U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danita S.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120161096 Agency No. 2015-25956-FAA-03 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as an Air Traffic Control Specialist at the Agency's New York Air Route Traffic Control Center in Ronkonkoma, New York. On December 18, 2014, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on national origin (Chinese American), sex (female), and in reprisal for prior protected EEO activity. By letter dated July 17, 2015, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: On September 18, 2014, a co-worker showed Complainant on his tablet an exchange of messages from [a named web based game] in which numerous controllers in your building participate, and in which one make controller (C1) made sexual comments about [her]. You brought this to the attention of management, showing management both the screenshots of the exchange of messages, as well as a transcript that [she] prepared. Due to [Complainant's] emotional distress, [her] manager granted [her] two days of administrative leave and subsequently referred [her] to EAP. However, [her] supervisors failed to remove the offending controller (C1) from the control room and [her] request to be reassigned off the control floor or to another facility was denied.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its December 8, 2015 final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found: [r]egarding the bases of national origin, and sex, Complainant established that she was subjected to unwelcome conduct related to her national origin and sex in the form of the comments [a named co-worker] made about her in the chat room. The harassment complained of was based on her national origin and sex. In addition, we find that the graphic nature of the comments made them humiliating and the fact they were made in a chat room in which other [co-workers] participated also made the single incident severe; therefore, the harassment did unreasonably interfere with her work performance as the comments created a hostile and offensive work environment. Final Agency Decision at 19. The Agency determined, however, that Complainant did not establish that last prong of her case - that there is a basis for imputing liability to the Agency - because it took prompt remedial action. Id. The Agency noted that it initiated an internal investigation once notified of the matter and issued C1 a letter of reprimand. Id. at 20. The Agency further found that Complainant did not establish that she was subjected to unlawful retaliation. Id. at 19. The instant appeal followed. Complainant, through her attorney, asserts that management gave her two days of administrative leave and then insisted she return to work on the control room floor. A named manager (M1)3 insisted that she "battle through it" and made a comment to another employee that "boys will be boys." Complainant further asserts that "[her] union representative was the individual responsible for the eventual transfer of complainant out of her position alongside her abuser. Not only did [M1] fail to remove the offending controller off the control room floor, but was insistent in forcing the complainant back, exacerbating the hostile work environment...The Agency could have removed the abuser...from the floor for the time Complainant would be working but they did not do that." Complainant's Brief in Support of Appeal at 4, 10. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Harassment Claim In order to establish a case of sexual harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). The Agency has already conceded in its final decision that Complainant has established the first four elements of her case. To establish the fifth prong, where, as here, the alleged harassment is perpetrated by a co-worker, liability is imputed to the employer if it knew or should have known of the misconduct and failed to take immediate and appropriate corrective action. What is appropriate action will necessarily depend on the facts of the particular case, the severity and persistence of the harassment, and the effectiveness of any remedial step. See id. In its final decision, the Agency also found that Complainant brought the harassing incident to the attention of management. However, the Agency found that management took prompt corrective action. Thus, it found that Complainant did not establish a basis for imputing liability to the employer. Final Agency Decision at 19. We, however, find that the Agency failed to take appropriate corrective action. While we acknowledge that the Agency initiated an investigation shortly after management was informed of the offensive comments at issue and that the Agency issued C1 a Letter of Reprimand which was to remain in his personnel file for two years (ROI at 416, 298-304), we find that these actions were insufficient to meet the Agency's full responsibility to take appropriate corrective action. Specifically, the Agency failed to remove C1 from the control room floor during the course of the investigation. The Commission has stated that an employer may need to take intermediate action pending the investigation of a claim, such as transferring the alleged harasser, to ensure further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties, transferring the alleged harasser, or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. See EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999). In the instant matter, the Agency's inaction with respect to not removing C1 from the control room floor during the investigation, resulted in Complainant having to request leave and/or a reassignment. Based on the foregoing, we find that the Agency failed to take appropriate corrective action. Thus, Complainant has established a basis for imputing liability to the Agency. Retaliation Claim We further find that the Agency subjected Complainant to unlawful retaliation when it did not transfer C1 to another shift or facility or place him on administrative leave during the pendency of the investigation. In an affidavit, Complainant asserts, "I had to fight tooth and nail to receive a support position during the investigation. It took over a week of my convincing and contacting upper management before he finally relented and granted me a position. I was also threatened with AWOL...I had no problem continuing work as an Air Traffic Controller in the control room as long as the harasser was removed during the investigation." ROI at 170. Complainant further asserts that "not only did [M1] fail to remove the offending controller off the control room floor but was very insistent in forcing me back to the hostile work environment."4 ROI at 164. Complainant states that "because of [M1's] inaction by not removing the harasser during