Thomas V. Miller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120093073 Agency No. 200H-0405-2008101616 DECISION Complainant timely filed an appeal from the Agency’s June 10, 2009, final decision concerning his 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 the Agency properly found that Complainant was not subjected to sexual harassment; if so, whether Complainant was constructively discharged by the Agency, and if not, whether the Agency is liable for the sexual harassment. BACKGROUND The record reveals that during the relevant time period, Complainant worked as a Voucher Examiner at the Agency’s facility in White River Junction, Vermont. Complainant began working at this facility on August 22, 2007, and resigned effective January 3, 2008. On May 12, 2008, Complainant filed an EEO complaint alleging that the Agency subjected him to sexual harassment when: 1. Around September 17, 2007, Complainant's co-worker, EF, in front of Complainant, commented she was able to swallow 21 pills without water and later approached Complainant and told him she was blessed with the ability of not having a gag reflex, a comment the complainant felt was sexual in nature; 2. Starting in September 2007 and continuing until Complainant’s resignation, EF called Complainant “Tom-ass;” 3. Starting in September 2007 and continuing until Complainant’s resignation, EF placed chocolate in Complainant’s desk with a paper towel blotted with her lipstick; 4. Around September 24, 2007, Complainant learned that EF used another coworker (CW) to find out personal information about him; 5. Around September 24, 2007 and on a daily basis thereafter, Complainant advised his supervisor (S1), that he was getting tired of EF’s conduct; 6. Around September 24, 2007, and on many subsequent occasions, EF complained to Complainant that she was tired of Complainant not talking to her and repeatedly told Complainant that she was sorry; 7. Around October 5, 2007, while eating at McDonald's, EF continued asking Complainant personal questions even though he had previously told her not to, and wrote the word "Tom-ass" in the dirt on the back windshield of his car; 8. During an early November 2007 meeting involving the union president (UP) and the Chief Financial Officer (CFO) to address EF’s conduct, Complainant was not allowed to provide a full account of the events involving EF; 9. For a two to three-week period after the meeting in early November, and despite being advised to leave Complainant alone, EF intentionally bumped into Complainant, made comments such as "it is too bad there [are] not any guys in this office," and talked about men with penile dysfunctions; 10. Around November 26, 2007, EF began calling Complainant "Tom-ass" again and placed candy on his desk, which prompted Complainant to notify S1; 11. During the week of December 17 through 21, 2007, EF made comments that Complainant could do anything he wanted to her and later complained in front of other employees that Complainant did not look at her or talk to her; 12. On the morning of December 20, 2007, EF left a sexually-oriented catalogue in one of Complainant’s work stacks and later exposed her breast to Complainant as she left the restroom; 13. On December 20, 2007, EF told Complainant how much she liked him and wanted to be with him; 14. On December 21, 2007, EF called Complainant “fucking loser” and “fucking lazy” because there was a missing zip code on one of the patient travel forms; 15. On December 21, 2007, EF repeatedly opened and slammed the sliding glass door that separated their work spaces while demanding that Complainant provide the missing zip code for the form, and later smiled at Complainant when she slammed the door in his face; and 16. On January 3, 2008, Complainant was forced to resign due to the hostile work environment EF created for him. In an investigative deposition statement, Complainant testified that on September 17, 2007, he heard co-worker EF tell another co-worker that she had the ability to swallow pills without drinking water and asked him what he thought about this. Exhibit B-1, p. 9. Complainant further testified that EF also said that she was blessed without a gag reflex, which he interpreted as a reference to a specific sexual act. Id., p. 11. He testified that he then turned his back on EF so that she would understand that he was not interested in such a conversation. Complainant further testified that shortly after he began working with the Agency, EF called him “Tom-ass” on a daily basis because he did not talk to or interact with her. Id., p. 15. He stated that he told EF not to call him “Tom-ass,” but she laughed. Id., pp. 16, 17. Complainant also testified that EF wrote “Tom-ass” on Christmas cards that were on his desk. Id., p. 17. He stated that he placed the cards under S1’s door as proof of EF’s conduct. Id. Complainant further testified that in September 2007, EF placed lipstick-blotted paper towels and unwrapped candy and chocolate in his desk. Id., p. 20. Complainant also testified that in September 2007, EF influenced co-worker CW to take a break with Complainant to “fish” for personal information. Id., p. 26. Complainant stated that CW asked him how he felt, how he was doing, how he liked working in the