Tips From the Other Side, Part 9

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By Meghan Droste September 19, 2018

No one — at least no one I know — likes to get in trouble. It’s never fun to be caught in the act or to be called out for failing to meet expectations. When it looks like we have been caught, we tend to deflect: I didn’t do it; and if I did, it wasn’t really that bad; and no matter how bad it was, you can’t punish me for it.

From what I remember, this rarely worked when I was a child, and it certainly does not work when arguing a case. Unfortunately, it seems that several agencies missed this memo when it comes to arguing that the EEOC does not have the authority to issue monetary sanctions.

In case after case, the Commission has shot down variations of the same argument when it comes to monetary sanctions. Several agencies have argued that the EEOC does not have the authority to order a federal agency to pay money to a complainant as a form of sanction in the administrative process.

These arguments generally center on the idea of sovereign immunity — the principle that a party may not sue the government without its consent. Agencies assert that the federal government has not waived sovereign immunity in a way that would permit it to use public money to pay a sanction in connection with an order from the EEOC.

The argument that sovereign immunity prevents the Commission — both administrative judges and the Office of Federal Operations — from ordering an agency to pay monetary sanctions goes back to at least 2005 with the case of Matheny v. Department of Justice, EEOC Req. No. 05A30373 (Apr. 21, 2005). In at least 11 other cases, agencies have asserted the same argument, including as recently as in the Taylor Z. v. Department of the Army decision from July EEOC Pet. No. 0420160037 (July 26, 2018). In every case, the Commission has rejected this argument outright and concluded that it has the authority to issue these sanctions.

This is a losing argument. Trust me. I cannot envision any circumstance in which the Commission is going to suddenly reverse its position on this issue.  Please save yourself, and everyone else, the trouble and do not try this argument.  You’re not going to win and you will only succeed in wasting the time and resources of your agency, the complainant and the Commission.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to Droste@FELTG.com.

CBA or not to CBA: What Controls in Settlement?

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By Meghan Droste, August 15, 2018

Time for me to let you in on a little secret, readers — I have a bit of a formula for writing my monthly articles for you. I always start by looking at the most recent EEOC decisions; I pick one that looks interesting and I write an article on it. I like to think this is helpful for you because it keeps you up-to-date on what the EEOC has ruled on in the past few months (and bonus for me: It keeps me up-to-date for my own cases). The selection is a bit dependent on what I find interesting though, which has resulted in a few topics or themes coming up more than once.  One of those topics is settlement agreements. It seems that fewer complaints actually go to a hearing these days, in part, because many of them settle. That makes settlement agreements — both drafting them correctly and then complying with them — very important for agencies and complainants.

The Commission recently reminded us of the importance of being careful when drafting agreements in its decision on a request for reconsideration in the case of Celinda L. v. U.S. Postal Service, EEOC Req. No. 0520180260 (June 7, 2018). In this case, the agency and the complainant reached a settlement that included the offer of adjusting the complainant’s seniority date. The settlement agreement contained a disclaimer that if the provision violated the applicable collective bargaining agreement, the settlement agreement would be null and void.  After the parties signed the agreement, the agency notified the complainant that it believed the settlement agreement violated the collective bargaining agreement, which prohibited the change to her seniority date. The agency offered to modify the seniority date provision of the settlement agreement or to reinstate the underlying EEO complaint. When the complainant did not respond, the agency modified the settlement agreement and notified the complainant of her appeal rights. The complainant filed an appeal and the EEOC issued a decision in her favor. It concluded that the agency “should have raised its concerns about the CBA prior to the execution of the settlement agreement.” The EEOC reversed the agency’s Final Agency Decision finding that it did not breach the agreement. The agency then requested reconsideration, which the Commission denied.

