U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120130704 Agency No. 11-00264-03217 DECISION Complainant timely filed an appeal from the Agency's October 28, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED The issues presented are whether Complainant was subjected to unlawful sexual harassment by a coworker (C1) and, if so, whether the Agency is liable for the harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Heavy Laborer, WG-3502-04, at the Facilities Maintenance Section, Roads and Grounds Maintenance Shop (Shop 71) at the United States Marine Corps Base in Quantico, Virginia. Heavy Laborers operate large riding mowers and jack hammers; remove materials such as asphalt and concrete from work sites; repair or replace roofs; move office furniture; and perform other tasks in support of organization work load and emergencies. Complainant's immediate supervisor (S1) is the Supervisor of Roads and Grounds Maintenance Shop, and her second-level supervisor is the Maintenance Repair Director (S2). Complainant has been a Heavy Laborer since 2007, and is the only woman working in her section. On August 12, 2011, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to sexual harassment when: 1. On or about March 16, 2011, a coworker (C1) came to her in the break room of Shop 71, pulled his chair up, put one of his knees between her legs, caressed her hand, and talked softly to her while telling her to go back to work; 2. In April 2011, while on a speaker phone, C1 told Complainant that he loved her while discussing leave issues; 3. On or about May 27, 2011, while outside the shop bay, C1 came up behind Complainant, put his arms under her arms, gave her a bear hug from behind, moaned, pressed his penis against her behind, grabbed her stomach, and squeezed her; and 4. On January 26, 2012, while having trouble with her credit card at a snack machine, C1 approached Complainant and a coworker and handed the coworker a dollar to give to Complainant. Complainant refused the dollar, told C1 that she did not need his "fucking money," and asked him why he did not just go away. C1 replied that he could stand wherever he wanted, to which Complainant replied, "Not around me." In an investigative statement, Complainant stated that on March 16, 2011, she stayed behind in the break room after lunch because she was a "little tired and wanted to rest for a few more minutes." Investigative File (IF), p. 162. Complainant further stated that her coworker, C1, then came into the break room, pulled up a rolling chair, placed his legs between her legs, took her hand and caressed it, and softly said that she needed to return to work. Complainant stated that she did not say anything to C1 at the time because it was an awkward situation, but C1 followed her as she left the room, all the way down to the bottom of the stairs. Complainant further stated that she felt uncomfortable in the situation, and C1's actions were unwelcome. Complainant also stated that she did not tell C1 that his conduct was unwelcome at that time because she felt intimidated because of his position, as well as by the situation. She stated that she became paranoid and "blanked out" whenever C1 was around her. Complainant further stated that she then told her union representative about the incident, but she did not go to management about the matter because the managers are good friends with C1 and would not do anything about the situation. Complainant stated that management in her section tended to protect one another, and she believed that the managers would take action against her for complaining. Complainant stated that, after she initiated her EEO claim, management moved C1 to the office next door and instructed him not to be in the same area with Complainant. However, Complainant also stated the following: I don't believe my safety was a concern to management because they moved him down the hall, and I did not know how he would react. I was afraid and did not know if he would become violent. IF, p. 163. Complainant also stated that C1 often gave her section work assignments, but she often went to her truck and waited for coworkers to come and tell her what the assignments were for the day because she did not want to be around C1. She stated that she avoided contact with C1 as much as possible. Regarding claim 2, Complainant stated that she called S1 because she needed to leave work early to take care of personal business, but S1 was not available. Complainant further stated that she then called C1 and placed the call on speakerphone because of base directives, which allowed three coworkers in the vehicle with her to hear the conversation. Complainant stated that when C1 answered her call, he called her "babe" and instructed her to fill out a leave slip. She further stated that at the end of the conversation, C1 told Complainant he loved her. Complainant stated that C1 called her "babe," "boo," and "honey," which she found sexually offensive because they undermined her position, and because she is the only female