Thelma L. Leatherman v. Department of the Navy
01983615
April 26, 2000
Thelma L. Leatherman, )
Complainant, )
) Appeal No. 01983615
v. ) Agency No. 9465928002
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Thelma L. Leatherman (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the basis of reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. § 1614.405).
ISSUES
The issues on appeal are whether complainant has proven by a preponderance
of the evidence that she was the victim of unlawful retaliation and a
hostile work environment when her second-line supervisor directed her
first-line supervisors to "lean on her" in an effort to systematically
retaliate against her. Complainant gave the following incidents as
examples of this retaliation and hostile environment: (1) she received
a Letter of Reprimand (LOR) on April 8, 1994; (2) on March 31, 1994, she
was counseled by her first-line supervisor regarding personal telephone
calls and failure to counsel a sufficient number of military spouses
(complainant's primary clients); (3) she was tasked with writing a
Standard Operating Procedure (SOP) for her position at some point in 1994;
(4) the critical elements of her job were altered in April, 1994; (5)
she was denied viable and appropriate training in 1992 and during 1994;
(6) she was subjected to harassing comments by her supervisor during
various staff meetings in 1994; and (7) her chain of command interfered
with her planning and implementation of the Naval Training Center Job
Fair in the early months of 1994. <2>
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Career Resource Specialist, GS-0101-09, in the Navy Family Service
Center, Naval Training Center, at the agency's Orlando, Florida location.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on August 2, 1994.
Therein, she alleged systematic retaliation and the creation of a
hostile work environment, giving the incidents noted above as examples,
as well as describing other events she termed as "background". She also
indicated that the treatment she endured had affected her health
and that she was under the care of doctors. At the conclusion of the
investigation, complainant requested a hearing before an Administrative
Judge (hereinafter AJ). On December 1, 1995, the AJ notified both
parties that the complaint was being dismissed without prejudice as,
due to complainant's medical and psychological condition, there was no
guarantee that complainant could proceed with the hearing in mid-January,
as indicated in her request for a stay of the hearing. The AJ stated that
complainant should renew her request for a hearing no later than January
16, 1996, with discovery continuing until that date. After several
sets of interrogatories and requests for production of documents went
unanswered by complainant's attorney, the agency issued a FAD dismissing
the complaint for failure to cooperate. Complainant appealed to this
Commission and on January 16, 1997, we ordered the agency to process the
claims and issue a new FAD based on the record as it was at that time.
Leatherman v. Department of the Navy, EEOC Appeal No. 01963625 (January
16, 1997). It is this second FAD that complainant now appeals.
The FAD concluded that complainant failed to establish a prima facie
case of retaliation because she presented no evidence from which one
could infer a causal connection between complainant's protected activity
and the alleged reprisal. The agency noted that complainant's prior
activity occurred in February 1991, while the alleged discriminatory
incidents did not commence until 1994.
The FAD went on to note that management presented legitimate
non-discriminatory reasons for its actions. Specifically, the agency
argued that complainant was issued the LOR because she failed to follow
proper procedures for planning workshops and that neither the letter
of reprimand, nor any of the events of which complainant's complained,
were done at the direction of complainant's second-line supervisor.
The agency also argued that complainant was counseled regarding her work
habits because she had fallen behind in her work. Moreover, she was
told to write a SOP because SOPs had to be written for all programs in
preparation for an upcoming accreditation. The second-line supervisor
(S2) testified that complainant was not denied requested training in
a discriminatory fashion, but, like all employees, could only receive
training that was within the agency's resources. S2 also stated that
while complainant was initially denied WordPerfect training, she received
this training when everyone got a computer. The first-line supervisor
(S1) stated that the statements made to complainant during staff meetings
were not made in an attempt to harass her. Finally, S2 and the Director
of Family Services Center (D) testified that the modifications to the
Job Fair were necessary.