the investigation, I requested to be removed myself." ROI at 162. We find that Complainant established a prima facie case of retaliation with respect to the Agency's failure of not moving C1 to another shift or facility or placing him on administrative leave during the investigation, which resulted in Complainant having to request leave and/or a reassignment. Complainant informed Agency management of her allegations of sexually offensive comments by C1. This constitutes protected activity. The record is devoid of evidence that the Agency took some type of action (change C1's schedule, place C1 on administrative leave etc.) to prevent C1 from working on the control room floor with Complainant during the course of the investigation, which resulted in Complainant having to take leave and/or request reassignment. We find that the Agency's inaction was reasonably likely to deter Complainant or others from engaging in protected activity. Even the Agency, in its final decision notes that "[i]t is not clear why it was suggested that Complainant change her schedule rather than the alleged harasser..." Final Agency Decision at 19 n.5. The Agency failed to articulate a legitimate, nondiscriminatory reason for not taking some type of measure to remove C1 from the control room floor during the investigation. The Commission has stated that an employer may need to take intermediate action pending the investigation of a claim, such as transferring the alleged harasser, to ensure further harassment does not occur. The Commission has stated that the complainant in these matters should not be involuntarily transferred or otherwise burdened, because such measure could constitute unlawful retaliation. See EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999). Based on these circumstances, we find that Complainant was subjected to unlawful retaliation when the Agency did not take steps to ensure that C1 was not working with Complainant on the control room floor during the investigation, threatening her with AWOL if she did not return to the control room floor, had Complainant take leave rather than removing C1, and ultimately forced Complainant to request reassignment to another position due to the Agency's inaction in removing the alleged harasser during the investigation. See Negron-Oliver v. Dep't of Justice, EEOC 01A35351 (Sept. 30, 2005) (finding the Agency subjected a complainant to unlawful retaliation when it removed her from an agency workgroup after she alleged that her co-worker sexually harassed her).5 Accordingly, we REVERSE the Agency's final decision finding no discrimination with respect to Complainant's harassment and retaliation claims and we REMAND these matters to the Agency to take corrective action as set forth in the ORDER below. ORDER To the extent, it has not already done so, the Agency is ORDERED to take the following actions: 1. Within sixty (60) calendar days from the date this decision is issued, the Agency shall offer Complainant the opportunity to retroactively restore her to her former position of Air Traffic Control Specialist. Complainant shall be given fifteen (15) days from receipt of the offer of restoration within which to accept or decline the offer. We note that this offer shall be voluntary and if she declines to return to her former position, the Agency shall allow her to remain in her current position. 2. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the unlawful harassment and retaliation. The Agency shall afford Complainant an opportunity to establish a causal relationship between the unlawful harassment and retaliation and any pecuniary and non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she may be entitled to and shall provide all relevant information requested by the Agency. Within ninety (90) calendar days from the date this decision is issued, the Agency shall issue a new decision determining Complainant's entitlement to compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall pay the specified amount in compensatory damages within thirty (30) calendar days of its determination of the amount owed to Complainant. 3. Within sixty (60) calendar days from the date this decision is issued, Complainant shall restore any leave Complainant may have taken due to the Agency's unlawful harassment and retaliation. In addition, the Agency within sixty (60) calendar days from the date this decision is issued, shall compensate Complainant for any Leave Without Pay taken due to the Agency's unlawful harassment and retaliation. 4. Within sixty (60) calendar days from the date this decision is issued, the Agency shall provide a minimum of eight (8) hours of EEO training to the responsible management officials, including M1, with a special emphasis on harassment and retaliation. 5. Within sixty (60) calendar days from the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the responsible management officials, including M1. The Commission does not consider training to be a 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). 6. The Agency shall pay Complainant reasonable attorney's fees and costs as set forth in the paragraph below entitled "Attorney's Fees." 7. The Agency shall post a notice in accordance with the paragraph entitled "Posting Order." POSTING ORDER (G0617) The Agency is ordered to post at its New York Air Route Traffic Control Center in Ronkonkoma, New York 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 the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 17, 2018 __________________ 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 The record reflects that the Agency initially issued a final decision dated January 9, 2014 dismissing the formal complaint on procedural dismissal grounds. In EEOC Appeal No. 0120151206 (July 1, 2015), the Commission's Office of Federal Operations (OFO) reversed the Agency's procedural dismissal and remanded the matter back to the Agency for investigation. 3 The record reflects that M1 was the Air Traffic Manager during the relevant time period. 4The record contains a Record of Conversation from M1 to Complainant dated September 25, 2014. Therein, M1 asserts that "[g]iven the unverified origination of the comments and references extracted from a social media venue and the inability at this time to identify specific individuals, I have no reason not to return you to operational duty status." ROI at 173. 5 We note that Complainant, in her affidavit, raised other alleged incidents of retaliation such as she had her headset stolen from her former work area and that C1 made a comment to a co-worker to watch out for Complainant. However, we note that Complainant's complaint was not amended to include these claims. Thus, we decline to address them further herein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161096 9 0120161096