office, and engaged in small talk with him. Id. Complainant stated that he told S1 on almost a daily basis that he was tired of EF’s conduct. Id., p. 31. Complainant further testified that EF also commented that she carried pepper spray, that she used and had a gun, and talked about using the gun on herself. Id., p. 31. He stated that EF also bumped into him and said that she wished that there were some men in the office. Id., p. 32. Complainant testified that he avoided contact with EF and stopped talking to her. Id., p. 34. He testified that one day in the stairwell, EF told him that she was sorry, and he told her that he was “done.” Id., p. 35. Complainant testified that in early October 2007, the Agency moved Complainant and EF to another office in an isolated section so that carpet could be laid in the office. Id., p. 37. Complainant testified that on October 5, 2007, he asked EF if she wanted anything from McDonald’s restaurant during lunch, and she said yes. Id., p. 38. Complainant testified that EF then asked if she could go to lunch with him, and he said that she could go if she behaved. Id., p. 39. He stated that he and EF ate at McDonald’s for ten minutes and returned to the office. Id. Complainant testified that his daughter and wife later discovered that EF had written “Tom-ass” in the dirt on his vehicle’s rear windshield, which upset his family. Id., p. 42. He stated that he showed the graffiti to S1. Complainant further testified that during a meeting to discuss an e-mail from EF in early November 2007, the CFO shrugged when he tried to tell her about several incidents of EF’s harassment and asked him if he could be professional. Id., p. 45. Complainant testified that his conversation with the CFO was less than two or three minutes, and he said that the meeting was a charade. Id., p. 46. Complainant testified that when he asked management if he could submit a statement detailing all the incidents of harassment, the CFO said no and said that it was “over and done with.” Id. Complainant further testified that in another e-mail to him, EF said that he should tell his wife that she was the person he planned on having an affair with. Id., p. 47. He stated that he told EF to “shove it up her you know what.” Id. Complainant also testified that EF met with a union official and the CFO and informed him that she was reprimanded, told to stop her behavior, and was not allowed to continue her actions. Id., p. 48. Complainant testified that in early November 2007, EF bumped into him and told a co-worker that there were no guys in the office. Id., p. 52. He testified that EF again began to place candy on his desk, which he reported to S1. Id., p. 57. Complainant stated that in September 2007, EF placed a newspaper movie section on his desk and stated that if he took her to a movie, he could do anything to her. Id., p. 59. He stated that he gave the newspaper back to EF and walked away. Id., p. 59. Complainant testified that EF also told a co-worker (CW2) in his presence that he did not look at her, would not talk to her, and ignored her. Id., p. 60. Complainant further testified that on December 20, 2007, EF left a sex catalog in his work stacks, which EF later admitted to him. Id., p. 63. He further testified that on the same day, she came out the restroom, looked at him, grabbed her blouse, and exposed her breasts by pulling the blouse up to her shoulders. Id., p. 64. Complainant further testified that later that day, EF engaged in a conversation about her family, depression, and how much she wanted Complainant but could not have him because he was married. Id., p. 69. He testified that EF began to cry and said that maybe he should get a new girlfriend, and he told her that she was not supposed to say such things. Id., p. 70. Complainant stated that he did not report this incident because S1 was not in the office at the time. Id., p. 71. Complainant stated that the Agency installed a sliding door that made it impossible for him and EF to see each other, but they could still talk to each other. Id., p. 72. He testified that on December 21, 2007, EF came to him, pointed her finger, and said that he was a “fucking loser” and “fucking lazy.” Id., p. 72. Complainant testified that another supervisor (S2) was in the office at that time, and he told her about EF’s conduct. Id., p. 73. He stated that S2 called the CFO, who instructed him to write an account of the incident. Id., p. 73. Complainant testified that EF repeatedly came into his office and slammed the accordion doors. Id., p. 76. Complainant further testified that he then left the office for Christmas vacation, but was in a car accident during vacation. Id., p. 80. He stated that S1 called him, and he reported the latest harassing incidents to S1, but S1 said it was a “he said, she said” situation. Id., p. 80. He stated that a union official advised him that it was easier for management to rectify the problem by terminating him because he was still on probation, and EF had been with the Agency for 20 years. Id., p. 86. He stated that he felt that he was going to lose his job because nothing had been done about EF’s conduct, and the Agency would not protect him. Id., p. 87. Complainant testified that he resigned because EF carried