Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120111865 Agency No. ARWRAMC08AUG03367 DECISION Complainant filed an appeal from the Agency's December 22, 2010, final decision 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED 1. Was there sufficient evidence in the record to establish that Complainant, an 18-year old summer intern, was subjected to unwelcome verbal and physical sexual conduct by her supervisor and mentor, which included asking for a picture of her in her bikini and kissing her on her neck and lips? 2. Did the Agency establish an affirmative defense to liability, in part, by proving that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise? BACKGROUND In the summer of 2008, Complainant participated in the Science and Engineering Apprenticeship Program (SEAP), a program that placed high school students in Army laboratories and other offices as interns or apprentices. Complainant accepted a position to work for eight weeks, from June 23, 2008 to August 15, 2008, in the Department of Medical Audio Visual Services, Division of Medical Audio Visual, Library, and Statistical Services, at the Walter Reed Army Institute of Research in Silver Spring, MD.1 When she began working at the Agency, Complainant had just graduated from high school and turned 18. She was supervised and mentored by the male Chief of the Department of Medical Audio Visual Services (supervisor). According to Complainant, the supervisor engaged in increasingly inappropriate conduct that culminated in the supervisor kissing her on the neck and mouth four days before the summer program ended. Specifically, Complainant testified that the supervisor began referring to her as "his girl" on or around July 15, 2008. Then on or around July 18, 2008, when she was saying goodbye before going on leave for a few days, the supervisor hugged her, promised he would see her when she returned, and commented that he would miss her. During the week of July 28, 2008, the supervisor again allegedly referred to Complainant as "his girl," and in his office asked her, "When were we getting married?" Complainant did not respond to him and informed him that she would be going on a family vacation to a beach. The supervisor allegedly asked her to send him pictures of her while she was at the beach. He asked her if the photos would be of her in her bathing suit, and requested that she mark her photos as "personal" when sending the pictures to him. Finally, on August 11, 2008, Complainant attended an 8:00 am meeting with the supervisor and two other student interns at the supervisor's office. At the end of the meeting, Complainant asked the supervisor if she could leave early on August 15, 2008 because she had a doctor's appointment to get immunization shots before she began college. The supervisor dismissed the other student interns and asked them to close the door to his office. According to Complainant, she began explaining about her college orientation, and asked how she could receive the last payment of her stipend if she were to leave early on the last day of the program. Then the supervisor allegedly asked her to hold her neck up. According to Complainant, she thought there was something on her neck, so she did as he asked and continued speaking. The supervisor came to where she was sitting, placed his finger on his lip to signal to be quiet, and then pulled her neck back with both of his hands, kissed her neck, and then kissed her directly on her lips. He then pulled her up from her chair and put her arms around his neck. Someone knocked on the door. Initially, Complainant stated that she was too stunned to react, but then she composed herself, said she had work to do, and left. Complainant immediately told several people about this incident: two student interns, her mother, and her boyfriend. She then reported the incident to the Director of the Division of Medical Audio Visual, Library, and Statistical Services. The Director interviewed Complainant, Complainant's mother, the supervisor, an administrative assistant who worked outside the door to the supervisor's office, a visual information quality assurance specialist who maintained she had knocked on the supervisor's door on August 11, 2008, a student intern who testified that she was the one who had knocked on the supervisor's door, and another student intern. The Director issued several memoranda that attempted to reconstruct the content of the interviews. Complainant asked not to return to the program for the remaining four days, which the Agency allowed her to do. Agency Investigation On August 21, 2008, the Agency appointed an investigating officer to formally investigate Complainant's allegations of misconduct. After collecting sworn statements from several witnesses, the investigating officer found on October 31, 2008 that the supervisor had made unwanted advances and kissed Complainant. My finding is based on the collaborating statements of [two summer interns.] Their statements clearly indicate that [Complainant] was talking to them about these allegations as they were happening. In this "He said, She said" account, I can't find any reason why [Complainant] would lie about the kissing incident or the repeat allegations of Supervisor Misconduct. [The supervisor] alleges that [Complainant] is a poor worker and that she wanted Friday afternoon off as potential reasons. I find it difficult to believe that [Complainant] would make up a very serious allegation to get out of work with only 4 days left in the program. I believe that there has been a pattern of Supervisor Misconduct . . . . The investigating officer recommended that the Agency counsel the supervisor, train him about sexual harassment, and prohibit