Sex Discrimination & Sexual Harassment Found. Complainant, an Assistant Public Affairs Officer, filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when her work responsibilities were altered; she received written performance counseling; and she was subjected to a hostile work environment, including receiving inappropriate comments and being excluded from meetings and emails. On appeal, the Commission found that Complainant was subjected to discrimination and harassment as alleged. The record showed that Complainant’s work duties were altered due to her pregnancy, and the Agency incorrectly concluded otherwise. Complainant’s supervisor specifically stated that she could not supervise Complainant if Complainant was pregnant, and Complainant then ceased performing tasks that were under the supervisor’s purview. The Agency also excluded Complainant from certain weekly meetings at the supervisor’s request. The Agency conceded that Complainant was subjected to harassment based on sex that affected a term or condition of her employment. The Commission found that the Agency was liable for the harassment. The Commission noted that the Agency could not use an affirmative defense because Complainant’s changed work duties constituted a tangible employment action. Furthermore, even if there were no tangible employment actions, the Agency failed to take prompt and effective action when it failed to fully remove the responsible management official from supervisory authority over Complainant. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and reinstate Complainant’s assignments. Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
This Assistant Public Affairs Officer’s EEO case was investigated by the State Department (that would be S/OCR).
“The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged.”
BUT.
The EEOC found that the Complainant “has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.”
The Commission concluded that “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein” and reversed the Agency’s final decision.
It also remanded the case to the State Department for further processing in accordance with its decision and remedial actions ordered to include among other things, complainant’s entitlement to compensatory damages, disciplinary actions against responsible management officials, and a requirement of “no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment.”‘
Note that EEOC cases have randomly assigned pseudonyms which replace Complainants’ names when decisions are published to non-parties and the Commission’s website.
Excerpts:
At the time of events giving rise to this complaint, Complainant worked as an Assistant Public Affairs Officer (APAO), FS-04, at the Agency’s U.S. Mission to International Organizations in Vienna, Austria.
Complainant identified her first-level supervisor (S1), a Public Affairs Officer (PAO), as the individual who discriminated against and subjected her to a hostile work environment.
Complainant stated that over a series of days in early October 2017, following S1’s miscarriage, S1 sent Complainant Facebook messages discussing S1’s miscarriage, desire to curtail, and disappointment with how she felt that Complainant was treating her. Complainant averred that prior to October 2017, she and S1 were friends. However, S1 informed Complainant that she could no longer supervise her following her miscarriage and Complainant’s pregnancy.
[…]
On October 30, 2017, Complainant and S1 participated in mediation. Following the mediation, the mediator expressed concern that due to personal circumstances, S1 was hypersensitive to remarks and interaction with Complainant. The mediator stated that the it was “clear that [S1] rationalized her decisions as business appropriate and not based on personal situations.” The mediator added that S1’s remarks and the timing of events made it clear that S1 wanted to minimize contact with Complainant, however, it “look[ed] on face value as an effort to remove [Complainant] from places [S1] is attending and appears to lessen the exposure of [Complainant] to people and meetings she attended for over a year and a half.”
On November 3, 2017, management officials counseled S1, stating that they did not believe that S1 could properly carry out her supervisory responsibilities if she minimized direct contact with Complainant. Management officials informed S1 that excluding Complainant from Senior Staff meetings and removing her from the Senior Staff distribution list was inappropriate. On November 6, 2017, Complainant informed Human Resources officials that she was removed from her social media duties and inquired about what options were available.
On November 15, 2017, the Chargé d’Affaires informed Complainant that she wanted Complainant to attend Senior Staff meetings but did not feel the same way about the PAS meeting. She acknowledged that Complainant was experiencing a very difficult situation, stating “we know it is a bad situation and we want to, and are trying, to find a solution.” On the following day, Complainant informed the Chargé d’Affaires and S2 that the daily situation was worsening and complained of minimal communication from S1 and uncertainty about her portfolio because S1 outsourced areas of her portfolio. Complainant added that S1 did not talk to her, make eye contact, or provide information. In response, the Chargé d’Affaires informed Complainant that “if a simple solution existed, it would have been found and acted upon immediately.” She assured Complainant that she was involved in daily meetings and discussions to find a solution.