pepper spray, said she had a gun, and talked about using a gun on herself. Id., p. 88. “And to hell if she was going to come in, because what had happened, come in, because what had happened now and how this was going, and she was either going to pepper spray me, shoot me, hit me with a bat, whatever,” Complainant stated. Id. Complainant also testified that he did not make sexual overtures toward EF and did not frequently call her house or come by her part-time job in the evening, as alleged by EF. Id., p. 91. EF testified that she told everyone that she was able to swallow 21 pills. Exhibit B-5, p. 7. She testified that she told a co-worker that she was able to swallow 21 pills without water, but the statement was not sexual in nature. EF stated that she made the comment because she thought it was funny, and “it’s an unusual talent.” Id. EF testified that she called Complainant "Tom-ass" because he was "off the deep end." She further testified that Complainant did not speak to her for one month, which was awkward because she worked next to him. EF testified that employees would have parties, and Complainant would sit at his desk with his back to employees and would not join the party. She stated that Complainant would not eat with them and if they tried to talk to him he would be rude. EF stated that this was a very uncomfortable working situation, and Complainant would say “really disgusting” things to her. She stated that she did not report Complainant’s behavior because she needed her job, is single, and did not want to make any “waves” in the office. In response to Complainant's contention that she wrote the name "Tom-ass" on Complainant’s Christmas cards, EF stated, "I don't remember. I know that [a co-worker] called him ‘Tom-ass’ too. I know there were several others that referred to him as Tom-ass. It was sort of a joke. It was probably inappropriate, but he said inappropriate things too . . . It was just like a joke, a bad joke." Id., p. 13. EF testified that she is a "chocoholic," and she would place candy in Complainant’s desk because she sometimes took some of Complainant’s candy from his desk. Id., p. 15. EF testified that she wore red lipstick, blotted her lipstick with a paper towel, and threw the paper towels in the trash. She stated that she told Complainant that she did not leave paper towels in the trash for him. EF also stated that she did not tell a co-worker to interrogate Complainant so that she could find out personal information about him. EF further testified that she carried pepper spray but did not tell Complainant that she did. She stated that she told Complainant about her gun because he said he was in the military. EF further testified that she did complain to Complainant about him not talking to her, which made her uncomfortable. EF testified that she apologized to Complainant and told him that she wished that he did not act in the manner in which he was behaving. She further testified that she thought Complainant wanted to have sex with her, and when she did not sleep with him, Complainant became very angry. Id., p. 23. EF also testified that she asked Complainant if she could go to McDonald's with him, and Complainant said that she could go if she behaved. She stated that she wrote “Tom-ass” on Complainant’s car, but Complainant saw her write it on the vehicle and laughed. EF testified that she did not expose her breast to complainant. “Well, I defy him to describe my breast. I told [Complainant], let's do it, let's go ahead and do it and see what he says, and I'll show you my breast. A breast is a breast is a breast,” EF stated. Id., p. 48. EF also testified that she did not say that if Complainant took her to the movie, he could do whatever he wanted to her. EF further stated that she did not bring a sex catalog into the office, although the catalogue was sent to her home. Id., p. 47. “I would never do that. So what this means is that [Complainant] went to my home, he went to my home and he either broke into my condo or he went into the recycle bin at my condo complex,” EF stated. Id., p. 46. She stated that she never told Complainant where she lived. Id., p. 47. She stated that Complainant told her that he wanted to have sex with her, but she refused because she did not have sex with married men. Id., p. 48. EF testified that she may have told Complainant how much she liked him in an effort to smooth things over. Id., p. 50. EF further testified that on or about December 2006, she continuously asked Complainant to speak to her, but he would just turn away from her. She testified that she told Complainant about her family problems and may have begun to cry because the holidays were difficult for her because of her divorce. Id, p. 54. She also testified that she told Complainant to get a new girlfriend because she wanted him to find someone else to “pick on.” EF also testified that she called Complainant a “fucking loser” and “fucking lazy” because the zip code was missing on a patient form. She further testified that she closed the office door so that she would not have to interact with Complainant. EF testified that S2 called her to the office and informed EF of Complainant’s sexual harassment allegations. EF stated that she told S2 that she would