worker in the section. Regarding claim 3, Complainant stated that on May 27, 2011, she was outside the shop with coworkers waiting for a ride. She stated that C1 then came up behind her and wrapped his hands around her. Complainant stated that his arms wrapped just under her breasts, and he pulled her into him and moaned in her ear while he pressed his penis against her. Complainant further stated that C1 put his head on her shoulders and held her for a minute. Complainant stated that she was not eating or drinking anything at the time, and she told C1 that she and coworkers needed a ride to go to the other side of the base because she just wanted to get in the truck and leave. "Whenever incidents happened involving [C1], I just want to get away from the area and situation," Complainant stated. IF, p. 166. Complainant stated that she also reported this incident to her union representative. Regarding claim 4, Complainant stated that on January 26, 2012, she was at the vending machine with a coworker when C1 came in the back door and started a conversation with the coworker while she tried to get her credit card to work with the machine. Complainant stated that she became nervous when she noticed C1 was there, but she continued trying to get her card to work. She stated that C1 then pulled out a dollar bill, handed it to the coworker, and told him to give it to Complainant. Complainant stated that she told C1 that she did not need his money and asked him why he did not just go away. She stated that C1 told her that he could stand anywhere, and that made her feel unsafe because management was not doing what it should have done to protect her and provide her a workplace free of sexual harassment. Complainant also stated that C1's actions destroyed her mental health, affected her ability to concentrate on her job, and negatively affected her family. She further stated that she felt that being around C1 caused her to suffer anxiety and increased her stress levels. Complainant further stated that she sometimes had coworkers escort her to and from the restroom because it was near the office C1 worked in. Complainant also stated that, even after management moved C1 to another office, C1 rode with her work leader to the site at which she worked, which made her feel uncomfortable, anxious, and stressed. She stated that she could not do her job because she had panic attacks when he was around her. "Although management removed him from my work area, he would always find ways to come around where I was working," Complainant stated. IF, p. 170. C1 (male) stated that he is a WD-05 Shop Planner for the Roads and Grounds shop. With regard to claim 1, C1 stated that he grabbed Complainant's hand in a non-aggressive manner to show that he was not pleased with the fact that Complainant and others were still in the lunch room approximately 45 minutes after lunch was over, instead of working. C1 stated that he pulled up a chair and sat perpendicular to her left leg that was on the floor. He further stated that he then sat down and grabbed her hand. C1 stated that he spoke to Complainant in a very stern voice to let her know that she was doing things that cause her to get in trouble. He further stated that he did not pull his chair up and put his knees between Complainant's legs, nor did he caress her hand. C1 also stated that he has not grabbed male employees by the hand, but he has handled them by the arm or placed his hands on their shoulders to lead them back to work. Regarding claim 2, C1 stated that Complainant called the office on morning and asked for leave so that she could take her mother to the doctor. C1 further stated that Complainant sounded disturbed about her mother's health, and he told her to go take care of her mother. C1 also stated that he told her in a "manner of re-assurance [sic] of trust that I loved her, as a friend would tell another friend," not in a sexual context. IF, p. 188. C1 stated that he never called Complainant "honey" or "boo," but maybe called her "babe." He stated that he would call everyone "babe," men and women, as a casual greeting. Regarding claim 3, C1 stated that as he walked out of the shop bay and approached a truck, he heard Complainant mention she felt like she was choking. C1 further stated that he then came behind Complainant and performed the Heimlich Maneuver. C1 stated that he placed his hands in the center of her stomach, not near her breast, and asked Complainant if she was choking and felt okay. C1 stated that Complainant responded that she was okay, and let her go. He stated that he did not engage Complainant in a bear hug or moan and groan in her ear. C1 further stated that he did not intentionally press his penis up against Complaint, and he did not hold her for more than 10 to 12 seconds. "I may have inadvertently press [sic] my penis against [Complainant], but I did not lift up her breast because my arm where [sic] no were [sic] near her breast, and I did not moan in her ear when asking if she was alright," C1 stated. IF, p. 