The FAD concluded that complainant provided no evidence that the agency's
articulated reasons were pretextual and that complainant therefore failed
to prove by a preponderance of the evidence that she was discriminated
against as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she has established discrimination in
regard to the April 8, 1994 Letter of Reprimand. The agency maintained
that the LOR was issued because complainant failed to follow the written
instructions of S1 which stated that workshops were not to be planned
without his knowledge and approval. Complainant alleges that she did
not disobey the directions of her first-line supervisor, and was in fact
in the process of gathering the information required to inform him of
the workshop request at issue. Complainant notes that the agency's
investigator found that she had not disobeyed an order. Finally,
she argues that no workshop had taken place and that no government
facility had been committed for the performance of workshop, without
her supervisor's knowledge and approval.
Complainant then alleges that the passage of three years between the
Letter of Reprimand and her protected activity does not prevent "the
establishment of a prima facie case of retaliation because the only facts
that need to be established are participation in a protected activity
and some detrimental or negative action against the one who participated
in a protected activity".
Finally, complainant alleges that because she did not disobey an order,
the agency's articulated reason for the Letter of Reprimand is clearly
pretextual and that she was therefore the victim of retaliation.
The agency offers no contentions on appeal.
ANALYSIS AND FINDINGS
Before turning to the claims addressed in the FAD, we note that the
agency's characterization of complainant's complaint was inaccurate.
A fair reading of complainant's complaint indicates that complainant
alleged on-going discriminatory retaliation, naming the April 8,
1994 LOR as the most recent incident, as well as the creation of a
hostile work environment. Complainant alleged that a hostile work
environment was created through a series of incidents, including the LOR,
harassing counseling sessions, changing job elements, interference with
complainant's planning of the Job Fair, and harassing comments made at
staff meetings. While the FAD addressed these incidents as separate
claims of retaliation, Commission precedent clearly establishes that
an agency should not ignore the "pattern aspect" of a complainant's
claims and define issues in a piecemeal manner where an analogous theme
unites the claims. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). Therefore, we find that complainant has
alleged disparate treatment due to retaliation, as well as retaliatory
harassment.
Disparate Treatment
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), we find,
contrary to the agency's conclusion, that complainant did establish that
the April 8, 1994 LOR was motivated by retaliatory animus.
Complainant established a prima facie case of retaliation. She
participated in protected activity when she gave a deposition in a
sexual harassment case involving S2 in 1991. S2 admitted that he knew
that complainant gave this deposition and that he was aware of the
circumstances surrounding the LOR. Moreover, S1 indicated that he was
ordered to issue the LOR by individuals in his chain of command, including
S2. In terms of S1's awareness of complainant's prior activity, we note
that while S1 denies being aware that complainant gave a deposition,
complainant alleges that she told S1 that she gave a deposition when
he was her co-worker. Furthermore, one of complainant's co-workers
(CW3) testified that there were rumors of complainant's involvement in
the sexual harassment case throughout the office. Given this, we find
it unlikely that S1 was unaware that complainant gave a deposition.
Therefore, we find that the relevant agency official's were aware of
complainant's prior EEO activity. Moreover, complainant was clearly
subjected to an adverse employment action when she was issued the LOR.
The agency contends that because complainant's protected activity
took place in 1991 and the LOR was issued in 1994, an inference
of reprisal cannot be drawn. While the period of time between the
protected activity and the alleged retaliation can be telling, a prima
facie case can be established by other evidence tending to establish
retaliatory motivation. See Hochstadt; see also Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998).
We find that complainant provided sufficient evidence on which to base
an inference of retaliatory motivation. Specifically, complainant
alleged that a hearing on the sexual harassment case involving S2,
for which she previously gave a deposition, was scheduled for 1995 and
that she was retaliated against not only due to her 1991 deposition, but
to discredit her testimony at the 1995 hearing. The agency failed to
respond to this claim. Moreover, co-workers indicated that management
promoted an atmosphere of intimidation and made trouble for employees
who did not fall into line, such as complainant. One co-worker (CW6)
testified that when she began working for the agency in November 1991,
S2 told her not to associate with complainant. Another co-worker (CW5)
testified that S1, at the direction of S2, forced her to write a memo
saying complainant "put work off on her." Based on this evidence, we
find that complainant has established a prima facie case of retaliation
in regard to the issuance of the LOR.