him from mentoring students or participating in mentorship programs. EEO Complaint On November 17, 2008, Complainant filed an EEO complaint, alleging that she was sexually harassed when: 1. on or around July 15, 2008, her supervisor hugged her; 2. during the week of July 28, 2008, the supervisor asked Complainant "when are we getting married," and to send him photographs of herself in a bathing suit; 3. on August 11, 2008, the supervisor pulled Complainant's neck back and kissed her on the neck and lips. He then pulled her from her chair and placed her arms around his neck. Reprimand for Supervisor On December 12, 2008, the Agency officially reprimanded the supervisor for discourteous conduct, and required him to attend "experiential leadership training." The Agency ceased designating the supervisor as a management official who could interact with the Science and Engineering Apprenticeship Program, and prohibited him from participating in any mentorship programs. The official reprimand remained in his official personnel folder for two years. EEO Procedural History Following an investigation, the Agency, in error, forwarded the complaint file to an EEOC hearings unit to schedule a hearing. Complainant then advised the hearings unit that she did not request a hearing and was expecting a final agency decision (FAD). An EEOC Administrative Judge returned the case to the Agency to issue a final agency decision. The Agency's FAD dismissed the complaint, reasoning that Complainant was a student, not an Agency employee. But in EEOC Appeal No. 0120101877 (Sept. 21, 2010), the Commission determined that Complainant was an Agency employee for EEO purposes. The Commission reversed the Agency's dismissal of the complaint and remanded the matter back to the Agency to supplement the record and issue a final agency decision on the merits. Final Agency Decision on the Merits On December 22, 2010, the Agency issued another FAD, this time concluding that Complainant failed to prove that she was sexually harassed. The Agency found the supervisor to be credible in denying that any of the incidents happened as described by Complainant. Rather, he maintained that: * he used the term "my girl" when asking whether a male intern was playing a movie clip of "Forrest Gump." * He used the term "will you marry me" to a contractor during a conversation they were having about a man with six wives and the potential tax savings such an arrangement could bring. * He never asked Complainant for a picture of herself in a bathing suit. Instead, an electronics technician indicated that a student intern had asked someone for a swimsuit picture. * On August 11, 2008, Complainant appeared to be tired during the meeting, explained she had been up late the previous night, and asked to take a power nap. The supervisor responded, "Who do you think you are talking to." Complainant left the office after someone knocked on the door. There was no kissing. The supervisor speculated that Complainant was lying about being sexually harassed because, three weeks earlier, he decided not to recommend her reappointment to the internship program due to her poor work performance. He also maintained that Complainant was motivated to lie because she hated men. And he speculated that the other interns supporting Complainant were upset at him for not recommending their return to the internship program. The Agency maintained that the supervisor's denials were supported by the testimony of an electronics technician and a contractor, whose testimonies suggested that the comments "my girl" and "will you marry me" were not directed at Complainant. The Agency also suggested that Complainant may have fabricated the kissing incident as a vindictive response to the supervisor denying Complainant's request on August 11, 2008 for leave on the last day of the program. Finally, the Agency found that it took immediate action to end the alleged harassment, after Complainant informed the Director on August 11, 2008. So even if the supervisor had engaged in unwelcome conduct, the Agency responded appropriately by immediately investigating the incidents and reprimanding the supervisor. Therefore, it should not be vicariously liable for the harassing conduct. CONTENTIONS ON APPEAL On appeal, Complainant contends that she presented sufficient evidence to establish that the supervisor engaged in unwelcome sexual conduct. In addition, Complainant argues that the Agency is vicariously liable for the sexual harassment for several reasons. First, she maintains that this was an example of supervisory harassment that resulted in a tangible employment action, for which there is no affirmative defense. Here, the supervisor did not recommend Complainant return to the program. This denial of an opportunity to return to the internship program the following year constituted a tangible employment action, according to Complainant. Second, she maintains that the Agency failed to take prompt, remedial, and effective action in response to the supervisory harassment. Specifically, the Agency did not begin its formal investigation until October 2008, two months after the incident, and it subsequently dismissed her EEO complaint on the grounds that she was not an Agency employee. Furthermore, Complainant maintains that the Agency's reprimanding the official for "discourteous conduct," was not sufficiently severe to prevent the sexual harassment from recurring. Finally, Complainant requests that the Commission make a determination on damages, since the Agency has not fairly dealt with her throughout the administrative process, and the issue of damages will likely be up on appeal again.2 The Agency maintains that Complainant failed to