. USPS, EEOC Appeal No. 01972699
(August 14, 1998); McCleod v. SSA, EEOC Appeal No. 01963810 (August 5,
1999).
It is undisputed that complainant established a prima facie case
of hostile environment sexual harassment. Specifically, the record
establishes that soon after complainant's employment with the agency
began in April 1984, the coworker subjected complainant to unwelcome
verbal and physical conduct of a sexual nature, on an ongoing basis,
which unreasonably interfered with complainant's work performance and
created an intimidating, hostile, and offensive work environment. This
hostile environment took the form of constant sexual comments and
sexual references to complainant; constant telephone calls; sending
complainant gifts, flowers, letters, and cards; unannounced appearances at
complainant's home and the airport; spreading rumors about complainant's
alleged sexual orientation; reporting dreams and sexual fantasies to
complainant; intentionally bumping into complainant; and staring at her.
An employer is liable for such hostile environment sexual harassment
when it "knew, or upon reasonably diligent inquiry should have known,"
of the harassment. EEOC Policy Guidance on Current Issues of Sexual
Harassment at 23 (March 19, 1990); Yates v. Avco Corp., 819 F.2d 630,
636 (6th Cir. 1987); see also Vinson, 477 U.S. at 62-67. The issue here
concerns whether the agency knew or should have known of the harassment
and failed to take prompt remedial action. See 29 C.F.R. � 1604.11(d);
Katz v. Dole, 709 F.2d 251 (1983) (plaintiff may prove knowledge by
showing that complaints about harassment were lodged with employer or that
harassment was so pervasive that employer awareness may be inferred). It
is undisputed that complainant reported the harassment to RO 1 in early
June 1993. Complainant subsequently submitted a list of incidents which
had occurred between her and the coworker, as well as a list of matters
concerning the coworker which she wanted addressed. RO 1 then met with
the coworker and discussed with him the matters which complainant brought
to his attention. As a result, on June 11, 1993, RO 1 had the coworker
sign a memorandum indicating that he would not engage in certain acts,
including gift giving, telephone calls, conversations that are not work
related, physical contact, and threats or harm. Complainant testified,
however, that subsequent to the signing of the agreement, the coworker
deliberately bumped into her in the hallway. Accordingly, RO 1 met
with the coworker a second time, on September 16, 1993, discussed
the importance of professional behavior and instructed the coworker
to avoid either verbal or physical gestures or threats. RO 1 also had
the coworker moved out of the work area near complainant. Complainant
testified that she did not have any hostile contact with the coworker
following the bumping incidents in July 1993. Based on this evidence,
the AJ found that the agency was not liable for the sexual harassment
because, as soon as complainant brought the matter to RO 1's attention,
he took immediate steps to remedy the situation.
Complainant contends on appeal, however, that the agency knew or should
have known of the harassment prior to June 1993. First, complainant
alleges that SMPT had actual knowledge that the coworker was sexually
harassing complainant in 1990, when she complained to the then Dean
of SMPT (male) (now retired) on two separate occasions of the hostile
environment to which she was being subjected. Complainant testified that
she informed the Dean of the harassment in the spring of 1990, shortly
before the two of them traveled to California to provide training. She
stated that she told the Dean that the coworker was constantly harassing
her, that the harassment was of a sexual nature, and that it was very
difficult for her to work. Complainant further testified that she became
upset when the Dean told her that if she was so unhappy there, she should
just leave. In addition, complainant testified that she brought the matter
up again during their trip to California and that the Dean told her she
"should leave and move on." We note that another SMPT employee, the
Training Specialist Team Leader, GS-13, (the TSTL) (male) corroborated
complainant's testimony. The TSTL testified that complainant apprised
him of her complaints to the former Dean at the time she made them.