The agency contends that complainant was issued the LOR because she
failed to follow the written instructions of S1 when he instructed
her not to plan workshops without his knowledge and approval. This
explanation satisfies the agency's burden of articulating a legitimate
non-discriminatory reason for its action.
In order to establish discrimination, complainant must establish that
the agency's proffered legitimate reason for its action is a pretext for
retaliation. S1 indicated in his declaration that he issued the LOR on
the instruction of individuals in his chain of command, including S2 and
the D. S1 stated he was in agreement with the LOR because complainant
had disobeyed a written order. D stated that he decided to issue the LOR
because complainant planned and initiated a new program prior to S1's
approval, in violation of S1's written order to obtain approval before
planning or initiating a new program. The LOR indicated that it was
issued due to complainant's "failure to request permission from the TAMP
Manager before entering into an agreement to schedule a workshop with
a Company...in direct violation of specific instructions issued to all
staff members on February 17, 1994." A review of the record reveals that
the February 17, 1994 written instructions state that "no one will plan
a workshop or delete a workshop without [S1's] knowledge and permission.
A Workshop Planning Form will be submitted for approval on each workshop
to include SEAP workshops, TAP workshops and START workshops." From these
documents and statements we conclude that the order which complainant
allegedly disobeyed was that she should not plan a workshop without S1's
knowledge and permission and that to get this permission, she should fill
out a Workshop Planning Form. We note that there is no clear definition
of what qualifies as "planning a workshop," and that the LOR and S1's
written order do not use the same language in describing the order,
resulting in a great deal of confusion as to what S1's order meant.
A review of the letter sent by the company with whom complainant was
working to set up the workshop in question indicates that complainant told
this company that she had to obtain approval from S1 before any workshop
could be scheduled. Moreover, a copy of the Workshop Planning Form
establishes that complainant would have had to collect some information
in order to turn the form in to S1 for approval, as S1 instructed.
Moreover, like the investigator, we find compelling the statements of
complainant's former co-worker (hereinafter CW1). CW1 stated that when
he looked over the package put together for the workshop in question,
at the request of S1, he felt complainant had only done background work
and that filling out a Workshop Planning Form did not necessary mean a
workshop was planned. He testified that S1 overreacted to the situation
and that S1 had not defined what "planning a workshop" meant.
In summary, a review of the record supports the fact that the order which
complainant was accused of disobeying was not well-defined. The reason
stated in the LOR for the issuance of the LOR contrasts to the written
order given by S1. Moreover, it appears that complainant would have had
to obtain information from the company in order to fill out parts of the
form required to get S1's approval. This supports complainant's argument
that she was following S1's order by getting the initial information
needed to begin filling out the Workshop Planning Form. Finally, it
is clear that complainant had told the company that S1's approval was
required before a workshop could be scheduled. This evidence supports
complainant's contention that she did not disobey a written order and
that the agency's articulation is therefore pretextual. Based on this
finding and the testimony of complainant and her co-workers, we find
that the true motivation for the LOR was retaliation.
Accordingly, we find that complainant has established that she was the
victim of unlawful retaliation when she was issued a Letter of Reprimand
on April 8, 1994.
Harassment
A claim of retaliatory harassment is established if complainant can
demonstrate: (1) that she engaged in protected activity; (2) that the
acting agency official(s) were aware of the protected activity; (3) that
she was subsequently disadvantaged by an adverse action (i.e., she was
subjected to severe or pervasive conduct at the hands of her employer);
and (4) that there is a causal link between the protected activity and
the harassing conduct. See Hochstadt; Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993); Puissegur v. United States Postal Service,
EEOC Request No. 05971059 (March 4, 1999); EEOC Compliance Manual,
915.003, 8-14 (May 20, 1998).