show that the unwelcome conduct occurred. First, the Agency argues that the assertions Complainant made to the summer interns should be regarded lightly and are entitled to no credibility for the underlying conduct because they are hearsay and have no independent legal significance. Second, the Agency maintains that its own investigating officer erred in finding that the supervisor had engaged in misconduct, because the investigating officer failed to consider the supervisor's denial of her request for leave on the last day of her internship as a motive for Complainant's complaint. The Agency argues that there is an "absence of typically abundant evidence in sexual harassment cases . . . . The record is devoid of any incriminating text messages, emails, greeting cards, handwritten notes, voice mails, answering machine messages, other recordings, phone records of calls received, photographs, bar tabs, travel reservations, lodging receipts, or police reports." The Agency also notes that the supervisor had no history of sexual harassment. ANALYSIS AND FINDINGS The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. § 1614.405(a). "The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999). Hostile Work Environment Harassment To establish hostile work environment harassment, Complainant must show five things. First, Complainant must be a member of a statutorily protected class. Second, the alleged harasser engaged in unwelcome verbal or physical conduct. Third, the unwelcome conduct was based on Complainant's statutorily protected class. Fourth, the unwelcome conduct either (a) affected a term or condition of employment, or (b) had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. Fifth, there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Unwelcome Conduct: Evaluating Evidence of Harassment The critical issue before us is whether the record evidence sufficiently shows that the supervisor engaged in unwelcome verbal and physical conduct towards Complainant. When no one besides the parties witnesses sexual conduct, resolving a sexual harassment claim will often depend on the credibility of the parties. In appropriate cases, the Commission may make a finding of harassment based solely on the credibility of the victim's allegation. See EEOC Policy Guidance on Current Issues of Sexual Harassment, EEOC No. N-915-050 (Mar. 19, 1990). A victim's account must be sufficiently detailed and internally consistent so as to be plausible, and lack of corroborative evidence where such evidence logically should exist would undermine the allegation. By the same token, a general denial by the alleged harasser will carry little weight when it is contradicted by other evidence. Id. Upon review, we determine that there is sufficient evidence to show that the supervisor engaged in unwelcome verbal and physical conduct towards Complainant in that: * Complainant's testimony was more plausible and believable than the supervisor's testimony. * Complainant's testimony was corroborated by testimony from student interns and the Director, who either saw Complainant soon after the alleged incidents, or discussed the incidents with Complainant around the time that they occurred. * These corroborating witnesses testified that Complainant had a visibly upset demeanor around the time or soon after the alleged incidents occurred, which suggests that Complainant was telling the truth. * Complainant, the student interns, and the Director did not have motives or reasons to lie. a. Plausibility of Complainant's Testimony In her testimony, Complainant described a work environment in which the male supervisor was attracted to her and subjected her to increasingly unwelcome verbal comments and propositions and eventually escalated to physical sexual conduct. Her account was supported, and therefore made plausible and believable, by the testimony of several student interns, who observed that the supervisor worked to develop a close, personal relationship with Complainant, and called her into his office more frequently and for longer durations than other interns. For example, one intern, who had participated in the program for two summers, stated in her affidavit: Many times when we caught up with each other at lunch or during other times of the day, [Complainant] would mention that she and [the supervisor] talked in his office for long periods of time. It was very noticeable to us interns that she was "missing" for long periods of time. . . . It came to the point that when [the supervisor] would call her into his office, she would ask [another intern] and me to take notice of the time that she was gone. If she was gone too long we were to knock on his office door. [The supervisor] always had her close the door. AR 15-6 Investigation, at 84 Another intern declared: Yes, the relationship between [the supervisor] and [Complainant] appeared to be a more personal one. I had seen him a couple of times in the doorway of her assigned office laughing and joking with her. He never came in to the studio; where I worked and had personal conversations with me. I don't think I ever saw him having un-work related conversations with any other intern . . . . I think he might have had a crush on [Complainant]. ROI, Ex. F-12, at 3-4. b. Implausibility of Supervisor's Testimony We find the supervisor was not plausible in his testimony about the incidents. For example, during the fact-finding conference, he denied hugging Complainant and tried to explain that he used the phrase "my girl" to ask a male intern what movie he was watching: [T]he phrase my girl was in reference to a video that [a male intern] was watching with the rest of the SEAP student and I asked him, what was this video that