U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erline S.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 0120160618 Agency No. USM201000705 DECISION On September 25, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's August 3, 2015 final decision (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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, that part of the Agency's FAD which found that Complainant was not subjected to a hostile work environment based on sex and reprisal is REVERSED. However, that part of the Agency's FAD which found that Complainant was not subjected to race, national origin, disability or age discrimination is AFFIRMED. ISSUES PRESENTED Has Complainant proven by a preponderance of the evidence that she was subjected to a hostile work environment based on sex and reprisal? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Program Analyst at the Agency's United States Marshals Service, Northern District of California facility in San Francisco, California. Complainant had been in her position since 2007. The Administrative Officer was Complainant's first-level supervisor (S1). Report of Investigation (ROI), p. 5. Complainant second-level supervisor was the Chief Deputy U.S. Marshall (Chief Deputy). Id. In September 2008, Complainant and the Chief Deputy had a physical encounter. ROI, p. 5. Complainant described the encounter as the Chief Deputy grabbing her and caressing her down the back; Complainant characterized the incident as sexual in nature. Id. The Chief Deputy maintains that he may have "brushed against her in the tight space near the copy machine." ROI, p. 42. Complainant immediately reported the incident to S1, who recounted that Complainant was "in tears" and "visibly upset, scared and emotionally shaken." ROI, p. 7. Complainant reported to S1 that the Chief Deputy had grabbed her and caressed her back while she was filing in an office. ROI, p. 7. S1 observed that Complainant was afraid and distressed by the Chief Deputy after the incident. S1 stated that she, in turn, reported the incident to her supervisor, a U.S. Marshall (S2), who informed her that he would counsel the Chief Deputy so that such an incident does not occur again. ROI, p. 7. The Chief Deputy denied that S2 informed him about Complainant's allegation. ROI, p. 42. Following the report of unwanted touching, Complainant, S1 and other employees observed that the Chief Deputy's behavior toward Complainant became aggressive and abusive during the course of daily interactions in the office.2 See, e.g., ROI, p. 90. There are numerous instances of conduct Complainant and other employees observed. S1 observed that Complainant became upset and cried when the Chief Deputy would throw documents in her inbox without saying anything to Complainant, and would startle Complainant when she was working in front of her computer. ROI, p. 90, 103. S1 observed that the Chief Deputy treated Complainant in a rude and unfriendly manner and would give her dirty looks. ROI, p. 90-91. S1 cited an example where the Chief Deputy asked Complainant for some documents and threw it back to her instead of passing it. ROI, p. 7. S1 stated that the Chief Deputy raised his voice at Complainant, mainly in meetings, each time Complainant asked for supporting documents or made suggestions. Id. S1 observed that the Chief Deputy gave Complainant "intimidating looks each time [Complainant] explained procurement procedure in the meetings as if he does not have time to listen to [Complainant's] presentation." ROI, p. 103. Further, S1 observed that employees associated with the Chief Deputy, such as the Criminal Supervisor, would roll their eyes at Complainant when she spoke, and would speak to her in an unfriendly manner and rude tones. ROI, p. 7. S1 reported that each time Complainant would go to the copy machine section in the office, she would return in tears because male supervisors in that area gave her "intimidating stares" when she entered each section office as if she did not have permission to walk into those sections. ROI, p. 104. When one supervisor was asked whether he gave Complainant "dirty looks," he responded that "at times the complainant's actions were not looked upon favorably which may have manifested in non-verbal expressions as well as spoken feedback." ROI, p. 111. Finally, on September 3, 2010, while S1, another employee (E1), and Complainant were working late, S1 testified that the Chief Deputy barged into the conference room they were working in, and demanded that they leave. S1 observed that the Chief Deputy "came within five feet of Complainant and began waving a clenched fist in an up and down motion yelling 'I am the Chief and I have the right to tell you people to get out within 15 minutes.'" ROI, p. 7. Complainant explained that the Chief Deputy was standing in front of her as if he was going to hit her. ROI, p. 106. E1 also attested to the September 3, 2010 incident. E1 stated that the Chief Deputy demanded that they leave the conference room, otherwise they would get written up. ROI, p. 93. E1 observed that the Chief Deputy became angrier after Complainant informed him that they were doing reimbursements. Id. E1 stated that it was scary to see the Chief Deputy react in that manner-his anger, intimidating body motions and raising his