Unfortunately, at the time of writing this article the Commission’s decision on the appeal is not available on Lexis or the EEOC’s website, so I can’t provide you with more details on its reasoning in this specific case. This is not, however, the first time the Commission has addressed this issue. In Inglesias v. U.S. Postal Service, EEOC Req. No. 0520110503, 0520110270 (Mar. 30, 2012), the Commission determined that the Agency could not establish that the settlement agreement in question violated the terms of the collective bargaining agreement. It found an affidavit from a labor relations manager concluding that there was a violation to be insufficient. The Commission also reminded the agency that labor relations should review settlement agreements before the parties sign them, to avoid these situations.

Settlement agreements are contracts. The parties are generally bound to them even if they come to regret them later. If there is even a remote chance that the terms of a settlement agreement might violate a collective bargaining agreement, please be sure to get your agency’s labor relations team involved before anyone puts ink to paper and finalizes the agreement.  If you don’t, you may have to suffer the slings and arrows of an outrageous settlement agreement. Droste@FELTG.com

Tips from the Other Side, Part 8

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By Meghan Droste, August 15, 2018

A certain coffee and pastry chain that originated in the great Commonwealth of Massachusetts, from which I also hail, advertises that America runs on its products.  While I imagine that a good chunk of the federal workforce is well caffeinated, I think it is safe to say that the federal government runs on forms.  Lots and lots of forms—SF-50s, SF-86s, you name it and OPM probably has a form for it.

A potential client recently provided a copy of her pre-complaint intake form when she contacted my office seeking representation. I will keep the agency’s name confidential to protect the guilty, but I was very concerned to see that the agency had not updated its forms in several years.  How do I know this?  The form states that sexual orientation is not covered by Title VII and therefore the agency will not process discrimination claims based only on sexual orientation under 29 C.F.R. § 1614.

The information contained on this form is incorrect.  Don’t believe me?  Check out what the Commission had to say about this in 2016: “We find that the Commission has jurisdiction over Complainant’s sexual orientation discrimination claims pursuant to our findings in Baldwin v. Department of Transportation, which held that a claim of sexual orientation discrimination is a claim of sex discrimination, and therefore covered under Title VII and properly processed under the 29 C.F.R. Part 1614 process for EEO complaints.”  Ronny S. v. Dep’t of Veterans Affairs, EEOC App. No. 0120132198 (May 17, 2016).

It doesn’t get much more to the point than that. I am willing to give the EEO office at this unnamed agency the benefit of the doubt and assume that the counselors and other staff know that sexual orientation is covered by Title VII. But having the incorrect information on the form could confuse other agency employees or, even worse, discourage them from filing complaints that they are entitled to file.

The tip for this month is very simple — update your forms!  You and your agency should stay on top of developments in EEO law and then update your forms, and all other materials, accordingly.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me at Droste@feltg.com.

Tips from the Other Side, Part 8

What’s Harm Got to Do With It, Got to Do With It? – Or, Determining Compensatory Damages

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By Meghan Droste, July 18, 2018

I apologize/you’re welcome for putting that 80s classic in your heads. It may have been the recent debate in my office about the relative merits of other great 80s artists that made me think of it, but that Tina Turner hit is also somewhat related to the idea of compensatory damages. It’s all about emotions, and broken hearts and how to heal them. Tina Turner’s suggestion seems to be to try to avoid falling in love so that you don’t get your heart broken. Of course, in EEO cases, the harm has already happened. Until someone invents a time machine, we can’t avoid it. What we can do is compensate complainants for the harm. Pecuniary damages are usually straightforward — simply reimburse the complainant for her out-of-pocket expenses — but non-pecuniary damages can be more complicated. How can we really put a price on emotional distress?