you watching? Is it the Forrest Gump, which is my girl, the phrase was there, or is it the Old School, which is my boy. Fact-Finding Conference Transcript (Tr.), at 81 The supervisor attempted to clarify his statement: "[The male intern] is showing his video that he made during the summer . . . . And that's when I came in, ask him what are you watching? Is this the Forrest Gump movie, which is where the my girl phrase came out, and the Old School, which is a phrase that says are you my boy." Tr. at 82. "[T]he comment was this is a Forrest Gump movie about my girl." Tr., at 123. We find the supervisor's account, that he juxtaposed the phrase "my girl" with asking whether someone was watching "Forrest Gump" to be implausible. We cannot contemplate any natural transition from asking what movie a person is watching to the phrase "my girl" (or for that matter, the additional phrase "my boy" for the movie "Old School"). Perhaps it could be conceivable that a person would ask someone whether this movie was Forrest Gump, about a man who loved "a" girl. But we cannot conceive of a plausible conversational situation for the supervisor to use "my" girl in asking about a movie. Furthermore, we note the male intern's declaration did not corroborate the supervisor's account of his use of the phrase "my girl." See ROI, Ex. F-15. With respect to the "will you marry me" comment, the supervisor testified at the fact-finding conference that he used the phrase when talking to a female contractor in his office: We were having a conversation . . . that particular day some guy had like five or six wives that finally got caught in the United States and the conversation alluded to that's a good tax break, and I made a comment to [the contractor], says, well, I need several wives-if I need that tax break too. When are we getting married? At that point, [Complainant] walked into my office to either ask a question or do something. Tr., at 86. The contractor, however, was vague on when this conversation happened. In her declaration, she wrote that this conversation occurred "sometime last year." Her account made no mention of Complainant's presence during the conversation. Moreover, when asked whether she had any knowledge about the supervisor saying "when are we getting married" during the relevant time period, the week of July 28, 2008, the contractor stated that she had no knowledge. ROI, Ex. F-14, at 2. The supervisor denied asking Complainant to send him a picture of her in a bikini, and maintained that any requests to send anyone a bikini picture came from a male intern working in another office. The supervisor referenced the declaration of an electronics technician for support. Tr., at 89-90. The electronics technician stated: On or around the 6th of August, I went to the office of [a male.] [He] was sharing his office with [a male intern] . . . . [The male intern] was on his computer and talking with another student that I didn't know. . . . I overheard [the male intern] say "I got an e-mail, but I didn't get the bikini pictures that I asked for." I don't know who the e-mail was from and didn't think anything of it until I heard of this allegation against [the supervisor]. Is this coincidence? ROI, Ex. F-11. We find the electronics technician's testimony to be irrelevant, since the conversation he testified about occurred a week after the relevant time period in this case. Furthermore, the technician failed to establish how Complainant knew or was aware of this conversation. Moreover, the male intern did not corroborate the technician's testimony that he was the one who had requested bikini photos that Complainant could have somehow been aware of. See ROI, Ex. F-15. c. Corroborating Testimony that the Unwelcome Conduct Occurred; Complainant's Demeanor We find the corroborating testimony from several summer interns and the Director, that Complainant confided in them and appeared to be visibly upset about the supervisor's conduct shortly after they happened, to be persuasive evidence that the unwelcome conduct occurred. First, several of the student interns confirmed that Complainant discussed with them the supervisor's unwelcome conduct immediately after they happened, and described Complainant's troubled demeanor when she recounted those incidents. One student intern testified in a sworn statement: Another time [Complainant] came and met [another intern] and I and told us how [the supervisor] wanted her to wear shorts to the Organizational Day festivities because it would be hot outside. When that day came [Complainant] told us that he was very disappointed that she didn't wear the shorts. It was very odd that he was so disappointed. . . . Another time at lunch [Complainant] was talking about the vacation to the beach that she was about to take and how she was making sure that [the supervisor] remembered she would be taking those days off. She said that while she was in his office, [the supervisor] asked her to take a picture of herself in her bathing suit. And how he specifically wanted it sent to his cell phone. Every time [Complainant] shared with us the discussions that she and [the supervisor] had, she was getting more and more uncomfortable. AR 15-6 Investigation, at 84 This same intern also submitted a declaration, again describing how Complainant talked about the incidents with the interns and about her discomfort with the supervisor's behavior: I know that [Complainant] expressed a great discomfort concerning conversations [the supervisor] had with her. She often asked me if [the supervisor's] topics of conversation and advice in clothing, for example, were normal behavior. . . . I urged her to keep track of the situations she was in with [the