On November 20, 2017, Agency officials informed Complainant that her rater would be changed from S1 to S2. Further, coordination between Complainant and S1 would be conducted through email. Finally, Complainant would continue to attend Senior Staff meetings.
On November 30, 2017, Complainant reported that S1 remained in a position “where she is exercising biased supervision and decision-making over my work.”
On December 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when:
1. On October 15, 2017, Complainant’s work responsibilities were altered;
2. In October 2017, Complainant received written performance counseling; and
3. Complainant was subjected to a hostile work environment, characterized by, but not limited to inappropriate comments and being excluded from meetings and emails.
[…]
The Agency has already conceded in its final decision that Complainant established the first four elements of her prima facie hostile work environment case. The Agency held that Complainant failed to establish that it was liable for the hostile work environment, as it had established an affirmative defense. However, with respect to vicarious liability, element (5), the affirmative defense is not available to the Agency because we have found that S1’s actions culminated in a tangible employment action, changed worked duties.
Moreover, even if there was no tangible employment action, we find that the Agency failed to take prompt and effective action when it was notified of S1’s harassment of Complainant. While we acknowledge that the Agency initiated an informal investigation, counseled S1, and instituted a “carve-out” for evaluation purposes, we find that these actions were insufficient to meet the Agency’s full responsibility to take appropriate corrective action. ROI, at 500-501, 548-549, 599- 600, 621-623. Specifically, the Agency failed to fully remove S1 from supervisory authority over Complainant. According to counseling notes, it was S1 who stated that she did not want to rate Complainant and Agency officials initially encouraged S1 to work with Complainant despite the Agency’s contention that it did so at Complainant’s request. ROI, at 538-540. For example, on November 3, 2017, the Agency counseled S1 regarding her supervision of Complainant and instructed S1 to “provide regular guidance and coaching to help her develop professionally.” Id. at 538. The record further shows that S1 still exercised some level of control over Complainant’s work beyond November 2017 when the Agency changed Complainant’s rater.
For example, S2 “counseled [S1] to let Complainant know if there was action she should be taking that she was not” in December 2017. ROI, at 554. Even in January 2018, S1 continued to email Complainant in a supervisor capacity. Id. at 313-314. The record reflects that although S1 was removed from completing Complainant’s rating, S1 continued to harass Complainant. Complainant indicated that she reported the harassment, but it continued. Taking only some remedial action does not absolve the Agency of liability where that action is ineffective. Logsdon v. Dep’t of Justice, EEOC Appeal No. 0120081287 (Apr. 23, 2009).
The Agency asserted that it further took detailed and effective action when Complainant was offered an alternative position, which she declined, as a solution to her concerns. However, remedial measures should not adversely affect the complainant and Complainant viewed the offer as punitive. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 28-9. If it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Id. The Agency did not move S1, despite requests from Complainant and S1, until April 2018 while Complainant was on maternity leave. We find that the Agency failed to take prompt and effective action. Accordingly, we find that the Agency is liable for S1’s harassment of Complainant. For the foregoing reasons, we find that Complainant has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.
CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER The Agency is ordered to take the following remedial action:
1. Within ninety (90) calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation of Complainant’s entitlement to compensatory damages. The Agency is directed to inform Complainant about the legal standards associated with providing compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant shall be given 30 calendar days from the date she receives the Agency’s notice to provide all supporting evidence of her claim for compensatory damages. Within thirty (30) calendar days of the date the Agency receives Complainant’s submission, the Agency shall issue a new final decision determining Complainant’s entitlement to compensatory damages, together with appropriate appeal rights.
2. Within ninety (90) days of the date this decision is issued, provide no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved 9 2019001540 in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment. The Commission recommends that the Agency review the following EEOC publication: Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999).
3. The Agency shall consider taking disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s).
4. Within thirty (30) days of the date this decision is issued, the Agency shall reinstate Complainant’s assignments changed by S1 and remove all documentation and references to the October 2017 written performance counseling from all personnel records, including Complainant’s official personnel files.
5. The Agency shall post a notice in accordance with the Posting Order below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented.
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