Sometimes both the pecuniary and non-pecuniary damages are complicated by preexisting conditions and other factors. The Commission’s decision in Stephanie A. v. Department of Defense, EEOC App. No. 0120161052 (June 5, 2018) lays out some of the important factors to consider. In the underlying complaint, the Commission found the Agency subjected the Complainant to sexual harassment and retaliation. Following the Commission’s first decision, the Agency issued a Final Agency Decision on damages.  The Agency found the harassment “severely affected” the Complainant and exacerbated several health issues for an extended period of time (10 years passed between the initial harassment and the appeal). The Agency determined that the appropriate award was $60,000 in non-pecuniary damages and $3,113.64 in pecuniary damages, along with the restoration of 91 hours of leave. The Complainant appealed the FAD on the grounds that the pecuniary and non-pecuniary awards were insufficient.

In its decision, the Commission noted that “[t]here is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm.”  Although the Commission declined to increase the award to $300,000 as the Complainant requested, it did consider her testimony that she “suffered nightmares, developed stomach ulcers, anxiety, irritable bowel syndrome, and acid reflux.” The record also contained statements from family members who described the significant impact of the harassment on the Complainant’s physical and mental health. The Commission found the harm was severe and long-lasting, and awarded the Complainant $100,000 in non-pecuniary damages.

The Commission also increased the award of pecuniary damages. The Commission found that the Agency improperly reduced the out-of-pocket expenses by dismissing most of the $50,000 in prescription medications as being connected to chronic conditions that the Complainant suffered from before the harassment. The Agency further reduced the award by considering what the Complainant’s insurance covered for appointments and testing. The Commission found these reductions to be improper.   Although the Agency was correct that the Complainant’s conditions began before the harassment, the Agency failed to consider the evidence in the record that the harassment significantly exacerbated these conditions. The Agency could not avoid compensating the Complainant for the notable increase in prescription medications and appointments just because its actions were not the initial cause of the conditions. The Agency also could not reduce its liability based on insurance payments. As the Commission reiterated, under the collateral source rule, an agency may not reduce pecuniary damages awards based on the portion of the full costs an insurance carrier covers. It must instead pay the full cost of the healthcare.  As a result, the Commission increased the pecuniary damages award to $107,381, over $100,000 more than the Agency’s original award.

In a perfect world, we will prevent harassment from occurring and address it immediately, if and when it does occur. In our imperfect world in which harassment still goes on and complainants are still harmed, be sure to do the math correctly when considering an award of damages. After all, the answer to “What’s the harm got to do with it?” can be a lot. Droste@FELTG.com

Tips from the Other Side, Part 7

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By Meghan Droste, July 18, 2018

At the time that I am writing this, I am in the midst of preparing to travel to Japan to teach a course on investigations. In between my packing lists and researching things to do and places to eat, I am also thinking a lot about investigations: What are the best ways to prepare for an investigation?  What are effective interview techniques? All kinds of details that I am looking forward to sharing with my class. As a complainant’s attorney, I spend some time thinking about investigations as well, particularly what information should have been included and what information is missing. Unfortunately, it is not unusual to find that key information is missing from a Report of Investigation.

I wrote about investigations recently in the context of witness interviews. In Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), the Commission remanded the complaint back to the Agency for a supplemental investigation to include interviews of several witnesses.  While a supplemental investigation may be helpful, it generally is not the outcome I seek when I find the Agency has not done a thorough investigation. Like the Complainant in Ross H. v. U.S. Postal Service, EEOC App. No. 072018001 (May 17, 2018), I often ask for more severe sanctions, including default judgment.

The complaint in Ross H. involved three non-selections. The Agency’s Report of Investigation was unfortunately missing several key pieces of information. It failed to include “application materials and qualifications of the candidates selected for two positions at issue, failed to identify the candidate selected for a third position, and failed to include interview notes for all three positions.” The Complainant moved for sanctions and asked the administrative judge to award default judgment in his favor. In response, the Agency argued that the ROI did have relevant information including affidavits and vacancy announcements, the Complainant did not suffer any prejudice, and the parties could cure the deficiencies in discovery. In support of its argument, the Agency asserted that its failure to identify one of the selectees was not an issue because the Complainant knew who the selectee was. Unsurprisingly, the administrative judge did not find this persuasive and granted default judgment in favor of the Complainant. The Commission upheld the sanction, finding the Agency’s failure to complete a sufficient investigation was “egregious.”  It concluded that default judgment was appropriate “in the interest of protecting the integrity of the EEO process.”

