Celine B., 1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120120537 Hearing No. 532-2011-00030X Agency No. 4C-440-0091-10 DECISION On November 7, 2011, Complainant filed a timely appeal from the Agency's October 6, 2011, final order (FAD) 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. For the following reasons, the Agency's FAD, fully implementing an EEOC Administrative Judge's (AJ) finding that the Agency established an affirmative defense to liability for Complainant's sexual harassment claim is VACATED. The complaint is REMANDED for a hearing. ISSUE PRESENTED Did the AJ err in granting summary judgment to the Agency on the ground that it had successfully established an affirmative defense to Complainant's sexual harassment claim? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Newburg Post Office facility in Cleveland, Ohio. Report of Investigation (ROI), p. 10. Between April 23-27, 2010, Complainant alleged that she was sexually harassed by her supervisor, S1, by way of inappropriate comments and touching. ROI, p. 10. Complainant also alleged that S1 repeatedly failed to properly report her leave, such that she was not paid for leave she took. ROI, p. 10-11. The record demonstrates that Complainant told co-workers about the alleged incidents of misconduct. For example, C1 testified that Complainant told him that she did not want to close the facility with S1 on the date that the incidents occurred. ROI, p. 11. C2 testified that on April 23, 2010, she received a phone call from the Complainant in the evening during which Complainant told her about physical contact with S1 during a conversation about not getting paid for her annual leave, and that S1 tried to pull the Complainant into his lap. ROI, p. 11. C3 testified that Complainant would call him upset that S1 made verbal sexual advances toward her. ROI, p. 12. C3 also stated that he witnessed S1 change the Complainant's schedule such that she would have to do collections on a day that S1 would close the facility, rather than another employee who was scheduled to do the collections. ROI, p. 11, 172. S1 stated in front of C3, "Hell no. She is doing collections if I'm closing." ROI, p. 11. C3 testified that Complainant did not want to be alone with S1, and C3 would stay every day he could so that Complainant did not have to be alone with S1. ROI, p. 11. C3 testified that Complainant was upset during the period April 23 - April 27, 2010. ROI, p. 12. C4 testified that on April 23, 2013, Complainant asked her to go into the facility to retrieve her phone because S1 tried to touch her and she did not want to go back in. ROI, p. 11. Complainant reported the instances of alleged sexual harassment to a manager, S2, on April 28, 2010. ROI, p. 208. S2 initiated a "management inquiry" into the matter, which revealed that Complainant stated that S1 "touched her inappropriately." ROI, p. 235. S2 contacted human resources, and a human resources manager initiated a fact-finding investigation into the matter on May 5, 2010, which was completed on June 4, 2010. ROI, p. 204. Despite the investigation revealing that Complainant complained to co-workers about the inappropriate conduct, the investigation concluded that Complainant's claims were unsubstantiated. See, for e.g., ROI, p. 211; AJ Decision, p. 3. S1 was allegedly removed from the Post Office during the investigation, but returned subsequent to the investigation. AJ Decision, p. 3. On June 21, 2010, Complainant filed an EEO complaint alleging that she was subjected to harassment on the basis of sex (female) when: 1. On April 23, 2010, during the course of a conversation about Complainant not being paid for her leave, her supervisor (S1) made inappropriate comments and suggestions, including but not limited to asking when the Complainant was "going to take care of him." 2. On April 23, 2010, during the course of a conversation about Complainant not being paid for her leave, S1 pulled her close and hugged her, getting close to her face. When Complainant got up to walk away, he grabbed Complainant by the waist, pulled Complainant to him such that her chest was directly in his face, telling her when women are emotional it's so much better. 3. On April 24, 2010, S1 told Complainant, "After the temper tantrum you pulled last night you need to get over here." After Complainant resisted, S1 walked over to Complainant, tapped his leg, and told Complainant he could make it all better and that he could make it go away. 4. On April 27, 2010, while Complainant was kneeling on the floor performing her duties, S1 told Complainant, "You are nothing but a tease. When are you going to let me tap that ass?" At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's April 14, 2011 motion for a decision without a hearing and issued a decision without a hearing on September 30, 2011. The Agency subsequently issued a FAD adopting the AJ's finding that the Agency was not liable for the supervisor's sexual harassment because the Agency successfully proved its affirmative defense to liability because it demonstrated that it "took prompt and effective action upon learning of the Complainant's claim." AJ Decision, p. 4. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant contends that the Agency has no affirmative defense against her hostile work environment harassment claim because Complainant suffered a tangible employment action. See generally, Complainant's Brief In Support Of Appeal (Complainant Brief).2 Further, Complainant contends that even if she did not suffer a tangible employment action, the Agency needs to show that it took prompt remedial action and that Complainant failed to avoid harm, or take advantage of any preventative or corrective measures. Id . II. Agency's Contentions On Appeal The Agency contends that it took prompt and effective remedial action because it commenced an investigation into the allegations within eight days of the last alleged incident, and immediately upon notice of the allegations, but concluded that corrective action was not appropriate because fact-finders were unable to corroborate any of Complainant's claims. Agency's Brief In Opposition To Appeal (Agency Brief), p. 7-8.3 ANALYSIS AND FINDINGS I. Decision Without A Hearing (Summary Judgment) An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. EEOC Management Directive 110 (MD-110), Chapter 9, at § VI.B (Aug. 5, 2015). The following discussion evinces that a decision without a hearing was not appropriate. II. Agency's Affirmative Defense To Complainant's Hostile Work Environment Claim A violation of Title VII may be predicated on either of two types of sexual harassment: (a) harassment that results in the employer taking a tangible employment action against the employee; or (b) harassment that, while not resulting in a tangible employment action, nevertheless creates a hostile work environment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998). To establish hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6, 9 (Mar. 8, 1994). If an alleged hostile work environment does not involve a tangible employment action, the Agency can avoid liability by establishing an affirmative