supervisor]. . . . At lunch after [Complainant] had this conversation with [the supervisor], [Complainant] was very disturbed by his request for photos of her in her bathing suit. [She] was going to vacation at the beach over the weekend. [Complainant] asked me if [the supervisor] has these conversations with me and I told her no. . . . I was feeling uneasy about [Complainant not returning yet from the August 11, 2008 meeting with the supervisor] and decided to look for my cell phone to see what time it was. I noticed that I had a message. A message from [Complainant] that said she was outside and to meet her out there. She added "Hurry!" to the message and I immediately walked out of the office and the building to find that [another intern] and [Complainant] were sitting on the waste-high [sic] wall. [Complainant] was in tears. We tried to comfort her. I found what had happened to her just minutes before as she called her mom. ROI, Ex. F-10, at 3-4. During a fact-finding conference, another student intern testified that Complainant had told her that the supervisor had hugged Complainant, asked her to take vacation pictures of herself, and kissed her: "[Complainant] told me about when he hugged her and when he asked about the pictures and then she told me that he kissed her on the neck and on the mouth, and I was like what? . . . She was shaking and she was crying . . . ." Fact-Finding Conference Transcript (Tr.), at 208-209. Second, the Director of the Division of Medical Audio Visual, Library, and Statistical Services recalled that Complainant was upset on the morning of August 11, 2008 when she discussed the supervisor's harassing behavior with him: I would characterize [Complainant's physical appearance on August 11, 2008] as trying to present a stiff upper lip, that she was rigid . . . but functioning . . . . She was not breaking down and crying or raising her voice or anything like that. She was trying to be factual and I think that's probably my best description. She was, she was a bit rigid, trying to present a stiff upper lip, trying to be factual, but she seemed-she appeared to be upset to me. Tr., at 191-192. e. Motive or Reason to Lie The supervisor denied kissing Complainant on August 11, 2008 and maintained that she had falsely accused him because she was a poor worker, who did not do any of the work requested by another male supervisor, and was upset that the supervisor decided several weeks before August 15, 2008 that he was not going to recommend her to come back to the internship program. Tr. at 96-98. He also maintained that two of the other interns who corroborated Complainant's version of events had lied because they were upset that he had decided not to recommend them to return to the program on the grounds that they did not get along with each other. Tr., at 85, 125-126. We find the supervisor's testimony to be purely speculative and wholly unsupported by the evidence. First, there is no evidence in the record that Complainant, or any of the student interns, were poor performers. The supervisor admitted that he never provided Complainant with any feedback regarding her performance. Tr. at 128. There is no record of the supervisor counseling any of the summer interns or reprimanding them for poor work (in contrast, one full-time intern testified that the supervisor had reprimanded her for poor work performance in January 2008).3 Nor did the supervisor ever issue performance evaluations for Complainant or the other student interns. The other male supervisor, who was supposedly dissatisfied with Complainant's performance, did not corroborate the supervisor's speculative testimony. When asked to comment on whether he believed Complainant fabricated these events and that students were retaliating against the supervisor because he did not recommend their retention for future employment, this male supervisor simply wrote: "Don't know." ROI, Ex. F-13. We also find implausible the supervisor's theory for why the other corroborating student interns would be motivated to lie. The supervisor claimed that the other student interns were upset with him because he decided to not recommend them to return because they performed poorly and did not get along with each other. "[One intern] is an African American student. [The other intern] is a Caucasian American. They have a personality conflict. They can't get along. . . . And you can't hire one over the other without opening yourself up for a discrimination case." Tr., at 85. We find the supervisor's rationale for not inviting these two interns back (fear of one of the interns filing a discrimination complaint) to be dubious. We note that one of the interns had worked for the supervisor the previous summer, and had been designated as a leader who guided the other interns. It seems implausible that this intern's performance degenerated to such an extent that she did not warrant an invitation back. Moreover, we find it implausible that the supervisor would prematurely make his performance assessments and determinations two months into a three-month internship program. In addition, there is simply no evidence, other than the supervisor's assertions, that he had in fact made his decision weeks prior to Complainant complaining about sexual harassment. He admitted that he never told any of the student interns that he had decided who would be invited to return. Tr. at 126. All of the student interns confirmed in their testimony that they were unaware that the supervisor had made any determinations. In addition, we note that the supervisor offers one other possible motive for Complainant: "[s]he hated men" and did not like to take instructions from him and the other male supervisor. Tr., at 