Complainant also argues on appeal that SMPT knew or should have known
about the coworker's behavior because complainant advised her immediate
supervisor (RO 2) (female) of the harassment on an ongoing basis and
no corrective action was taken. During the course of the fact-finding
conference, complainant testified that she informed RO 2 of most
of the incidents concerning the coworker "not so much as telling a
supervisor, but just to get it off my chest, just to blow off steam
about it." Complainant further testified that although she and RO 2 did
not talk about the coworker's behavior in terms of sexual harassment,
she did advise RO 2 of the gifts and flowers that the coworker sent. At
the EEOC hearing, complainant testified that RO 2's response was that
if complainant reported these incidents, nobody would believe her. In
addition, RO 2 related information on her own experience being harassed
and beaten by a man she knew, along with the "sordid details of the
police involvement." The TSTL testified that complainant apprised RO
2 of incidents that had occurred with the coworker "throughout all the
time that she was her supervisor." The AJ found that although complainant
mentioned her dissatisfaction with the coworker's conduct to RO 2 prior to
June 1993, complainant did not tell or infer to RO 2 that she considered
the coworker's conduct to be creating a hostile work environment which
amounted to sexual harassment. He further found that complainant's
conversations with RO 2 "were not as an employee with a supervisor, but
rather as a confidant." Complainant argues that even if this is true,
RO 2 is not relieved of her duty to take prompt and remedial action upon
being told of the coworker's inappropriate behavior.
The AJ also found that RO 1 testified that both the former Dean and
RO 2 informed him that prior to their discussion of complainant's
allegations in June 1993, they were unaware of the details of
complainant's charge that the coworker had been creating a sexually
hostile working environment. Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405(a)), all post-hearing
factual findings by an administrative judge will be upheld if supported
by substantial evidence in the record. Substantial evidence is defined as
"such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Universal Camera1 Corp. v. National Labor
Relations Board, 340 U.S. 474 , 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman - Standard Co. v. Swint, 456 U.S. 273 ,
293 (1982). Our review of RO 1's testimony reveals, however, that
this finding is not supported by substantial evidence. RO 1 testified
that he did not expressly ask either RO 2 or the former Dean whether
complainant had communicated any of these problems before, and that
he did not know whether complainant had spoken to either of those
individuals about these specific complaints. Complainant's testimony
that she reported the harassment to the then Dean of SMPT in 1990 is,
therefore, unrebutted. Furthermore, the TSTL testified that complainant
informed him of her complaint to the Dean at the time the complaint was
made, lending further credence to complainant's testimony. Accordingly,
we find that the agency knew of the coworker's sexual harassment of
complainant in 1990 and that it failed to take prompt, remedial action.
As for complainant's complaints to RO 2, we find that these complaints
should have prompted' some type of "reasonably diligent inquiry." Yates
v. Avco Corp., 819 F.2d at 636. Although the AJ found that complainant
merely mentioned her "dissatisfaction" with the coworker's conduct to
RO 2, we find that the record establishes that complainant provided
RO 2 with enough information that RO 2 should have made some sort of
inquiry. Complainant provided unrebutted testimony during the course
of the fact-finding conference that she informed RO 2 of most of the
incidents concerning the coworker. Although RO 2's own testimony at
the fact-finding conference was evasive, in that she was unable to
remember details or provide even general information regarding time
frames, she did admit to knowing that complainant was distraught over
the coworker's treatment of her and that complainant expressed that
the coworker's conduct was offensive and interfering with her ability
to work. Furthermore, complainant testified that she informed RO 2 of
the flowers and gifts from the coworker and that RO 2 told her about
a situation where she (RO 2) was harassed and beaten by a man that she
knew. In addition, the TSTL testified that complainant apprised RO 2 of
the coworker's behavior throughout the time that RO 2 was complainant's
supervisor, from September 1990 through January 1994. Thus, although
complainant and RO 2 may not have discussed the coworker's behavior in
strict sexual harassment terms, we find that RO 2 had enough information
to at least prompt some form of inquiry.
