FREDERICK J. CHEEKS, COMPLAINANT, v. JOHN M. MCHUGH, SECRETARY, DEPARTMENT OF THE ARMY, AGENCY. Appeal No. 0120091345 Agency No. ARFTCAMP07SEP03398 Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the agency's January 5, 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 Plumber, WG-4206-9, at the Agency's Department of Public Works, Maintenance Division in Ft. Campbell, Kentucky. On September 19, 2007, Complainant filed the instant formal complaint alleging that he was subjected to harassment and a hostile work environment on the bases of race (African-American), color (black), and in reprisal for prior protected activity, mainly by his first-level supervisor (Caucasian) ("S1"), when: a. on June 25, 2007, he was threatened with disciplinary action after following directions that were previously stated; b. on June 26, 2007, he was sent alone to accomplish a task that required two employees, and co-workers in the shop were instructed not to assist him; c. on June 26, 2007, he was made to perform the work of another co-worker, while that co-worker was present; d. on June 27, 2007, he was asked to sign a blank assessment form; e. on June 27, 2007, he was asked to work over six feet off the ground with no additional personnel present for safety reasons, and personnel were instructed by S1 not to assist him with a potentially unsafe task; f. on June 28, 2007, he was asked to sign a letter describing an event about which he knew nothing; g. on June 28, 2007, he was reprimanded for not answering his radio, while S1 was aware that Complainant's radio was only working intermittently; h. on August 13, 2007, he was falsely accused of flooding an entire building and was subjected to verbal abuse; i. on August 13 and 15, 2007, he became aware that S1 was attempting to coerce others to magnify minor incidents and make negative statements against Complainant when, in two separate meetings, Complainant's performance was falsely presented as poor and options were discussed for management to take corrective action, including an option of coercing him to resign; j. on August 15, 2007, he was the subject of false Interactive Customer Evaluation (ICE) reports concerning his performance; k. on August 15, 2007, the work he had previously performed was deliberately and maliciously sabotaged by a co-worker, by the direct instruction and orchestration of S1; l. on August 16, 22 and 23, 2007, he was verbally harassed by S1 while performing his duties; m. on August 20, 22 and 23, 2007, he was verbally abused by S1; n. on August 20 and 21, 2007, he was the subject of false work tickets for jobs that were created for him to perform; o. on August 22, 2007, he was subjected to a created condition that caused physical harm to him; p. on October 19, 2007, he was taunted and teased by S1's laughing and mocking directed toward him; q. on January 15, 2008, [named co-worker (CW1)] allegedly harassed him by wrongly trying to make him shake his hand and by making inappropriate comments to him that he should forget about pursuing the incidents of harassment and "let bygones be bygones;" and r. on January 15, 2008, he was sent to work on a faucet unit, even though his supervisor knew the job that had been abandoned by another plumber because the unit was actually incapable of being fixed without total replacement.1 As remedies for the harassment, Complainant requested reassignment from his position under S1's supervision; have management direct S1 to attend anger management classes; and a payment in the amount of $300,000 for pain and suffering. At the conclusion of the investigation, Complainant was provided with a copy of the 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). In its January 5, 2009 final decision, the Agency found that the weight of the evidence supported Complainant's claim that he had been subjected to ongoing harassment based on his race and color. In addition to the numerous incidents cited by Complainant, evidence was also uncovered during the investigation, that racial epithets were used in the workplace. A number of Complainant's coworkers submitted affidavits indicating S1 had made racially charged comments on different occasions. For example, S1 was reported to have said (outside of Complainant's presence) that, "he didn't have anything against Blacks, there were a few niggers he liked."S1 admitted that he and other employees had used the word "nigger" in the past before he became a supervisor, but denied this language was directed at Complainant and asserted no one was offended at the time. Although finding that Complainant's claim of racial harassment was supported, the Agency found that it had no liability for the harassment committed by S1 because management took prompt remedial action when Complainant's allegations were bought to management's attention. Specifically, the Agency asserted that it immediately initiated an investigation and reassigned Complainant to a different shop away from the supervision of S1; following the findings of the investigation, it removed S1 from his supervisory position and directed him to attend Human Resources training which encompasses EEO rights; and it posted several policies in the workplace addressing harassment and behavior in the workplace, and advised employees of the avenues of redress if they felt subjected to or observed harassment in the workplace. The Agency asserted that, by these actions, it satisfied its duty to investigate the allegations promptly and thoroughly by putting an end to the harassment, and ensuring that the harassment would not recur. The Agency stated that S1 did not have any further contact with Complainant and there have been no further incidents of harassment. Therefore, the Agency determined that it was not liable for S1's discriminatory harassment and was not responsible for providing Complainant with any remedial relief. The instant appeal followed. ANALYSIS AND FINDINGS The Commission determines that, in the instant appeal, the Agency's finding that Complainant was subjected to ongoing harassment by S1 on the basis of his race and color is not at issue. The instant appeal focuses, instead, on the Agency's determination that it was not liable for the harassment and, therefore, was not responsible for providing Complainant with any remedial relief. In the context of supervisory liability, employers are subject to vicarious liability for unlawful harassment by supervisors. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. Where, as in this case, harassment does not result in a tangible employment action, the employer may prove an affirmative defense comprised of two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, id.; Burlington Industries v. Ellerth, Id. The record reflects that Complainant's second-level supervisor, S2, with Complainant's consent, immediately moved Complainant into another shop while he conducted an investigation of the harassment allegations; and as a result of the investigation, S1 was removed from his supervisory position. However, on appeal, Complainant contends that S1 continued to harass him by repeatedly calling in plumbing work orders for Complainant to his new shop (the industrial maintenance shop) and by repeatedly "taunting" him. Complainant asserted he complained about the continuing harassment to S2, who said he would have "a talk" with S1. However, the harassment continued. Complainant also alleged that he reported to S2 that he was taunted and harassed by a several coworkers who were friends with S1. Complainant alleges that after S2 retired, his replacement attempted to force Complainant back into the plumbing shop, where S1 continued to work, until the union intervened. Finally, Complainant argues that the hostile work environment and its aftermath "have created extreme painful results in my physical conditions. I now suffer from extreme high blood pressure and hypertension due to extreme due to extreme stressful conditions I encountered at Ft. Campbell."Complainant provided medical documentation and a statement from his wife that suggests links between the harassment and several medical conditions, including anxiety, depression and insomnia. We find, given the present record, that the Agency's actions upon learning of the discriminatory harassment constituted an insufficient attempt to remedy the situation. The record reflects that although Complainant was removed from S1's supervision, S1 and his friends have continued to harass Complainant. Complainant has alleged that he reported this harassment to management but it has not stopped. Moreover, Complainant has produced evidence of physical and emotional harm he has suffered as a result of the continuing harassment. The Agency is under an obligation to do "whatever is necessary" to end harassment, to make a victim whole, and to prevent the misconduct from recurring. See Enforcement Guidance; Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (stating that "remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur"). Taking only a stop-gap remedial action does not absolve the Agency of liability where that action is ineffective. SeeLogsdon v. Department of Agriculture, EEOC Appeal No. 07A40120 (February 28, 2006). Accordingly, as the record suggests that the Agency's actions have neither corrected the effects of the discriminatory harassment on Complainant nor stopped it from recurring, the Agency has not satisfied the element of its affirmative defense, and we find that it is liable for the harassment of complaint. The Agency's finding on the issue remedies is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date that this decision becomes final: 1. The Agency shall take all necessary steps to ensure that Complainant has no contact with S1, and provide him with a designated management official to inform if subsequent acts of alleged harassment occur by S1 or by other individuals on his behalf. 2. The Agency shall provide a minimum of sixteen (16) hours of training on management's obligations under Title VII, particularly on the issue of harassment, for the supervisors and managers in the plumbing shop as well as in the work area where Complainant is currently assigned. 3. The Agency shall consider taking appropriate additional disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of the departure date. 4. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of the right to submit evidence in support of a compensatory damages claim, within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date that the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall issue a final decision pursuant to 29 C.F.R. § 1614.110(b) 5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's decision on compensatory damages, and evidence that the corrective action has been implemented. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - - not to the Equal Employment Opportunity Commission, Office of Federal Operations - - within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. POSTING ORDER The Agency is ordered to post at its Fort Campbell, Kentucky facility copies of the attached notice. After being signed by the Agency's duly authorized representative, copies of the notice shall be posted by the Agency within thirty (30) calendar days of the date that this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notice to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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. See29 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. See29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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. See29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 (R0610) 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 (Z0610) 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 1, 2012 1. The record reflects that claims p, q and r were later amended to the instant formal complaint.