defense consisting of two necessary elements: (1) that the Agency exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the Complainant unreasonable failed to take advantage of preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. "No affirmative defense is available...when the supervisor's harassment culminates in a tangible employment action." Id. "A tangible employment action in most cases inflicts direct economic harm," "such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 762. The AJ concluded that assuming Complainant established that she was subjected to the alleged hostile work environment, there was no basis for imputing liability to the Agency because it took prompt remedial action upon learning of Complainant's harassment claim. AJ Decision, p. 4.4 The AJ pointed out that upon learning of Complainant's claim, the Agency initiated a management inquiry, and the manager of human resources ordered that a sexual harassment fact- finding investigation be conducted. AJ Decision, p. 3. The Agency also reassigned S1 from the Newburg Post Office during the course of the investigation, but the fact-finding team did not recommend corrective action because Complainant's claims could not be substantiated. AJ Decision, p. 4. However, other evidence in the record brings into question whether the Agency took the prompt remedial action it was credited with taking. For example, while management became aware of the allegations on April 28, 2010, there is testimony from another employee that S1 was seen at the Post Office at least twice subsequent to Complainant reporting the alleged harassment, on May 5, 2010 and May 24, 2010, a time during which the Agency claims to have removed S1 from the Post Office. ROI, p. 26, 80. Next, the AJ did not address the second requirement of the Agency's affirmative defense, which requires it to make a showing that the Complainant unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or to avoid harm.5 This is a necessary element of the affirmative defense. EEOC Enforcement Guidance On Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002, Harassment By A Supervisor That Does Not Result In A Tangible Employment Action, Standard of Liability, Sect. V(A) (June 18, 1999). The Agency would be precluded from satisfying the affirmative defense if the Complainant promptly reported the conduct, and would be liable for whatever harm was caused by the conduct of the supervisor. Id. at Sect. V(B) n.46 ("an employee's prompt complaint to management forecloses the employer from proving the affirmative defense"); see also, Richardson v. New York Dep't of Corr. Serv., 180 F. 3d 426, 442-43 (2nd Cir. 1999)(defendant establishes Ellerth/Faragher affirmative defense by showing "both" that it acted appropriately and that employee did not complain; reversing summary judgment for defendant because plaintiff complained and reasonable juror could find employer's response inadequate). Further, Complainant asserts that she suffered a tangible employment action in that her pay was withheld due to leave being reported incorrectly by S1. These circumstances need to be explored because the Agency would not be able to assert an affirmative defense if S1's conduct resulted in a tangible employment action. Therefore, genuine issues of material fact render this complaint inappropriate for a decision on summary judgment. A hearing is appropriate to determine the following: (1) the extent and circumstances of the harassment; (2) whether the harassment included a tangible employment action in Complainant not being paid for her leave; and (3) if there was no tangible employment action, whether the Agency can successfully assert an affirmative defense to liability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the FAD, affirming the AJ's finding that the Agency proved an affirmative defense against Complainant's hostile work environment claim is VACATED. The complaint is REMANDED for a hearing in accordance with this decision and the Order below.6 ORDER The agency shall submit to the Hearings Unit of the EEOC Cleveland Field office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the AJ shall process the complaint in accordance with 29 C.F.R. § 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 12-9-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. 2 Complainant also contends that: (1) she was subject to disparate treatment discrimination because of her sex since she suffered an adverse tangible employment action in being deprived of leave pay she was otherwise qualified to receive; (2) male employees were not subjected to sexual advances or requests for sexual favors by S1 in exchange for being paid their leave benefit; (3) the fact-finding team and Agency's legal counsel refused to consider documentary evidence from a co-worker that S1 harassed her as well which would support Complainant's hostile work environment claim; and (4) taking all of the circumstances into consideration a reasonable woman in Complainant's situation would believe that S1's conduct was severe and pervasive creating a hostile work environment. See generally, Complainant Brief. 3 The Agency also contends that Complainant cannot prove a prima facie case of gender discrimination because she was not subjected to any adverse employment action, and regarding her hostile work environment claim, that the alleged conduct was not sufficiently severe or pervasive to constitute a hostile work environment. See generally, Agency Brief. 4 The AJ apparently made no finding on whether or not a hostile work environment existed prior to evaluating the Agency's liability, and determined that the Agency was not liable even if the conduct constituted a hostile work environment. In the AJ's words, "Complainant failed to establish a prima facie case of harassment." Since harassment claims are not evaluated through the McDonnell Douglas burden-shifting framework, it is not clear why the AJ utilizes this terminology. AJ Decision, p. 4. It is also not clear why the AJ inserted a disparate treatment analysis, concluding that Complainant was not subjected to discrimination based on her sex. AJ Decision, p. 5. 5 See, e.g., EEOC v. SBS Transit, Inc., No. 97-4164, 1998 WL 903833 at *1 (6th Cir. Dec. 18, 1998) (unpublished) (lower court erred when it reasoned that employer liability for sexual harassment is negated if the employer responds adequately and effectively once it has notice of the supervisor's harassment; that standard conflicts with affirmative defense which requires proof that employer "took reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer"). 6 To the extent that the AJ's decision concluded that Complainant was not subjected to disparate treatment sex discrimination, the FAD's implementation of this finding is also vacated. The AJ should determine whether Complainant wants to amend her complaint to include a claim of disparate treatment sex discrimination, as it does not appear that this was investigated or accepted for investigation. See, for e.g., ROI, p. 10, 136. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2012-0537 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120120537