RO 2 was aware of the unwanted gifts and flowers and knew that
complainant viewed the coworker's conduct as offensive and interfering
with her ability to work. It is clear that RO 2 knew there was a
problem between complainant and the coworker or she would not have
related her own harassment story to complainant. We also note that not
only did RO 2 fail to make any sort of inquiry into this situation,
but she actively discouraged complainant from reporting the problem to
other management-level employees. Accordingly, we find that RO 2 had
constructive knowledge of the sexual harassment to which complainant
was being subjected. See Van Zant v. KLM Royal Dutch Airlines, 80
F.3d 708 , 715 (2nd Cir. 1996) (knowledge of harassment may include
constructive notice, i.e., management should have known); Andrews
v. City of Philadelphia, 895 F.2d 1469 , 1487 (3rd Cir. 1990) (employer
liable if plaintiff proves that management-level employees had actual
or constructive knowledge about the existence of a sexually hostile
environment and failed to take prompt and adequate remedial action). Given
the former Dean's actual knowledge of the sexually hostile environment
and RO 2's constructive knowledge, we find that the agency failed to
take prompt, remedial action and is liable for the sexual harassment
that complainant endured.
In order to remedy the discrimination, the agency is instructed to provide
the corrective action as outlined in the order below. The Commission
notes that complainant raised a claim for compensatory damages for the
harassment she endured. The Commission determines that complainant, as
a victim of harassment, is entitled to any pecuniary and non-pecuniary
losses that she suffered which can be attributed to the incidents of
harassment occurring after November 21, 1991, the date of the enactment
of the Civil Rights Act of 1991. See West v. Gibson, 119 S. Ct. 1906
(1999). Inasmuch as the record here does not clearly specify what
pecuniary and non-pecuniary losses are attributable to these incidents
of harassment, the Commission finds that a remand to the Hearings Unit
on that issue, as outlined below, is warranted.<2>
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the agency's final decision.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) The agency shall take whatever actions it deems necessary, including
but not limited to the actions set forth below, to ensure that neither
complainant nor any other employee is subjected to sexual harassment in
the future.
(2) The agency shall restore to complainant any sick or annual leave she
was compelled to take in direct response to the hostile work environment
caused by the sexual harassment. Complainant may have also taken sick
or annual leave in avoidance of the hostile work environment, for which
she should be reimbursed.
(3) The agency shall conduct training for all employees at the School
of Military Packaging Technology at the U.S. Army Aberdeen Proving
Ground Support Activity addressing the agency's prohibition on sexual
harassment. The coworker found to have harassed complainant shall attend
this training. All supervisory and managerial employees at the Activity
shall also be trained regarding these employees' responsibilities under
equal employment opportunity law. The training shall place special
emphasis on prevention and elimination of sexual harassment. The agency
shall post copies of its sexual harassment policy at the facility.
(4) The agency shall post the attached Notice in accordance with the
directive below.
(5) Complainant may be entitled to back pay if she used leave without
pay to avoid the hostile environment. The agency shall determine the
appropriate amount of back pay (with interest, if applicable) and
other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no
later than sixty (60) calendar days after the date this decision become:
final. The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. - If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue
a check to the complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision. "
(6) The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC field office.<3>
Thereafter, the administrative judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue
a final action in accordance with 29 C.F.R. � 1614.110 within forty (40)
days of receipt of the administrative judge's decision. The agency shall
submit copies of the decision of the Administrative Judge and the final
agency action to the Compliance Officer at the address set forth below.
(7) 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 evidence that the corrective action
has been taken.
POSTING ORDER (G1092)
The agency is ORDERED to post at its U.S. Army Aberdeen Proving Ground
Support Activity 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified
and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 28, 2000
__________________
Date
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e 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, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Army, U.S. Army Aberdeen Proving Ground Support
Activity, Aberdeen Proving Ground, Maryland (hereinafter, the facility)
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The facility was found to have violated Title VII when an employee
was subjected to sexual harassment. The facility was ordered to take
preventative steps to ensure that no employee is subjected to sexual
harassment in the future, including providing training to all employees
at the facility on the agency's prohibition on sexual harassment and to
all supervisory and management employees on their responsibilities with
regard to prevention and elimination of sexual harassment. In addition,
the facility was ordered to reimburse the individual for any leave used
or pay lost as a result of the harassment and to pay proven compensatory
damages and reasonable attorney's fees.
The facility 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
1RO 1 is now the Dean of SMPT.
2See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993) for the type of evidence needed to establish pecuniary and
non-pecuniary losses and their causal relationship to the discrimination.
3The record reflects that complainant has specifically requested
compensatory damages as a form of relief in this matter.