Agency EEO offices should always review an ROI for sufficiency before sending it out.  The necessary documents and testimony will vary from case to case, so be sure to determine what is appropriate for each ROI. And of course, in a non-selection case, be sure to include the names and qualifications of the selectees.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com

Religious Objections to LGBT Rights: What Prevails in the Federal Sector?

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By Meghan Droste, June 12, 2018

As you may know, June is Pride Month—a time to reflect on the history of the LGBTQ rights movement and to celebrate the advances we have made.  The timing is connected to the 1969 Stonewall riots in New York, which were a significant tipping point for the movement.  In addition to the upcoming parades and parties, LGBTQ rights are also in the news right now because of the Supreme Court’s recent decision in the closely watched Masterpiece Cakeshop v. Colorado Civil Rights Commission case.  Although the federal government generally is not in the business of baking cakes—please send me edible proof if I am wrong—the underlying issues in Masterpiece Cakeshop are related to issues that we might encounter in the federal sector.

Masterpiece Cakeshop centers on a Colorado baker’s decision not to bake a wedding cake.  Baker and shop owner Jack Philips refused to provide any custom cake for the wedding of same-sex couple Charlie Craig and Dave Mullins.  In response, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission.  The Colorado Anti-Discrimination Act (“CADA”) prohibits discrimination in the provision of goods or services on the basis of sexual orientation (and several other categories), and Craig and Mullins asserted that Philips’ refusal fell squarely within this prohibition.  Philips argued that baking and decorating a cake for the wedding of an LGBTQ couple would amount to conveying a message of support for same-sex marriage.  He objected to same-sex marriage on religious grounds and therefore asserted that the application of CADA to him interfered with his free exercise of religion.  The Supreme Court ultimately decided the case on vary narrow grounds, focusing on the way the Colorado Civil Rights Commission reviewed and analyzed the case, and not on whether religious beliefs can excuse violations of anti-discrimination law.

Although the Commission has not issued a decision on the rights of cake bakers in the federal government, it has considered claims of religious discrimination by those who object to the celebration, or even discussion, of LGBTQ rights in the federal government.  Two decisions from recent years illustrate this point.  In Complainant v. Environmental Protection Agency, EEOC App. No. 0120150930 (May 19, 2015) and Felton v. Environmental Protection Agency, EEOC App. No. 0120161612 (July 12, 2016), EEOC addressed complaints that appear to be raised by the same employee.  This employee asserted that the agency discriminated against him on the basis of religion when he received an agency-wide email that referenced Pride Month, and when he received an agency-wide email regarding a voluntary training on civil rights and the LGBTQ community.  He had previously requested that the agency not send him emails regarding LGBTQ topics and claimed that the agency’s failure to abide by this request was a failure to provide a religious accommodation.  The agency dismissed his complaints for failure to state a claim.  The Commission upheld these dismissals, finding that the complainant was not an aggrieved person for purposes of Title VII.  The complainant did not suffer a loss, the emails were not sufficiently harassing to state a claim, and there was no allegation that receipt of the emails in any way burdened the exercise of his religion.  At the end of the day, the Commission was not persuaded by the assertion that having to acknowledge the existence of LGBTQ people and their rights represents a harm to someone, even if it conflicts with an employee’s religious beliefs. Droste@FELTG.com

Tips from the Other Side: LGBTQ Terminology and Concepts

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My Meghan Droste, June 12, 2018

“The difference between the almost right word and the right word is really a large matter—it’s the difference between the lightning bug and the lightning.”  Mark Twain’s excellent note on word choice is a lesson we can all learn from both in the realm of EEO complaints and in the broader world.  Using the correct language to refer to our colleagues and to individuals we encounter in the EEO process is an important sign of respect and also a concrete step that agency employees can take to avoid EEO complaints.  The following terms and their definitions are a good start towards this goal.