189. Regarding claim 4, C1 stated that on January 26, 2012, he went to the office to get some documents signed, and used the back stairwell as a short cut. He stated that he then went to the break room, where he saw a coworker in front of a soda machine trying to buy a drink with a credit card. C1 stated that he made a comment to the coworker, and as he walked into the room, he saw that Complainant was also standing at the soda machine to the right of the coworker. He stated that he then casually said "hello" to Complainant, but Complainant did not respond. C1 further stated that he said nothing else to Complainant, but she was still trying to buy a drink with the credit card. He stated that he looked directly at the coworker, pointed at him, asked if he wanted a dollar, and gave the coworker money, but the coworker asked Complainant if she wanted the dollar. C1 stated that Complainant then told him that she did not want his "fucking money" and to leave because he could not be in the break room. C1 further stated that he said that he had just as much of a right to be in the break room as Complainant, and she continued to curse at him while he and the coworker left the room. C1 stated that he did not receive any instruction from management regarding interacting with Complainant until after Memorial Day 2011. He stated that in early June 2011, management informed him of Complainant's sexual harassment allegations, and instructed him to report to Shop 32 and to avoid Complainant. C1 further stated that he did not speak to Complainant from June 2011 until the incident in January 2012. A male WG-07 Tractor Operator/Crew Leader (C2), stated that on March 16, 2011, he witnessed C1 pull his rolling chair up, slide his legs between Complainant's so close that he could have sat on her lap, and lean over and talk to her in a low voice. C2 also stated that C1's actions made him feel uncomfortable because Complainant seemed uncomfortable, as reflected by the look on her face. Regarding claim 2, C2 stated that, during this incident, he was driving the truck and Complainant was in the passenger's seat. C2 stated that when Complainant called C1, he answered the phone with, "Hey, boo." He stated that he believed C1 recognized Complainant's number because he answered the phone. C2 further stated that toward the end of the conversation, C2 told Complainant that he loved her, and Complainant paused and seemed uncomfortable. C2 stated that Complainant replied, "Okay" and then hung up the phone. Regarding claim 3, C2 stated that he saw C1 walk behind Complainant, place his arms around her stomach, place his head on her shoulder, pull her close to him, raise his arms, and moan with his head next to her ears. C2 further stated that C1 held Complainant for nearly five minutes, but Complainant was not choking, eating, or drinking at the time. He further stated that Complainant never mentioned that she was choking during the incident. C2 also stated that C1 pinched Complainant in the stomach and side and said that it did not appear that she was gaining weight, and Complainant had a look of disgust when C1 did this. C2 stated that management moved C1 to the shop next door, which is right by the only women's restroom. C2 stated that the shop next door is in the same building, and is about 100 feet from Complainant's work area. C2 also stated that he believed management handled the situation very poorly because C1 was still in the area and able to see Complainant. C2 further stated that C1 would walk behind Complainant's building. "He still had visual and physical access to Complainant," C2 stated. IF, p. 229. A male WG-04 Heavy Laborer (C3) stated that he observed C1 call Complainant names such as "babe" or "baby" approximately twice per week, and that Complainant complained about it. C3 further stated that he observed C1 come up and put his arms around Complainant in the shop a couple of times, but Complainant would ask coworkers why C1 had to do that to her. C3 also stated that he was not in the break room on January 26, 2012, but he witnessed Complainant shout at C1 that she wished he would just leave her alone as he stood at the front of the shop. He stated that Complainant was visibly upset and went to the back of the shop while tearing up. C3 also stated that management moved C1 to another shop, but he still walked past the bay doors of Complainant's shop about once per week. A male WG-06 Motor Vehicle Operator (C4) stated that on May 27, 2011, he witnessed C1 place his arms around Complainant in a bear hug and squeeze her a couple of times while saying something he could not understand. C4 further stated that to his knowledge, Complainant was not eating or choking during this incident, and he did not recall C1 mentioning that he was attempting to perform the Heimlich Maneuver. C4 also stated that in January 2012, C1 came into the break room and asked him what he was trying to do while he was helping Complainant buy a soda from a machine. He stated that C1 greeted Complainant, but she did