Complainant has established that she engaged in protected activity of
which the relevant agency officials were aware. The next step is to
determine whether complainant was subjected to an adverse action, i.e.,
severe or pervasive conduct at the hands of her employer. However,
before determining if the incidents described by complainant amount
to severe or pervasive harassing conduct, we must review the record in
order to determine whether complainant's or management's descriptions
of these incidents are supported by the weight of the evidence.
We have already determined that the April 8, 1994 LOR was motivated by
retaliatory objectives. We therefore now move on to analyze each of
the other alleged examples of retaliatory harassment.
Complainant alleged that on March 25, 1994, she was counseled for making
personal phone calls at work and for failing to counsel a sufficient
number of military spouses. Complainant argued that she did not make
many personal phone calls and that S1 might have thought she had done so
due to the fact that many of her clients asked for her by her first name.
She also noted that while she had not had many military spouse clients
in the first few months of 1994, she had been out on sick leave for the
entire month of January and that when she returned, she was told by S1
to work exclusively on the Job Fair. Complainant indicated that she
interpreted his instructions to mean that she should not see clients.
However, she later realized that S1 did want her to see clients.
S1 indicated that complainant was counseled because she had been falling
behind at work. Based on this information, we find S1's account of
this event to be accurate--complainant herself explained how S1 could
have thought she was making personal phone calls and indicated that she
incorrectly interpreted his directions in terms of seeing clients.
Complainant also alleged that she was told to write a SOP, which should
not have been one of her duties. There is some conflict in the record
as to what this SOP was for. Complainant indicated that the SOP was
a program SOP and that it was ultimately the responsibility of S1.
Complainant also testified that the stress of having to write an SOP,
contributed to her clinical depression. However, S1 indicated that
everyone, including secretaries, had to write a personal SOP for an
upcoming accreditation. In their affidavits, D and S2 indicated that
it was the responsibility of the program/project manager to write SOPs
and that complainant was in charge of the Spouse Employment Assistance
Program (SEAP). Complainant provided no evidence that it was not her
responsibility to write this SOP and we therefore find that this duty
was properly assigned to complainant as program/project manager of SEAP.
In her formal complaint, complainant alleged that a critical element of
her job was altered by S1 in April of 1994 and that no annotation of
this change was made. Specifically, complainant alleged that S1 gave
her a memorandum around April 1, 1994, which stated that she was to
visit at least six employers in the community per week. She alleged
that her critical elements at the time stated that she was to visit
three employers or contact six by phone. She does not elaborate on
this claim in her affidavit and S1 stated that he did not know to what
memo complainant was referring. The investigator noted that there is no
record of such a memorandum and that complainant was not able to provide
a copy. Therefore, we find that complainant's claim on this point is
not supported by the weight of the evidence.
Complainant next alleged that she was denied viable and appropriate
training in reprisal and to further management's goal of her failure
at her job. She indicated that her request for computer training was
initially denied, but that since filing her complaint, she has attended
such training. She also noted that she was denied attendance at Spouse
Employment Assistance Program (SEAP) conferences, even though attendance
would have helped her do her job. S1 indicated that S2 is in charge
of the budget and of approving training requests. S2 stated that he
cannot recall complainant requesting to attend any SEAP conferences, but
that he had told her to call other SEAP offices to network. S2 further
stated that all employees are denied training at some point because of
limited resources.
Records submitted indicate that complainant has attended several training
classes, including various computer courses. Complainant's individual
Development Plan for October 1992 through September 1993 indicates that
her supervisor (illegible name) at the time approved her attendance at
an SEAP conference. There is no evidence in the record that complainant
requested and was denied attendance at any SEAP conferences, other than
complainant's statement that she made such a request which was denied by
S2 in February of 1992.<3> While we find the record to be confusing as
to what sort of training complainant requested and received, we find that
the record supports the agency's contention that complainant received
training that was suitable according to the agency's resources.
