Barbara B. Kaplan-Vetter v. Department of Justice 01987002 06-20-01 .Barbara B. Kaplan-Vetter, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency. Appeal No. 01987002 Agency No. I-96-6876 DECISION INTRODUCTION On September 23, 1998, Barbara B. Kaplan-Vetter (hereinafter referred to as complainant) initiated an appeal to the Equal Employment Opportunity Commission (Commission) with regard to her complaint of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The final agency action was dated September 1, 1998. Accordingly, the appeal is timely and is accepted by this Commission in accordance with 29 C.F.R. § 1614.405. Based upon a review of the record, and for the reasons stated herein, it is the decision of the Commission to REVERSE the final agency action. ISSUE PRESENTED The issue on appeal is whether complainant proved, by a preponderance of the evidence, that she was subjected to sexual harassment. BACKGROUND Complainant, a former Border Patrol Agent Trainee, filed a formal EEO complaint in March 1996, alleging that she had been subjected to sexual harassment. Specifically, complainant asserted that another Trainee (Trainee A) pushed her down and pinned her on his bed, kissed her on the mouth and neck, and placed his hands on her breasts. Complainant stated that, the next day, Trainee A stepped in front of her while she was walking and told her that she needed to learn how to play the game or no male Officers would want to work with her. Complainant stated that, prior to the December 27 incident, Trainee A had given her a prolonged hug, kissed his fingers then tried to put them to complainant's lips, and asked complainant if she liked him. The agency accepted complainant's complaint for processing, and conducted an investigation. The agency then provided complainant with a copy of the investigative report, and advised complainant of her right to request either a final agency decision or a hearing before an Administrative Judge. Receiving no response from complainant, the agency issued a final decision on September 1, 1998, finding insufficient evidence that complainant had been subjected to sexual harassment, and that, even if she had, officials took prompt remedial action upon learning of complainant's allegations. It is from this decision from which complainant now appeals. A review of the record reveals that complainant began training at the Border Patrol Academy (the Academy) in December 1995. Complainant indicated that she went to Trainee A's dorm room on December 27, 1995, to borrow an ironing board. Complainant stated that she and Trainee A discussed a book of poetry which was on his desk, and that Trainee A stated that she was pretty and smart. According to complainant, Trainee A then pushed her down and pinned her to his bed, kissed her on the mouth and neck, and fondled her. Complainant tried to push Trainee A off of her, and yelled for him to stop. Complainant stated that when another trainee (Trainee B) opened the door, she was able to crawl out from under Trainee A. Complainant stated that Trainee B did not observe the incident, but that Trainee A then proceeded to push Trainee B onto the floor, kissed her and put his hands under Trainee B's shirt. Complainant stated that, shortly thereafter, she and Trainee B left the room. Complainant noted that she told two other trainees about the incident.<1> Complainant indicated that, previously, Trainee A had given her a long hug and attempted to put his fingers on her lips after kissing them. Complainant also stated that Trainee A asked her if she liked him. Complainant noted that, on two instances after December 27, Trainee A walked very close to her without speaking. Complainant stated that she was afraid, and experienced physical illness, stress, and emotional difficulties. Complainant noted that in February 1996, a message was left on the answering machine at the home she shared with her fiancé in which a male whom she believed to be Trainee A stated that he met her at a hotel. Complainant left the Academy shortly thereafter, noting, on her personnel action form, that she had been assaulted.<2> The record contains a note dated January 2, 1996, which complainant wrote to a Supervisory Border Patrol Agent (Responsible Official 1; RO1). Therein, complainant described the December 27 incident. Complainant also noted that Trainee A commented to her the following day that she needed to learn how to play the game. Complainant stated that she had also observed a similar incident involving Trainee B. According to the record, RO1 referred the matter to another Supervisory Border Patrol Agent (Responsible Official 2; RO2), who was also an EEO Counselor. Complainant indicated that RO2 advised her that the agency would prefer to handle the matter internally, and that she could file an EEO complaint if she was not satisfied with their efforts to resolve the matter. Complainant stated that she informed various other management officials of the harassment. Complainant indicated that, during her exit interview, she was told that counseling was not available. Complainant also noted that she was told management could not guarantee she would not have to work with Trainee A, and could not reassign her to an Immigration Inspector position. Trainee A denied sexually harassing complainant. He stated that he once “consoled” complainant by putting his arm around her when she appeared to be upset. Trainee A indicated that he did not recall the December 27 incident, but denied forcing himself on complainant or Trainee B. Trainee A also denied making any comment about complainant learning to play the game or leaving messages on complainant's answering machine. Trainee A stated that he was called into RO2's office on January 2, 1996, and told that someone had made allegations of sexual harassment against him. Trainee A asserted that complainant indicated she was having problems with physical training. Trainee A also opined that, prior to the allegations, complainant had difficulty relating to the individuals in her class, but that afterward, her