not respond. C4 further stated that C1 offered him a dollar to buy a soda, and Complainant said she did not need his "fucking money." C4 stated that Complainant and C1 began to argue, and C1 said he could be wherever he wanted and talk to whomever he wanted, but Complainant asked him to leave and said he should not talk to her. A male WG-04 Heavy Laborer (C5) stated that, even before the incidents at issue in this case, C1 got progressively flirtatious with Complainant, and then became "touchy and hands on." IF, p. 232. C5 further stated that on March 16, 2011, he saw C1 place his legs between Complainant's legs and touch her hand. He stated that Complainant drew back and appeared surprised, and he believed she was slightly intimidated by C1 because of his position. C5 also stated that in April 2011, he heard C1 tell Complainant that he loved her and call her "boo" before she hung up the phone. S1 (male) stated that C1 assisted him in communicating job instructions to other employees, including Complainant. Regarding claim 1, S1 stated that a few days after this incident, a union representative informed him of what happened, but Complainant never told him about the incident. IF, p. 207. S1 stated that, after discussing the matter with the union representative, he verbally counseled C1 and restricted him from going out in the mornings to give job instructions to employees, or having any contact with Complainant. He further stated that he told C1 that he would speak to Complainant about any work-related issues. S1 stated that he did not talk to Complainant at that time because she had complained through her union representative instead of coming to him. S1 further stated that he told C1 to be professional around all coworkers, not to touch them, or to joke about this situation. He stated that he did not inform C1 of any further disciplinary action. Regarding claims 2 and 3, S1 stated that the union representative informed him of these incidents on May 27, 2011, the same day Complainant told the union about the matters. S1 stated that his supervisors (S2 and S3) decided to move C1 to Shop 32 for a few weeks after the March 2011 incident, but after the other two incidents were reported, moved C1 to the Public Works Building. S1 further stated that S2 told him that C1 was instructed not to contact Complainant physically or verbally and to avoid areas where she was or could be. Additionally, S1 stated that C1 was instructed not to wander the halls upstairs, but could go upstairs for purchase authorizations at S3's office. S1 also stated that when he talked to C1 in June 2011, C1 denied inappropriately touching or grinding on Complainant and claimed he performed the Heimlich Maneuver on her because she was choking or coughing. S1 stated that he heard that C1 was suspended, but he never received documentation of it. Regarding claim 4, S1 stated that in January 2012, C1 had been permanently assigned to Shop 51 as its Shop Planner. S1 stated that an employee told him that Complainant and C1 had words in the break room, but the employee did not go into a lot of details. S2 (male) stated that he learned of Complainant's harassment allegations in May 2011 after a coworker went to the EEO office and made a complaint on Complainant's behalf after the "hugging" incident referenced in claim 3. S2 further stated that, in response to the allegations, C1 was temporarily moved to Shop 32 and instructed not to have any contact with Complainant. S2 stated that he concurred with S1's decision to not have C1 inform teams of their daily assignments in the morning. S2 also stated that when C1 was placed in Shop 51 a few weeks after being moved to Shop 32, he was no longer in Complainant's chain of command. S2 further stated that he gave C1 a letter of instruction and had an informal conversation directing him not to have any contact with Complainant. S2 stated that he believed that C1 was suspended for a few days, but he has never seen any paperwork concerning a suspension. Regarding claim 4, S2 stated that this incident occurred when C1 had permanently moved to Shop 51. S2 stated that C1 was not supposed to have any contact with Complainant. He stated that on the day of the January 2012 incident, he directed C1 to pack all his belongings and report to Shop 34, which is on the far side of the base. S2 stated that this stopped the harassment because Complainant and C1 no longer came in contact with each other. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Final Agency Decision In its final decision, the Agency concluded that Complainant established that she was subjected to sexual harassment. However, with respect to liability, the Agency determined that Complainant did not contact her supervisor or management about the alleged harassment; instead, she informed her union representative about the March 2011 incident, and he informed S1 about the incident a few days after it occurred. The Agency further determined that the union representative informed S1 of the April and May 2011 incidents on May 27, 2011. The Agency also determined that, immediately after the March 2011 incident, management counseled C1, restricted him from having any contact with Complainant, relieved him of informing the team of daily duties, and subsequently relocated him to Shop 32. The Agency further determined that management later permanently moved C1 to the Public Works building, and again instructed C1 not to have contact with Complainant. "The record shows that these measures were not effective, as evidenced by [C1's] conduct toward Complainant in April and May 2011, and the fact that [C1] and Complainant sill came in contact with each other," the Agency concluded. Final Agency Decision, p. 12. Nonetheless, the Agency noted that when management became aware of the April and May 2011 incidents, it permanently reassigned C1 to a shop on the far side of the base so that C1 and Complainant would not have any contact with C1. The Agency concluded that management therefore took prompt remedial action when it learned of the claims against C1, and that the January 26, 2012, incident was an isolated incident that arose out a "chance meeting" between Complainant and C1 in a snack area. The Agency concluded that it was therefore not liable for any of the alleged harassment. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the record establishes that she was sexually harassed, and the Agency failed to take proper remedial action. Complainant maintains that after being informed of the first incident shortly after it occurred on March 16, 2011, the only action taken by S1 consisted of a verbal counseling to C1 instructing him not to interact with Complainant. Complainant further maintains that, at the very minimum, the Agency should have transferred C1 to another building to prevent future harassment. Complainant also contends that the Agency's response was ineffective because C1 was not stripped of his duties as acting supervisor, and Complainant was required to contact C1 to request leave when S1 was unavailable, which lead to the second incident of harassment. Complainant maintains that the Agency did not move C1 to another building until after the May 27, 2011, incident, but that C1 continued to have responsibilities that brought him into contact with Complainant. Complainant notes that, although C1 was eventually moved to another building where he would no longer have contact with Complainant, the Agency still has not taken any action to formally discipline him. The Agency does not present any arguments on appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Sexual Harassment/ Hostile Work Environment Complainant's complaint consists of a single claim that she was subjected to ongoing sexual harassment. Therefore, each incident in her complaint should be viewed as part of that single harassment claim. It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that 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 (5) that there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982)). Credibility of the Witnesses In this case, Complainant stated that in 2011, C1 sexually harassed when he put one of his knees between her legs and caressed her hand. Complainant further stated that C1 also harassed her in another incident wherein he called her "babe" and told her he loved her while she requested leave on the telephone. Complainant also stated that C1 harassed her when he came up behind her and wrapped his hands around her just under her breasts, pulled her into him, moaned in her ear, pressed his penis against her, and put his head on her shoulders for a minute. Additionally, Complainant stated that in January 2012, C1 encountered her while she was attempting to use a vending machine and asserted that he could be anywhere he wanted to be. C1 denied or contradicted portions of Complainant's allegations. For example, he maintained that in March 2011, he did not put his knees between Complainant's legs or caress her hand. Further, C1 maintained that in May 2011, he placed his hands in the center of Complainant's stomach to perform the Heimlich Maneuver because he heard Complainant mention she felt she was choking, but did not bear hug Complainant or moan in her ear. However, we note that C1 acknowledged that he grabbed Complainant's hand in March 2011; told Complainant he loved her and maybe called her "boo" during the April 2011 phone call; placed his hands in the center of Complainant's stomach; may have inadvertently pressed his penis against her; and argued with Complainant in the break room in January 2012. We note that Complainant's accounts are remarkably consistent and detailed throughout the record. Essentially, Complainant has told the same story of her account during EEO counseling, to the formal complaint, to her investigative affidavit statement. In contrast, C1's statements are questionable. His claim that he touched Complainant while performing the Heimlich Maneuver is especially unworthy of belief in light of the fact that not a single witness observed Complainant