not leave the office until Complainant was out of the building, and she waited in the office until Complainant left work. EF testified that the Agency conducted an investigation into Complainant’s allegations, and witnesses were interviewed. EF stated that December 21, 2007, was the last day she worked with Complainant, and he resigned thereafter. She stated that she received a written reprimand dated February 28, 2008, “but nothing happened to me.” Id., p. 62. EF stated that management also advised her to seek counseling with the Employee Assistance Program. The CFO testified that she reviewed e-mail correspondence between Complainant and EF and decided to meet with Complainant, EF, S1, and a union official. Exhibit B-4. The CFO testified that during the meeting, she explained what she expected from her employees and that Complainant and EF should act professionally. The CFO testified that she told Complainant that if he had any other issues with EF, he was to let her or S1 know. She further testified that she issued EF a verbal counseling because of the e-mail, and EF admitted that it was inappropriate for her to send the e-mail message to Complainant. The CFO testified that she conducted a fact-finding investigation on December 27, 2007, and issued EF a reprimand on February 28, 2008, based on EF’s violations of a Contraband Memorandum and the Employee Responsibilities and Conduct Memorandum and the Sexual Harassment Memorandum. The Agent Cashier testified that she knew that Complainant and EF did not get along, and the Agency placed sliding doors between their offices to separate them. Exhibit B-6, p. 10. She testified that she and EF discussed penile dysfunction in the office because they worked in pharmacy and ordered medications. The Agency Cashier further testified that Complainant refused to deliver envelopes into an area where EF worked. Another co-worker (C3) testified that after Complainant and EF went to lunch at McDonald’s, Complainant jokingly said, “I better wash that off before I get home because my wife won’t be happy with it.” Exhibit B-6, p. 11. C3 further testified that he laughed at the word “Tom-ass” that was written on his car. C3 testified that both Complainant and EF seemed to be friendly toward each other. The record contains a copy of an undated statement from S1, who was no longer employed at White Junction at the time of the investigation.1 Exhibit C-7. In the statement, S1 stated that when Complainant arrived at White Junction, EF offered to show him around the town and took him out for dinner once during his first week in town. S1 further stated that she later learned that Complainant and EF were bickering in the office and had an “on-again/off-again relationship” where they spoke to each other some days and did not speak to each other on other days. S1 also stated that EF constantly badgered Complainant to talk her, but Complainant ignored EF. S1 stated that she told EF that she needed to leave Complainant and several other people alone. She stated that Complainant would tell her that EF was sexually harassing him, but EF would claim that Complainant said horrible and sexual things too. “I never actually saw or heard the things [EF] says that [Complainant] said or did. I did, however, hear [EF] say things to [Complainant] such as: ‘Why are you sitting there not talking to anyone? that's rude’ . . . and he would not respond, which aggravated her even more. On several occasions, I told both of them that after the first meeting . . . they were to start with a clean slate and begin behaving as professionals,” she stated. The record contains a copy of an e-mail from EF to Complainant dated October 2, 2007. Exhibit C-12, p. 6. In the e-mail, EF stated to Complainant, “Is there any particular reason why we're not speaking? Did I do something horrible that I don't remember?” Id. The record does not contain any response from Complainant to this e-mail. However, in an e-mail to a co-worker dated October 2, 2007, Complainant stated, “I E-MAILED HIM. THE TENSION IN THIS OFFICE IS UNBEARABLE. I’M GONNA CRACK.”2 Exhibit C-8, p. 13. The record also contains a copy of a series of e-mail exchanges between EF and Complainant on October 30, 2007. The e-mail exchange was initiated by EF, and in her first e-mail to Complainant, EF stated, “You can quit with your little song and dance about how traumatized your poor wife and kids were because they saw what someone had written on the back of your tank. You were standing right next to me at McDonald's when I wrote it, so if you were so concerned why didn't you just wipe it off before you went home? Why don't you just explain to your wife that it was the person you had planned on cheating with that wrote it, thus the name Thom-ASS. It fits.” Id., pp. 9, 10. In a subsequent e-mail, Complainant responded, “Consider this your last warning to leave me alone. What unrealistic thoughts you have bouncing around your empty head of yours do not impress me. Learn your job, stop taking advantage of your boss, and leave me alone.” Id., p. 9. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of 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). Final Agency Decision The decision concluded that Complainant failed to prove that the Agency subjected him to sexual harassment as alleged. Specifically, the decision determined that while there was sufficient evidence that many of the alleged events occurred, the interpretation of those events varied considerably. The decision further determined that although EF and Complainant did not have a professional workplace relationship, the evidence suggested that there was “a bit of pursuit by each of them.” Final Agency Decision, p. 9. The decision determined that any romantic advances that were made by EF toward Complainant were not unwelcome, at least at the beginning of the relationship between EF and Complainant, because he called her at home, took her to lunch, and visited her at her second job. The decision further concluded that the alleged actions were not severe or pervasive enough to constitute a hostile work environment. Finally, the decision also concluded that even if Complainant was subjected to harassment by EF, the Agency is not liable because it took prompt and effective corrective action to correct the harassment by holding a meeting with Complainant and EF to address the allegations; counseling EF to stay away from Complainant and act professionally; conducting a fact-finding investigation that ordered the parties to write accounts of the events between them; and, installing an accordion door between the offices of E2 and Complainant to separate the them. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency erred when it found that he was not subjected to sexual harassment for which the Agency was liable. Complainant argues that although he initially sought EF’s advice regarding his daughter because she had a similar family situation as he had, in September 2007, EF began to make lewd comments to him. Complainant contends that he attempted to distance himself from EF, but EF pursued him relentlessly. Complainant further contends that he invited EF to lunch at McDonald’s because she invited herself in the presence of S1, but EF wrote “Tom-ass” in the dirt on his car during the lunch excursion. Complainant contends that the Agency’s verbal counseling of EF was ineffective because EF subsequently continued to bump into him, expressed sexual desires for him, and ran her fingers through his hair. Complainant also contends that EF’s actions were unwelcome because he told her that was not romantically interested in her, and he lodged a complaint about her conduct with management. Complainant maintains that he resigned in January 2008 because of EF’s harassment and threats, and management’s lack of appropriate response. In its reply, the Agency requests that we affirm its final decision. 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 (EEO MD-110), at Chap. 9, § VI.A. (November 9, 1999) (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 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 prima facie case of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his sex; (3) that the harassment complained of was based on his sex; (4) that the harassment had the purpose or effect of unreasonably interfering with his 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 Complainant did not avail himself of a hearing. Therefore, we must make credibility determinations, on the record, without the assistance of a neutral EEOC AJ's personal observations of witness demeanor and tone. Wagner v. Dep’t of Transp., EEOC Request No. 0120101568 (Aug. 23, 2010). As an initial matter, we note that Complainant and EF presented divergent accounts of their interaction during the relevant time period. As such, we first make credibility determinations regarding the alleged incidents. Complainant acknowledges that he was friendly and interacted with EF in a cordial manner when he initially was hired at White River Junction. However, he maintains that he curtailed his interactions with EF after she made a series of lewd comments and overtures toward him in September 2007, including calling him “Tom-ass”; placed candy and lipstick-smeared napkins around his work area; left a sexually-oriented catalogue in Complainant’s work area; and exposed her breasts to Complainant in the workplace. EF contends that Complainant proposed that she have a romantic affair with him, and retaliated against her when she declined by lodging sexual harassment allegations against her. EF further contends that Complainant also sexually harassed her by making sexually suggestive comments to her. After a thorough review of the record, the Commission is persuaded that Complainant is more credible than EF with respect to the alleged events at issue in this case. In so finding, we note that Complainant reported EF’s conduct to management in early October 2007 and on several subsequent occasions, whereas EF did not report that Complainant engaged in harassing conduct until management confronted her about Complainant’s allegations against her. We find it significant that Complainant not only reported that he was the victim of harassment before EF made counter-allegations against him, but also that Complainant was persistent in reporting EF’s conduct to management. According to documentary evidence from S1, Complainant continually reported to her that EF harassed him. Moreover, Complainant repeatedly made similar