voice. Id. Complainant informed another employee (E2) of the Chief Deputy's unwanted touching, and Complainant expressed to E2 that she was dealing with harassment in the work place on a daily basis. ROI, p. 15. E2 attested to Complainant being "very much emotionally disturb[ed]" in the work place. ROI, p. 15. Complainant offered extensive testimony on the nature of the Chief Deputy's conduct, which included the initial incident of unwanted touching, and subsequent yelling and intimidation. ROI, p. 6. Complainant believed that the Chief Deputy engaged in such conduct against her because he believed that she was an Asian female and would not defend herself. ROI, p. 6. According to Complainant, the Chief Deputy believed her to be "a shy, passive and weak Asian woman whom he could molest without any consequences." ROI, p. 3. On November 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (United States of America), sex (female), disability (partial blindness), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On September 25, 2008, Complainant was subjected to sexual harassment when the Chief Deputy grabbed her and caressed her back; 2. Complainant reported the September 2008 unwanted touching to management including her supervisor, and since then, their attitude has changed towards her and it has become a hostile work environment; 3. The Chief Deputy often raises his tone at her and is hostile in his gestures and motions; 4. Others in the office associated with the Deputy Chief have also become non-responsive to Complainant by shunning her and give her dirty looks; 5. The Criminal Supervisor gives Complainant dirty looks and told others that Complainant needs to receive permission to go to their side of the office; 6. On September 3, 2010, the Chief Deputy yelled and made threatening gestures at Complainant and some co-workers for working late. The Agency initially dismissed all but two of Complainant's allegations for failure to state a claim, but an October 21, 2014 Commission decision reversed the Agency's dismissal of those claims and remanded the complaint to the Agency for further processing. EEOC Appeal No. 0120112862 (Oct. 21, 2014). At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI 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 FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant did not prove that it had subjected her to the alleged discrimination and hostile work environment based on race, national origin, sex, disability, age, and reprisal. This is the subject of the present appeal. CONTENTIONS ON APPEAL Complainant contends that the hostile work environment perpetuated by the Chief Deputy continues citing to two examples.3 The Agency does not offer additional contentions on appeal. STANDARD OF REVIEW This matter was decided upon without a hearing. Accordingly, we are required to consider the matter de novo. 29 C.F.R. § 1614.405(a); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015). 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." Id. at § VI.A. ANALYSIS AND FINDINGS The Agency found that Complainant did not prove by a preponderance of the evidence that she was subjected to a hostile work environment based on sex or reprisal. A hostile work environment is an amalgamation of incidents that "collectively constitute one unlawful employment practice." National Railroad Passenger Corp. v. Morgan, 536 U.S. at 117 (quotations omitted). Unlike discrete acts, the incidents that comprise a hostile work environment claim "cannot be said to occur on any particular day" and by their "very nature, involve repeated conduct." Id. at 115. To establish a claim of hostile work 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). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that appellant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 524 U.S. at 764-765; Faragher v. City of Boca Raton, 524 U.S. at 807-808; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Complainant is a member of statutorily protected class because she is female. Complainant also engaged in protected EEO activity by reporting an incident of sexual harassment consisting of unwanted touching. Complainant was subjected to unwelcome verbal and physical conduct when she was grabbed and caressed down her back, and subsequently when the Chief Deputy's conduct amplified against her in the form of yelling, intimidation and other aggressive actions during his daily interactions with Complainant. Next, the incidents Complainant allege are based upon sex and protected EEO activity. Evidence indicates that it was more likely than not that the incident of unwanted touching was sexual in nature. Complainant was extremely emotional after the incident and reported it immediately to her supervisor, S1. Complainant also informed another employee of the incident who observed that Complainant was clearly upset by it. The Chief Deputy admits that there was some physical contact, but characterized it as simply being in a tight space. Complainant's reaction to the incident, and the fact that she reported the conduct immediately, counsels toward a finding that it was more than a mere accidental touch. The Chief Deputy's increased aggressive behavior toward Complainant after the report indicates that the conduct was premised on the report of unwanted touching, which