choking or coughing during the incident. At times, C1 even contradicts himself. For example, in an interrogatory response, C1 stated that he did not tell Complainant he loved her during the April 2011 telephone call, but he asked Complainant if she loved him. IF, p. 23. However, in his investigative affidavit statement, C1 stated that he told Complainant he loved her during the phone call. IF, p. 188. Further, Complainant's account of events is corroborated by multiple witnesses who provided consistent statements. For example, coworkers stated that they witnessed C1 slide his leg between Complainant's legs, talk to her in a low voice, call her "boo" and similar terms, tell her that he loved her, place his arms around her stomach, place his head on her shoulder, pull her close to him, moan in her ear, and encounter her in the break room while she attempted to buy a soda. Moreover, coworkers affirmed Complainant's assertion that she was not choking during the May 2011 incident. Additionally, witnesses affirmed that Complainant was often very uncomfortable or visibly upset in C1's presence. Taking these considerations into account, we conclude that Complainant's allegations are supported by the weight of the evidence. Prima Facie Sexual Harassment Turning to the first prong of Complainant's prima facie harassment case, Complainant, a female, is a member of a statutorily protected class. The record reflects that Complainant was subjected to conduct of a sexual nature by C1. Additionally, Complainant was the only woman in her section, as well as the only person subjected to this type of conduct by C1. Thus, we conclude that Complainant was subjected to conduct based upon her sex. Additionally, the record supports the conclusion that Complainant objected to C1's conduct, as reflected by the fact that she immediately reported it to a union official. Thus, we conclude that C1's conduct was unwelcome. Turning to the fourth prong of the prima facie case, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; and whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. 17, 23 (1993); see also Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (Mar. 19, 1990). In this case, Complainant was subjected to C1's unwanted romantic overtures and threatening bodily contact of a sexual nature. Moreover, C1 sometimes served as an acting supervisor over Complainant, which created an intimidating power dynamic. Additionally, C1's outrageous conduct occurred in the presence of coworkers, which heightened the demeaning nature of the behavior. Thus, we find that a reasonable person would conclude that C1's conduct created a hostile work environment for Complainant. See Complainant v. Dep't of Justice, EEOC Appeal No. 0120132393 (June 25, 2015) (Commission found complainant subjected to sexual harassment where coworker breathed heavily on her neck while making sexual noises in close proximity to her); Ramirez v. U.S. Postal Serv., EEOC Appeal No. 01997206 (Feb. 13, 2002)(Commission found complainant subjected to hostile work environment where coworker came up behind her while in the break room and pressed his penis into her buttocks). Liability Because Complainant established that she was subjected to sexual harassment, our next inquiry is whether the Agency is liable for C1's actions. In the case of co-worker harassment,1 an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992). In this case, management acknowledges that it learned from a union official that C1 had harassed Complainant within a "few days" of the March 16, 2011, incident. Additionally, management acknowledges that it learned about the April and May 2011 incidents on or about May 27, 2011. We note that it does not matter that Complainant did not directly report the harassment to management. The Agency had a duty to take immediate and appropriate corrective action after it received notice that Complainant was being harassed, no matter the source of the report. The Agency responded to the reported harassment by counseling C1, restricting him from speaking to and touching Complainant, and by removing his ability to give work instructions to Complainant's section. Additionally, the Agency initially moved C1 to Shop 32, which was in the same building as Complainant, or at least in close proximity to her shop. However, these actions were clearly not effective because moving C1 to the shop next door still allowed him to have access to Complainant, and C1 harassed Complainant further in April and May 2011. After the April and May 2011 incidents, the Agency assigned C1 to the Public Works Building/Shop 51. However, this also was ineffective, as reflected in the fact that C1 encountered and argued with Complainant in her shop in January 2012. In its final decision, the Agency casts the January 2012 encounter as merely an "isolated incident that arose out of a chance meeting between Complainant and [C1]." The Agency concluded that this incident did not constitute harassment. However, we find that this incident cannot be viewed in isolation. In