classmates seemed to come to her defense. Trainee A noted that the Section Leader of complainant's class confronted him about the allegations, and stated the entire class was watching him. One trainee (Trainee C) advised the EEO Counselor that complainant told him about the incident. The EAP Counselor also indicated that complainant advised him of a sexual assault. According to the EEO Counselor's report, Trainee B stated that Trainee A had once kissed her in a manner she considered inappropriate. Trainee B admitted that during one instance she was “play fighting” with Trainee A in complainant's presence, and that Trainee A was tickling her and “rolling her around” while she was yelling for him to stop. Trainee B stated that she knew Trainee A was kidding, but that complainant was disturbed by Trainee A's behavior. Trainee B acknowledged that complainant told her she was assaulted by Trainee A, and seemed in emotional shock at the time. Trainee B noted that, after the tickling incident in Trainee A's room, complainant ignored Trainee A whenever she saw him and stated she was depressed. Trainee B opined that the incident with Trainee A may have led to complainant's leaving the Academy. RO2 noted that he spoke with complainant about her allegations on January 2, 1996. RO2 stated that he explained to complainant that she could file an informal complaint with the Academy or file an EEO complaint. RO2 stated that after complainant indicated that she did not initially wish to file an EEO complaint, he advised her that he would instruct Trainee A to stay away from her, and likely place a memorandum in Trainee A's file. RO2 spoke with the Senior Border Patrol Agent (Responsible Official 3; RO3) about the incident.<3> RO2 then spoke with Trainee A, and, although he did not mention complainant's name, Trainee A acknowledged hugging complainant on one occasion. RO2 opined that, despite Trainee A's denials, he believed the December 27 incident did occur and that Trainee A attempted to kiss complainant. Nevertheless, RO2 stated that he did not believe Trainee A was as aggressive as complainant claimed such as to “validate” a sexual harassment complaint. RO2 noted that he believed complainant raised the allegations of sexual harassment in part because of her “immaturity” in relating to males in her class. RO2 advised Trainee A of the agency's sexual harassment policy but did not pursue any further action. The Assistant Chief Patrol Agent (Responsible Official 4; RO4) also acknowledged that he was aware of complainant's allegations. He advised complainant that the agency would not tolerate sexual harassment, and would file charges against Trainee A if there was sufficient evidence. RO4 noted that Trainee A denied “almost all or all” of the allegations, stating that he advised Trainee A of the consequences of violating the sexual harassment policy. RO4 discussed the matter with the Deputy Chief Patrol Agent (Responsible Official 5; RO5), and recommended that the matter be referred to the Inspector General for investigation, but RO5 decided not to take further action. The individual who conducted complainant's exit interview (Responsible Official 6; RO6) acknowledged that he read the letter complainant initially wrote to RO1, and was aware complainant had spoken with RO2 regarding EEO issues. Nevertheless, RO6 averred that he did not recall the exact reason complainant gave for leaving the Academy, or that complainant mentioned sexual harassment. The record includes a policy statement on sexual harassment and an EEO policy statement, both dated November 10, 1993. ANALYSIS AND FINDINGS 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). To establish a claim of sexual harassment, complainant must show that: 1. she belongs to a statutorily protected class; 2. she was subjected to unwelcome conduct related to her gender, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; 3. the harassment complained of was based on sex;<4> 4. the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive working 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. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Based upon a review of the evidence of record, the Commission finds that complainant has satisfied elements 1 through 4 above. Complainant belongs to a statutorily protected class. Further, we find sufficient evidence that complainant was subjected to physical touching by Trainee A which was unwelcome. It is noted that Trainee A denied that the December 27 incident occurred, and there were no witnesses to the incident. Nevertheless, the record contains evidence which supports a finding that complainant was touched as alleged. Specifically, several individuals, including Trainees B and C and the EAP Counselor, acknowledged that complainant told them about the incident.<5> Further, Trainee B, although she did not observe the incident, described complainant as being in shock thereafter, and stated that complainant then avoided Trainee A. Finally, after speaking with both complainant and Trainee A, RO2 stated that he believed the December 27 incident did in fact occur. It is noted that Trainee A acknowledged that he had previously hugged complainant, and complainant stated that he approached her on two occasions after she reported the December 27 incident in a manner which made her afraid. Thus, we find that the incidents were “sufficiently severe [and] pervasive to alter the conditions of complainant's employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Further the Commission finds that complainant has satisfied Element 5. The Commission notes that the agency would be liable for harassment by a co-worker or non-employee if it knew of the harassment and failed to take immediate and appropriate corrective action.<6> Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (March 19, 1990); Owens v. Department of Transportation, EEOC Request No. 05940824 (September 5, 1996). Complainant reported the incident to her supervisor, RO1, who referred her to RO2. While RO2 acknowledged that he believed the incident occurred, he discounted the severity of Trainee A's actions by stating that he did not believe them to be sufficiently aggressive to “validate” a sexual harassment claim. Thus, RO2 merely advised Trainee A of the agency's sexual harassment policy.