allegations against EF to the CFO, the union, and other management officials. We also note that from the time that he first reported the harassment and throughout the EEO process, Complainant has provided very detailed and remarkably consistent accounts of EF’s conduct. We further find that Complainant’s credibility is bolstered by a memorandum from S1 in which she recounted her observations during the relevant time period. In that memorandum, S1 stated that after an initial period in which Complainant and EF were friendly with each other, she later observed that EF constantly badgered Complainant to talk her, but Complainant ignored EF. S1 also stated that Complainant continually informed her that EF sexually harassed him. Further, S1 stated that although EF made countercharges against Complainant, S1 only witnessed EF asking Complainant why he was not speaking to her, to which Complainant did not respond. Additionally, S1 reported that she instructed EF to leave Complainant and other employees alone. Thus, S1’s memorandum corroborates Complainant’s assertions that he reported that he was harassed by EF to management, avoided contact with Complainant shortly after he began work at the facility, EF was upset that Complainant refused to interact with her, and EF repeatedly badgered Complainant. Also, we note that EF acknowledged many significant aspects of Complainant’s claims, including the assertion that she placed candy in or on his desk; called him “Tom-ass;” wrote “Tom-ass” on his car; ran her fingers through Complainant’s hair at work; discussed penile dysfunction in the office; called Complainant a “fucking loser” and “fucking lazy;” carried pepper spray; and told Complainant she carried a gun. Copies of e-mails from Complainant to EF further confirm that EF was extremely upset that Complainant stopped interacting with her and told management that she was harassing him; that EF used the term “Tom-ass” as an insult against Complainant; and that Complainant was reluctant to interact with her even when EF initiated contact with him. Additionally, EF’s claim that she was the victim of Complainant’s sexually harassing conduct is inconsistent with her admission that she ran her fingers through and ruffled Complainant’s hair. Exhibit C-15, p. 2. We note that EF denied that she placed a sexually-oriented catalogue in Complainant’s work area. However, the record contains a copy of portions of the sex catalogue that Complainant said EF placed in his work area. Exhibit C-12, pp. 31-33. The catalogue has a mailing label that reflects that it was sent to EF, and the text of the catalogue personally addresses EF. Id. In her investigative statement, EF maintained that Complainant obtained the catalogue by burglarizing her home or rummaging through her recycle bin. We find Complainant’s version of the facts regarding the sex catalogue to be corroborated by documentary evidence. In contrast, there is no evidence to support EF’s allegation, such as evidence that EF reported a burglary to police during the relevant time period or any other evidence that Complainant had been at her home to retrieve the catalogue. In essence, we find EF’s explanation of the sex catalogue incident to be so contrary to the evidence and implausible that it casts considerable doubt on the veracity of her version of events. Thus, for the aforementioned reasons, 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 male, is a member of a statutorily protected class. The record reflects that Complainant was subjected to conduct of a sexual nature by EF. In so finding, we note that although incidents such as leaving candy on Complainant’s desk and calling him “Tom-ass” are not usually of a sexual nature, they occurred in the context of EF’s overtly sexual conduct, such as romantic propositioning, indecent exposure, and unwanted exposure to sexually-oriented materials in the workplace, and contributed to the overall sexually hostile work environment for Complainant. Thus, we conclude that Complainant was subjected to conduct based upon his sex. Although the Agency determined that EF’s conduct was not unwelcomed, we find that it was unwelcomed because Complainant reported the behavior to management and the union several times beginning in early October 2007 until he resigned in early January 2008; Complainant repeatedly told EF to cease her communication with him; and Complainant refused to interact with EF. The Agency contends that EF’s conduct was not unwelcomed because Complainant went to McDonald’s with her in early October 2007, and EF stated that he called her at home and visited her at her second job. We note that Complainant acknowledged that he reluctantly went to McDonald’s with EF in early October 2007 because she invited herself to go to lunch with him in front of his supervisor. While the evidence supports the conclusion that Complainant and EF had some type of cordial relationship before October 2007, the preponderance of the evidence is that Complainant steadfastly sought to avoid interactions with Complainant after the McDonald’s trip. Complainant’s statement, EF’s statement and e-mails, and S1’s memorandum all attest that beginning in early October 2007, Complainant reported to management that he was being harassed by EF, that Complainant wanted EF to avoid contact with him, and that Complainant avoided interactions and communication with EF. Further, while EF contended that Complainant visited her second job and called her, we do not find her assertions credible, as discussed above. Thus, we conclude that the record reflects that beginning in October 2007, EF’s conduct toward Complainant was unwelcomed. 