so finding, we note that, during this encounter, C1 defiantly asserted that he could still go wherever he wanted, despite the Agency's assertion it counseled him to stay away from Complainant. Further, the January 2012 incident was part of an ongoing accumulation of harassing and intimidating actions by C1 toward Complainant. We note that C1 claimed that he was suspended by the Agency because of Complainant's allegations, but S1 and S2 stated that they have not seen any documentation reflecting that C1 was suspended. Moreover, there is no documentation in the record reflecting that C1 was suspended because of the harassment. In fact, the record is devoid of any documentation that confirms that C1 was disciplined or admonished for harassing Complainant. Whatever the Agency's response, it did not stop C1 from harassing Complainant up to January 26, 2012. Witnesses attested that C1 sometimes visited and lurked in Complainant's work area even after the Agency reassigned him to another shop/building. The Agency's failure to properly address the harassment left Complainant vulnerable to the very type of disturbing confrontation that occurred on January 26, 2012. Therefore, the Agency's response was inadequate. In essence, the fact that the harassment recurred after Complainant reported the harassment indicates that the Agency's response was neither prompt, nor effective, nor appropriate. See Lemons v. Dep't of Justice (BOP), EEOC Appeal No. 0120081287 (Apr. 23, 2009) (the fact that harassment of prison guard recurred and escalated after she reported inmate's repeated harassment indicates that agency's response was not prompt, effective, or appropriate); Logsdon v. Dep't of Agriculture, EEOC Appeal No. 07A40120 (Feb. 28, 2006) (taking only some remedial action does not absolve the agency of liability where that action is ineffective). Accordingly, because the Agency has not satisfied the affirmative defense, we find that it is liable for the harassment of Complainant. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that the Agency subjected Complainant to sexual harassment. The Commission REVERSES the Agency's final decision and REMANDS this matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0610) The Agency is ORDERED to undertake the following remedial relief: 1. The Agency shall immediately ensure that C1 does not have any contact with Complainant by barring him from her work facility and from communicating with her while at work. The Agency shall also ensure that Complainant is not in C1's chain of command, and that C1 does not act in any supervisory capacity over Complainant, including as acting supervisor. In complying with this order, the Agency shall not move or transfer Complainant, unless Complainant agrees to such an action in writing. 2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the sexual harassment and her pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 3. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to C1 and to all supervisors and management officials at its Facilities Maintenance Section, Roads and Grounds Maintenance Shop at the United States Marine Corps Base in Quantico, Virginia regarding their responsibilities with respect to Title VII. The training shall be focused on preventing and responding to harassment (including sexual harassment) and EEO anti-retaliation provisions. 4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials, specifically S1 and S2, and against C1. 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 individuals have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 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 calculation of compensatory damages and lump sum (leave value) payment, including evidence that the corrective actions POSTING ORDER (G0914) The Agency is ordered to post at its Facilities Maintenance Section, Roads and Grounds Maintenance Shop at the United States Marine Corps Base in Quantico, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. 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. 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. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carl Carlton M. Hadden, Director Office of Federal Operations September 16, 2015 Date 1 Because C1 sometimes gave Complainant job assignments, responded to her leave requests, and acted as her supervisor, the supervisory liability standard for harassment arguably would be appropriate here. However, the Commission analyzes this case using the more demanding negligence liability standard used for coworker harassment cases. See Lusardi v. Dep't of Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015); Wilson v. Tulsa Junior College, 164 F. 3d 534, 540 n. 4 (10th Cir. 1998) ("The Supreme Court recognized in [Faragher v. City of Boca Raton, 524 U.S. 775 (1998)] and [Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)] the continuing validity of negligence as a separate basis for employer liability"). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130704 2 0120130704