103-104. We find this to be implausible, because as noted previously, the other male supervisor never indicated in his declaration that he had any performance problems with Complainant. Furthermore, it is pure, unfounded speculation on the supervisor's part to accuse Complainant of generically "hating all men," given that she was seeing a boyfriend at that time. Finally, we find the Agency's representative's theory of what motivated Complainant, that she was upset that the supervisor denied her request for medical leave on the final day of her internship, is also implausible. We find it highly unlikely that a student intern, four days from completing her internship, would decide to fabricate a sexual harassment complaint, merely because she could not be excused for a few hours on the last day of her internship program. In short, like the Agency's investigating officer, we find no reason to doubt the motives of Complainant and the student interns. It is highly unlikely that any of the student interns were motivated to fabricate a story to punish the supervisor for denying a leave request or not inviting them to return to the program, given that the supervisor never informed them about his decision and never indicated that their performances were deficient. Overall, we find there is ample evidence in the record to show that the supervisor subjected Complainant to unwelcome verbal and physical sexual conduct that was sufficiently severe to constitute sexual harassment. Complainant's testimony was sufficiently detailed and internally consistent, and her demeanor and reactions to the incidents were observed and corroborated by multiple student interns and the Agency's Director. In contrast, the supervisor's accounts of various events were implausible on their face, and unsupported by testimony from other witnesses. Affirmative Defense for Harassment by Supervisor That Does Not Result in a Tangible Employment Action a. Standard of Liability When harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action,4 the employer can raise an affirmative defense to liability or damages, which it must prove by a preponderance of the evidence. The defense consists of two necessary elements: * the employer exercised reasonable care to prevent and correct promptly any harassment; and * the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999) In some circumstances, unlawful harassment will occur and harm will result despite the exercise of requisite legal care by the employer and employee. For example, if an employee's supervisor directed frequent, egregious racial epithets at him that caused emotional harm virtually from the outset, and the employee promptly complained, corrective action by the employer could prevent further harm but might not correct the actionable harm that the employee already had suffered.5 In these circumstances, the employer will be liable because the defense requires proof that it exercised reasonable legal care and that the employee unreasonably failed to avoid the harm. While a notice-based negligence standard would absolve the employer of liability, the standard set forth in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) does not. As the Court explained, vicarious liability sets a "more stringent standard" for the employer than the "minimum standard" of negligence theory. Ellerth, 118 S. Ct. at 2267. While this result may seem harsh to a law abiding employer, it is consistent with liability standards under the anti-discrimination statutes which generally make employers responsible for the discriminatory acts of their supervisors. If, for example, a supervisor rejects a candidate for promotion because of national origin-based bias, the employer will be liable regardless of whether the employee complained to higher management and regardless of whether higher management had any knowledge about the supervisor's motivation. Harassment is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, and that limitation must be construed narrowly. The employer will be shielded from liability for harassment by a supervisor only if it proves that it exercised reasonable care in preventing and correcting the harassment and that the employee unreasonably failed to avoid all of the harm. If both parties exercise reasonable care, the defense will fail. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999) Assuming, for the sake of argument, that the Agency met the first prong of the affirmative defense, we determine, for the reasons stated below, that the Agency failed to establish the second prong of the affirmative defense. b. Second Prong: Employee's Duty to Exercise Reasonable Care The second prong of the affirmative defense requires a showing by the employer that the aggrieved employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 118 S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270. The burden lies with the employer to prove that the employee's failure to complain was unreasonable. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999) A determination as to whether an employee unreasonably failed to complain or otherwise avoid harm depends on the particular circumstances and information available to the employee at that time. An employee should not necessarily be expected to complain to management immediately after the first or second incident of relatively minor harassment. Workplaces need not become battlegrounds where every minor, unwelcome remark based on race, sex, or another protected category triggers a complaint and investigation. Id. An employee might reasonably ignore a small number of incidents, hoping that the harassment will stop without resort to the complaint process.6 Upon review, we find that the Agency failed to establish the second prong of the affirmative defense. We find it reasonable that Complainant tried to ignore the small number of initial unwelcome verbal comments from the supervisor, hoping that the harassment would stop without resorting to the complaint process. But once the unwelcome conduct escalated to physical sexual conduct in the form of multiple kisses on Complainant's neck and mouth, she immediately reported the incidents to the relevant management official. We determine that the Agency did not establish that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency. Therefore, the Agency failed to establish the second prong of the affirmative defense, and is vicariously liable for the supervisor's sexual harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant was subjected to sexual harassment by the Agency, and therefore REVERSE the Agency's final decision. The Commission REMANDS this matter to the Agency for remedial action in accordance with this decision and the Order below. ORDER7 1. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at http://www.eeoc.gov/policy/docs/damages.html), and Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The Agency shall complete the investigation and issue a final decision addressing the issue of compensatory damages within 150 calendar days after this decision becomes final. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer, as provided in the statement titled "Implementation of the Commission's Decision." 2. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall provide training to the supervisor regarding his obligations under Title VII concerning sexual harassment. If the official is no longer an employee of the Agency, then the Agency shall furnish documentation of his departure date. 3. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the supervisor for sexually harassing an intern. 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 for its decision not to impose discipline. If the supervisor has left the Agency's employment, the Agency shall furnish documentation of his departure date. The Agency shall provide a report of its compliance with paragraphs 1 to 3 of this Order to the Compliance Officer, as provided in the statement titled "Implementation of the Commission's Decision." The report shall include supporting documentation, verifying that the Agency has implemented the above corrective actions. Copies must be sent to Complainant. POSTING ORDER (G0610) The Agency is ordered to post at its Walter Reed Army Institute of Research in Silver Spring, MD copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations ___7/9/14_______________ Date 1 In Dep't of Army, EEOC Appeal No. 0120101877 (Sept. 21, 2010), the Commission determined that Complainant was an Agency employee, for purposes of filing a complaint under the federal sector EEO process. We reversed the Agency's dismissal of Complainant's complaint for failure to state a claim and remanded the matter for further processing. 2 The Commission declines Complainant's invitation to make a determination on damages at this point in the federal sector EEO process. For example, under the chapter of EEOC Management Directive 110 dealing with attorney's fees, a prevailing complainant's attorney must first submit a verified statement of attorney's fees and other costs to the agency or administrative judge. Then the agency or administrative judge will issue a decision determining the amount of attorney's fees due. The decision must include a notice of right to appeal to the EEOC. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 11, Section VII (Nov. 9, 1999). 3 "[The supervisor] would do like periodic reviews, if . . . he felt I was slacking or I wasn't performing to the best of my abilities, he would pull me in his office and he would give me a letter of reprimand-well, I got a letter of reprimand one time because he felt that I wasn't being the best student I could be . . . ." Tr. at 214; see also Tr. at 218-219. 4 As stated above, we find no evidence that indicates the supervisor declined to recommend Complainant to return to the internship program the following summer. Furthermore, it is unclear that Complainant was eligible or desired to return to the internship program the following summer, given she was now a college student. Therefore, our analysis of vicarious liability will assume that the supervisor's harassment did not result in a tangible employment action. 5 See Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999) (in order for defendant to avoid all liability for sexual harassment leading to rape of plaintiff "it must show not merely that [the plaintiff] inexcusably delayed reporting the alleged rape . . . but that, as a matter of law, a reasonable person in [her] place would have come forward early enough to prevent [the] harassment from becoming 'severe or pervasive'"). 6 See Corcoran v. Shoney's Colonial, Inc., 24 F. Supp.2d 601, 606 (W.D. Va. 1998) ("Though unwanted sexual remarks have no place in the work environment, it is far from uncommon for those subjected to such remarks to ignore them when they are first made."). 7 Complainant's formal complaint, the EEO counselor's report, and settlement negotiations indicate that Complainant sought monetary relief in the form of compensatory damages and attorney's fees. Complainant has given no indication that she seeks backpay. Upon review, it appears she received the full amount of her stipend from the internship program. Therefore, we will assume that she is not entitled to backpay as a form of relief. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120111865 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120111865