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 unwelcome sexual comments, sexual propositioning, vulgar taunting and name-calling, sexually explicit material, and indecent exposure throughout a three-month period. Further, Complainant was forced to work in the same work area with the harasser, even after he reported her offensive conduct to management. A reasonable person could conclude that the effect of EF’s offensive conduct toward Complainant created a hostile work environment. Further, EF’s conduct was particularly objectionable in light of the fact that EF disregarded the Agency’s verbal admonishment to refrain from harassing Complainant. Thus, we find that Complainant was subjected to conduct that was sufficiently severe and pervasive to create a hostile working environment. Constructive Discharge Constructive discharge occurs when an employee resigns from his employment because he is being subjected to unlawful employment practices. If the resignation is directly related to the Agency's unlawful employment practices, it is a foreseeable consequence of those practices and constitutes a constructive discharge. The Agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a charging party. In order to establish that he was constructively discharged from his position, Complainant must show: (1) that his resignation resulted from the agency's actions; (2) that the agency's actions were discriminatory; and (3) that a reasonable person in his situation would have found the agency's actions intolerable. See Malpass v. Dep’t of Veterans Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, in order to establish that he was constructively discharged, a complainant must show that the agency's actions were discriminatory. Complainant contends that he was forced to resign on January 3, 2008, because the Agency failed to adequately address EF’s harassment and protected the harasser. He further contends that he also resigned because he feared for his safety after he learned that EF carried pepper spray and mentioned that she had a gun. However, Complainant did not assert that EF threatened to use the pepper spray or gun against him or made any violent threats against him. Moreover, we note that Complainant was in a serious accident on or about December 28, 2007. Complainant did not report to work again after the accident. In an e-mail dated January 2, 2008, Complainant informed the Agency that he would remain on leave and that he was in great discomfort because of the accident. Exhibit C-12, p. 22. We note that, although Complainant lodged in or near White River Junction on weekdays, he commuted to his home and family in Maine on weekends. Exhibit B-1, p. 11. We further note that in his formal complaint, Complainant requested that he be reinstated to a position at the Agency’s Togus or Manchester, New Hampshire locations, which are significantly closer to Complainant’s Maine home than White River Junction. Exhibit A-4, p. 2. Additionally, we note that in e-mail correspondence to a union official dated November 9, 2007, Complainant stated that he had a job interview in Manchester, and if he was offered that position, he would not pursue his sexual harassment claim any further because the matter would then be moot. Exhibit C-10, p. 11. Clearly, Complainant’s long commute between his home and the facility was made even more challenging by his late December 2007 accident. Thus, while the harassment may have been a factor in Complainant’s resignation, we are persuaded that Complainant’s accident and extraordinary commute were the predominant reasons why he resigned from the Agency. Consequently, we find that Complainant failed to prove that the Agency constructively discharged him. Liability Because Complainant established that he was subjected to sexual harassment, our next inquiry is whether the Agency is liable for EF’s actions. In the case of co-worker harassment, 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. See Taylor v. Dep’t Of Air Force, EEOC Request No. 05920194 (July 8, 1992). The Agency contends that the first incident of harassment occurred in late October 2007, but that Complainant did not report that EF’s conduct was sexual harassment until he sent an e-mail to management on November 9, 2007. However, we note that S1’s memorandum, EF’s e-mails, and Complainant’s statement reflect that in early October 2007, Complainant reported that he was subjected to harassment by EF. For instance, Complainant’s testimony reveals that on or about September 24, 2007, and on a daily basis thereafter, he advised S1 that he was offended by EF’s conduct. Further, the October 30, 2007 e-mail exchange between Complainant and EF reflects that Complainant had reported EF’s conduct to management by that date. At any rate, the Agency acknowledges that by November 9, 2007, management was aware of