Complainant also alleged that S1 made harassing comments to her during
various staff meetings. Specifically, complainant testified that at one
staff meeting, S1 embarrassed and belittled her by accusing of taking
notes in order to "carry tales" across the street (the office is divided
into two buildings). At another meeting, he asked in an accusatory tone,
what complainant was writing. Complainant also alleged that at a staff
meeting, S1 asked her to share with the staff what could happen to a
person when he or she fails an IG inspection and the consequences of
that failure. Complainant stated that S1 made other comments concerning
what happened to certain of complainant's co-workers due to complainant's
"IG failure". Complainant asserted her belief that S1 made these comments
in an attempt to follow S2's instruction to discredit complainant in
any way possible and that such comments were made in reprisal for her
participation in the sexual harassment case. Complainant testified
that these statements and questions were very embarrassing and caused
her stress.
S1 denied making harassing comments toward complainant, although he did
not deny making the statements referenced by complainant. A variety of
co-workers (CW 1, 2, 3, 4, 5, 6, 7 and 8) provided affidavits regarding
the working relationship between complainant and her supervisors, as well
as the circumstances surrounding complainant's complaint. In terms of
the harassing behavior during staff meetings, CW1 recalled that S1 did
ask complainant to explain the consequences of an IG failure and that S1
got upset about complainant taking notes at meetings. CW5 also recalled
S1 telling complainant to explain her IG failure and that complainant
complied, although she seemed embarrassed. CW3 did not recall the specific
comments, but did indicate that S1 did not like anyone to take notes at
his meetings and was sometimes paranoid about it.
It is clear from the record that these comments of which complainant
complained were made by S1 at staff meetings and that complainant found
them embarrassing. The agency's response on this issue was that S1
denied that he was harassing complainant when he made these statements.
The agency also concentrated on the fact that complainant did not
provide evidence that S2 told S1 to make these comments. The fact that
S1 often told people not to take notes in his meetings substantiates his
claim that when he told complainant not to, he was not subjecting her to
unusual treatment. However, S1's insistence that complainant explain her
"IG failure" during a staff meeting when she was clearly embarrassed to
do so and his comments regarding the effects of this failure on others,
seems to have been based on a retaliatory motivation.
Complainant alleged that while she was the Chair of the committee
established to plan and implement a Job Fair, every time the committee
made a decision, someone up her chain of command (S2 and D) would delay,
change, amend, or cancel significant portions of what the committee had
done. She also alleged that S2 and D would never state what they wanted,
but would wait for her to make suggestions and then demand changes.
Complainant explained that one member of the committee (CW8) resigned
due to her frustration with the lack of cooperation from complainant's
chain of command. Complainant alleged that this interference was in
reprisal and was an attempt by management to add to her stress and force
her resignation.
In his affidavit, S2 stated that he was involved with the Job Fair
because complainant would submit plans to management (including him).
S2 testified that the plans were modified in accordance with what the
command wanted or for other necessary reasons. These modifications
included changing in the number of employers who would be present.
Management directed complainant to make a change in the rooms where the
Fair would take place at the request of the Service School Command who
owned the building that was to be used. S2 indicated that the planning
of the Fair was an ongoing process and complainant was continually given
criteria and feedback. In his affidavit, D confirmed much of what S2
said--indicating that the Fair was downsized when management became aware
that they were not going to lose as many people as anticipated, so that
a smaller Job Fair would suffice. D also noted that the location of the
Fair was changed due to the people who owned the building. D stated
that upon receiving CW8's resignation from the committee, he and S2
began attending the committee meetings because they interpreted CW8's
memo to mean management was not involved enough and were needed to help
things along.
A review of the record reveals that some of complainant's co-workers
provided statements in their affidavits about the Job Fair issue.