<7> It is noted that even an isolated occurrence can constitute sexual harassment if that occurrence is sufficiently severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Even assuming that RO2's qualification of his belief to include only an attempt to kiss complainant was true, the Commission is troubled by RO2's apparent belief that such an action by an individual who admittedly hugged complainant in the past, would not constitute sexual harassment. The Commission would also question RO2's statement that he believed complainant made the sexual harassment allegations in part because of her “immaturity” in relating to males in her class. RO2 stated that he was not aware of any incidents of harassment after he spoke with Trainee A. However, there is no evidence RO2 ever spoke with complainant again regarding the matter. Complainant reported the phone message to management, and informed several officials that she was resigning due to incidents of harassment.<8> It is noted that an employer should make follow-up inquiries to make certain the harassment has not resumed, and the victim has not suffered retaliation. EEOC Notice No. N-915-050, at 30 (March 19, 1990). RO4 stated that he also advised Trainee A of the sexual harassment policy. Nevertheless, RO4 authored a report recommending that the matter be forwarded to the Inspector General for further investigation, and no further action was taken. Complainant asserted that when she asked for assurances that she would not have to work with Trainee A in the future, she was told that none could be given. Complainant's request for a transfer to an Immigration Inspector position was also denied. Therefore, based upon the circumstances of this case, the Commission finds that the agency failed to take appropriate corrective actions. Thus, we find that the agency was liable for the sexual harassment. CONCLUSION Based upon a review of the record, and for the foregoing reasons, it is the decision of the Commission to REVERSE the agency's final decision, and find that complainant was subjected to sexual harassment. ORDER The agency is ORDERED to take the following remedial action: 1. The agency shall take whatever actions it deems necessary, including but not limited to the actions set forth below, to ensure that employees are not subjected to sexual harassment in the future. 2. The agency shall conduct training for Responsible Officials 1, 2, 3, 4, 5 and 6, as well as Trainee A, addressing their responsibility under equal employment opportunity law. The training shall place special emphasis on prevention and elimination of sexual harassment. 3. The agency shall conduct a supplemental investigation to determine whether complainant is entitled to compensatory damages for the act of harassment. Within fifteen (15) days of the date this decision becomes final, the agency shall notify complainant of her right to present evidence to the agency regarding her claim for damages, including medical bills and statements from family members and doctors. Complainant shall provide objective evidence that the damages in question were a result of the agency's discrimination and of the amount of the claimed damages.<9> Thereafter, the agency shall issue a final decision as to complainant's compensatory damages claim. The supplemental investigation and issuance of the final decision must be completed within sixty (60) calendar days of the date this decision becomes final. 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 evidence that corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Border Patrol Academy 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 (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900) 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 19848, Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900) 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 ______06-20-01____________________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to claimant, claimant's representative (if applicable), and the agency on: _________________________ Date _________________________ 1The EEO Investigator indicated that the agency's Personnel Office was unable to locate the individuals because complainant did not know which class they were in at the Academy. 2It is noted that complainant did not raise the issue of constructive discharge in the complaint herein. 3RO3 stated that he was aware that complainant had made allegations of sexual harassment against Trainee A, but that he did not know the specifics thereof. 4In addition to considering conduct that is explicitly sexual in nature, the Commission will consider other conduct or comments which are related to the complainant's gender. 5The Commission questions the agency's assertion to the EEO Investigator that it was unable to locate additional witnesses because complainant was not able to specify the class they were in at the Academy. Nevertheless, we will not draw an adverse inference from this action. 6There is no evidence that Trainee A ever acted in a supervisory capacity in relation to complainant. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 7There is no evidence that RO2 placed a memorandum in Trainee A's file, as he initially told complainant he would likely do, and, in fact, RO2 later averred that he took no action beyond explaining the sexual harassment policy. 8We find RO6's statement that he did not recall complainant mentioning sexual harassment during her exit interview not to be credible given his admission that he read the initial letter complainant wrote to her supervisor describing the December 27 incident. 9The Commission's decision in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), describes in detail the type of evidence which should be presented in support of a claim for compensatory damages.