Complainant’s sexual harassment allegations. The Agency contends that it was unable to determine which party was the harasser in this case because both EF and Complainant asserted that the other person was the harasser. However, when there are conflicting versions of relevant events, the Agency must weigh each party’s credibility and make a determination whether harassment occurred. Enforcement Guidance, Section ii. Even if no determination can be made because the evidence is inconclusive, the Agency must still undertake further preventative measures, such as providing targeted training and monitoring. Id., at Section iii. In this case, the Agency merely directed EF to act professionally and not to harass Complainant, but did not conduct a fact-finding investigation until the December 21, 2007 confrontation. On or about November 9, 2007, the Agency should have conducted an investigation of Complainant’s sexual harassment claims, which would have revealed that Complainant often reported to his supervisor (S1) that EF sexually harassed him; EF’s allegations of sexual harassment were made only after Complainant reported that she sexually harassed him; Complainant stopped communicating with EF by early October 2007; and EF continued to badger Complainant about communicating with her even after Complainant made it clear that he wanted no further contact with her and reported her harassment to management. Further, such an investigation would have uncovered S1’s observation that Complainant did not say anything inappropriate to EF in her presence, but EF constantly badgered Complainant because he refused to interact with her. Thus, we conclude that shortly after November 9, 2007, the Agency should have taken prompt and effective action to address the harassment. The Agency contends that it responded appropriately because it held a meeting with EF in early November 2007 and verbally counseled her to behave professionally. The Agency further contends that it also responded appropriately by placing an accordion door between Complainant and EF’s office desks. The Agency also notes that it had a sexual harassment policy at the facility during the relevant time. However, the door, harassment policy, and verbal admonishment did not stop EF from placing a sexually-oriented catalogue in Complainant’s work space, exposing her breasts to him in the workplace, making sexual comments in his presence, calling him a vulgar name, or bumping into him. In fact, EF’s harassment escalated after Complainant reported on November 9, 2007, that he was being sexually harassed, which reflects that the Agency’s actions were not effectively crafted to stop EF from harassing Complainant. Due to the Agency's failure to stop the harasser’s conduct, Complainant was forced to work in close proximity with his harasser until the harassment culminated in an altercation on December 21, 2007. Accordingly, because the Agency has not satisfied the affirmative defense, we find that it is liable for the harassment of Complainant. As a remedy for the harassment, we order the Agency to pay Complainant compensatory damages, provide training to all management officials at White River Junction, consider disciplining the responsible management officials, and post a notice of this finding of harassment at the White River Junction function. Because we find that Complainant was not constructively discharged, we are not ordering the Agency to reinstate Complainant with back pay and benefits. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission REVERSES the Agency's final decision. We REMAND this matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ordered to undertake the following remedial relief: 1. The Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from complainant in support of her request for compensatory damages within fortyfive (45) calendar days of the date complainant receives the agency’s notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final agency decision addressing the issue of compensatory damages. 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 below. 2. The Agency shall provide training to all management officials at its facility in White River Junction, Vermont regarding their responsibilities with respect to Title VII with special emphasis on preventing and responding to harassment (including sexual harassment) and EEO anti-retaliation provisions. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency’s employ, the Agency shall furnish documentation of their departure date(s). 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 back pay and other benefits due complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its White River Junction 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (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. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 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 June 6, 2011 Date 1 The record reveals that the investigator requested that S1 submit an affidavit for the investigation in this case after S1 left the Agency, but S1 did not respond. 2 EF’s e-mail was typed in all capital letters. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2009-3073 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120093073