CW5 indicated that when S2 and D attended the meetings, they would
criticize every suggestion made by complainant, in addition to being very
rude and not giving complainant any credit for the work she had done in
planning the Fair. CW8, the co-worker who resigned from the Job Fair
committee, provided an affidavit which makes clear that her resignation
was not due to frustration at management's lack of involvement, as D
suggested, but because S2 and S1 would change everything at the last
minute. CW8 also stated that S2 would treat complainant "like a child"
at the committee meetings and chide her about her lack of preparation
when there was no reason to do so.
Based on a review of the record, we find the agency's argument that
many of the modifications made to the Job Fair plans were necessary,
to be credible. However, we also find that in organizing the Job Fair,
management treated complainant in a demeaning and unnecessarily harsh
way that understandably caused her a great deal of stress and humiliation.
In summary, after a review of the incidents described by complainant as
examples of the hostile work environment created by management, we find
that the agency presented a credible account regarding complainant's
claims surrounding the counseling session, the training issue, the
comments concerning note-taking, the alleged memo changing a critical
element of complainant's job, and the writing of the SOP. We also find,
however, that management failed to provide credible reasons to account
for much of the treatment faced by complainant. Specifically, we find
complainant's descriptions and explanations of the events surrounding the
issuance of the LOR, the comments made by S1 at a staff meeting concerning
her "IG failure", and the treatment she received when attempting to plan
the Job Fair, to be credible and management's account of these situations
to be unworthy of belief.
Therefore, the question now becomes whether those incidents described
by complainant and accepted as true amount to retaliatory harassment.
As noted above, harassment will be found if the discriminatory conduct
is so severe or pervasive that it created a hostile work environment.
An abusive work environment exists "[w]hen the workplace is permeated
with ‘discriminatory intimidation, ridicule, and insult' that is
‘sufficiently severe or pervasive to alter the conditions of the
victim's employment...'" Harris v. Forklift Systems, Inc., 510 U.S. at
21. Whether a hostile environment exists can be determined only by
looking at all the circumstances of the case, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance. Id. at 31.
Finally, in determining whether or not a hostile work environment exists,
our regulations require that "...the challenged conduct must not only
be sufficiently severe or pervasive objectively to offend a reasonable
person, it also must be subjectively perceived as abusive by the charging
party." See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002, at 7 (March 8, 1994).
In the instant case, it is clear that complainant subjectively perceived
the challenged conduct as abusive. Specifically, she noted in her
complaint how the treatment she was subjected to was humiliating,
stressful and made it very hard to do her job. Complainant's contention
that her chain of command subjected her to humiliation by requiring
her to explain what S1 termed a "failure" at a staff meeting, and by
constantly and unnecessarily criticizing her during meetings concerning
the Job Fair is supported by the affidavits of complainant's co-workers.
This treatment also interfered with complainant's work performance, as
it made her unsure how to do her job to the satisfaction of her chain of
command. The treatment complainant received while working on the ongoing
planning of the Job Fair, one of complainant's main assignments during
the period in question, clearly interfered with her work performance
in that she was unable to complete her assignment without dealing
with the belittling attitudes and comments of management. Moreover,
the discriminatory issuance of the LOR clearly added to complainant's
stress and humiliation.
While it is well established that a group of isolated incidents will
not be regarded as creating a discriminatory environment, we find
that management engaged in a pattern of offensive conduct during the
early months of 1994 by taking every chance to belittle and criticize
complainant in an attempt to discredit and humiliate her. See EEOC Policy
Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137
(March 19, 1990) ([a] ‘hostile environment' claim generally requires a
showing of a pattern of offensive conduct). Our belief that complainant
was subjected to a hostile environment is strengthened by the background
information provided by some of her co-workers. Statements made in
several affidavits make it clear that many workers in this office felt
that management was hostile toward complainant. As previously noted,
CW6 testified that when she began working for the agency, S2 told her
not to associate with complainant. CW5 noted that she was forced by
S1 to write a memo which reflected poorly on complainant's performance.