constitutes protected EEO conduct. S1 testified to a marked change to the Chief Deputy's behavior toward Complainant immediately following her report of the touching, as did Complainant. Co-workers confirmed Complainant's assertions regarding the nature of the Chief Deputy's behavior toward Complainant. Complainant attested that the Chief Deputy would engage in conduct such as yelling at her both because she reported the unwanted touching, and because he thought she was a "weak" woman who would not defend herself. ROI, p. 79-80. The alleged conduct, considered in totality over a two year period, rose to the level of a hostile work environment based on sex and reprisal because it was pervasive. Complainant experienced an initial instance of explicitly sexual conduct where a second-level supervisor, the Chief Deputy of her division, engaged in unsolicited grabbing and caressing of Complainant down her back in an office or confined space. At the time, Complainant was extremely junior to the Chief Deputy, and according to Complainant, the Chief Deputy thought her to be "shy" and "passive" and that she would not speak up about the touching. After Complainant's report of the conduct in September 2008, the Chief Deputy became aggressive toward Complainant during everyday work place interactions, up until September 2010.4 This conduct permeated the workplace and included yelling, throwing paper files at Complainant, startling and laughing at Complainant and constantly giving her intimidating looks and using a nasty tone of voice when speaking to her. According to Complainant and her witnesses, the conduct was ongoing and occurred on a daily basis. There is also evidence of employees associated with the Chief Deputy mistreating Complainant. According to Complainant, other employees observed the Chief Deputy's harassing behavior toward Complainant and therefore found it permissible to harass her as well. When one employee, the Criminal Supervisor, was asked whether he gave Complainant "dirty looks," the individual did not deny it and stated that "at times the complainant's actions were not looked upon favorably which may have manifested in non-verbal expressions as well as spoken feedback." ROI, p. 111. Given the duration and nature of the allegations, and the evidence in support of the allegations, it is apparent that Complainant's work environment was objectively hostile because her manager's actions were pervasive, and Complainant subjectively believed that the environment was hostile and abusive. See Harris, 510 U.S. at 21-22 (an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such). Here, there is a basis for imputing liability to the Agency because the Chief Deputy was a supervisor and there is no indication that the Agency took sufficient action to prevent or correct the hostile work environment, which continued for approximately two years after the initial harassing incident was brought to management's attention. Therefore, Complainant proved by a preponderance of the evidence that she was subjected to a hostile work environment based on sex and reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, that part of the Agency's FAD which found that Complainant was not subjected to a hostile work environment based on sex and reprisal is REVERSED. However, that part of the Agency's FAD which found that Complainant was not subjected to race, national origin, disability or age discrimination is AFFIRMED. The complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. Provide a minimum of four hours of in-person training on sex and reprisal discrimination to employees of the U.S. Marshals Service, Northern District of California, including the Criminal Supervisor specifically identified in the record, placing special emphasis on an employer's obligation not to harass employees based on sex and reprisal. 2. Conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below. 3. Restore any sick or annual leave taken by Complainant to avoid or recover from the harassment. 4. The Agency shall consider taking appropriate disciplinary action against any responsible officials who remain employed at the Agency. 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). 5. Post copies of the Notice discussed below at the Northern District of California facility in San Francisco, California. POSTING ORDER (G0617) The Agency is ordered to post at its United States Marshals Service, Northern District of California facility 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) 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 the date this decision was issued. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 thetime 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: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 02/22/18 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Additionally, S1 stated that the Chief Deputy engaged in hostile gestures toward her directly after she reported the incident of unwanted touching, which Complainant told her about. ROI, p. 103. 3 Complainant's contentions will not be addressed or described in detail because the alleged discriminatory incidents occurred after the present appeal was filed. 4 The Chief Deputy retired in September 2010. ROI, p. 113. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-0618 10 0120160618