Based on a review of the entire record, we find that a reasonable person
in complainant's shoes would have found the conduct engaged in by S1 and
S2 to be humiliating and harassing. We therefore agree with complainant
that S1 and S2 subjected her to a hostile work environment.
The final step in determining whether a finding of retaliatory harassment
can be made, is to determine whether the harassing conduct was based
on complainant's EEO activity. After a thorough review of the record,
we find that the harassment faced by complainant was motivated by
her EEO activity. First, we have already determined that the LOR was
motivated by retaliatory animus. Second, as noted above, the agency's
attempt to legitimately explain the harassment is unworthy of belief.
Moreover, co-workers indicated that management promoted an atmosphere of
intimidation and made trouble for employees who did not fall into line,
such as complainant.
The agency argued that the lapse of time between complainant's original
1991 EEO activity, and the conduct in question was too long to support
a finding of retaliatory motivation. In so arguing, however, the agency
offered no rebuttal to complainant's claim that the hearing on the 1991
sexual harassment case was upcoming in 1995 and that the agency desired
to discredit her before this hearing.
Therefore, after a thorough review of the record, we find that complainant
was subjected to retaliatory harassment when she was issued an LOR,
when she was humiliated in a staff meeting and when she was constantly
criticized when attempting to plan the 1994 Job Fair.
CONCLUSION
Accordingly, the agency's finding of no discrimination is REVERSED and
this case is REMANDED to the agency as set forth in the ORDER below.
ORDER
The agency is ordered to take the following actions:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall remove the April 8, 1994 Letter of Reprimand from
complainant's personnel file and all other files in which it was placed.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall restore to complainant any leave used between February
1994 and August 1994, due to the agency's discriminatory actions.
Within ninety (90) calendar days of the date this decision becomes final,
the agency shall ensure that S1 and S2 no longer have any supervisory
or managerial authority over complainant, at any level or at any time.
This order shall be carried out without transferring complainant or
altering her job duties, unless she agrees to such changes.
The agency shall take corrective, curative and preventative action to
ensure that reprisal discrimination does not recur. This shall include,
but is not limited to, providing training on employment discrimination
laws for the agency officials involved in issuing complainant the Letter
of Reprimand and for those agency officials involved in the conduct found
to be harassing, including S1 and S2. Within thirty (30) calendar days
of the date the training is completed, the agency shall submit to the
compliance officer appropriate documentation evidencing completion of
such training.
The agency shall consider complainant's claim for compensatory damages
incurred as a result of the agency's discriminatory action. Within
fifteen (15) calendar 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 of compensatory damages. Complainant
shall provide evidence that the damages claimed are a result of the
agency's discrimination and evidence of the amount of claimed damages.
Within sixty (60) calendar days of submission of such evidence, the
agency shall issue a final agency decision on the issue, with appropriate
appeal rights to the Commission. The Commission further orders that the
agency consider complainant's right to any additional attorney's fees
and costs in connection with this appeal and the submission of evidence
in connection with her claim for compensatory damages.
Complainant shall be awarded attorney's fees as set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at its Navy Family Service Center (FSC),
Naval Training Center (NTC) in Orlando, Florida 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
4/26/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. has occurred at the Navy Family Service Center,
Naval Training Center, Orlando, Florida ("facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated Title VII when it retaliated
against an employee for engaging in EEO activity. The agency was
ordered to: (1) remove a Letter of Reprimand from complainant's files;
(2) restore any leave taken due to the agency's discrimination; (3)
ensure that the agency officials who discriminated against complainant
no longer have supervisory or managerial authority over complainant
(without altering complainant's job, unless she agrees); (4) provide
training in employment discrimination law to the responsible agency
officials; (5) issue an appropriate award of compensatory damages,
if it is determined that complainant is entitled; (6) award reasonable
attorney's fees, if applicable; and (7) post this notice.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The description of these incidents are based on complainant's formal
complaint and differ slightly from those incidents described in the FAD.
3 Moreover, complainant indicated in her complaint that she filed a
grievance over the denial of that request.