Birth sex: The sex that is assigned to an infant at birth.  This assignment is based on the presence or absence of the infant’s external sex organs.  We generally do not talk about our sex organs at work so please do not ask anyone what their birth sex is, or what they were born as, or whether or not they are “really” a man or a woman.

Gender identity: A person’s internal sense of being male, female, or somewhere else on the gender spectrum.  We all have a gender identity and we convey it to the world through our gender expression.

Gender expression: The ways in which a person communicates his/her/their gender identity to everyone else.  This can include hairstyle, clothing, and mannerisms.

Transgender: This is an umbrella term that is most often used to describe people whose gender identity is different than their birth sex.  The more common form is now “trans.”  Do not use the word “transgendered” or refer to someone as “a transgender;” instead say that the person is transgender or that the person is a trans/transgender man or trans/transgender woman.

Gender confirmation: Also known as transition, this is the process by which a person modifies his/her/their gender expression and/or physical characteristics to be consistent with his/her/their gender identity.  Gender confirmation is not a one-size-fits-all process—it can take many forms and does not always include surgery or other medical intervention.

Cisgender: A person whose gender identity is the same as his/her birth sex.

Preferred pronouns: The pronouns—he/him/his, she/her/hers, they/them/theirs—that an individual prefers to use and prefers that others use.  It is acceptable (and can be very helpful) to ask someone to specify his/her/their preferred pronouns.  And yes, this includes the singular form of “they.”

Misgender: Intentionally referring to someone by the wrong gender, name, and/or preferred pronouns.  The Commission has held that misgendering an employee can be a form of harassment.

Sexual orientation: A person’s emotional, romantic, and/or sexual attraction to other people based on the sex of the other person.  We all have a sexual orientation, and it is not dictated by our gender identity or gender expression.  In other words, being trans does not define a person’s sexual orientation.

We should all do our best to use the correct terminology when referring to others.  Of course, mistakes can happen.  If you make a mistake, simply apologize and do your best to ensure it does not happen again.

If you have questions or want to learn more about these topics, join me in November for a webinar covering terminology, cases, and guidance on issues related to sex discrimination and LGBTQ discrimination in the federal sector.

 

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com

He Said, She Said – But What Did They Say?

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By Meghan Droste, May 16, 2018

We all know people who are able to make a decision right away—they can pick what to order after a quick glance at a menu, they can buy the first item they see, and they can plan a vacation on the fly.  I am sure those people are lovely people; they are certainly lucky in my perspective.  But they are not me.  I will spend hours researching online before I buy something.  For an upcoming trip, I bought two guide books and a country-specific etiquette book, and I am working my way through them before making any plans.  I need a lot of information before I can make a decision.

The EEOC is at least somewhat like-minded.  Agencies are required to “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.”  See 29 C.F.R. § 1614.108(b).  This means that there must be enough information from which a reasonable factfinder can determine whether the agency violated the law.  See MD-110, Ch. 6, §IV(C).  Investigations may take different forms, but generally an agency must interview the relevant witnesses and collect the necessary documents.  The Commission’s recent decision in Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), is a good example of why this is important.

In the Mari R. case, the complainant alleged that her first-line supervisor sexually harassed her over a period of at least three months.  The harassment included vulgar comments and sexual gestures.  The complainant testified that the union president warned her in advance that the supervisor had a history of sexually inappropriate behavior towards female employees.  She also testified that at least one other employee witnessed the supervisor’s remarks to her, and two other employees told her that the supervisor had increased the workload of the last female employee who turned down his sexual advances.  The supervisor denied the complainant’s allegations.

In its final agency decision, the agency concluded that the complainant did not prove that the agency had subjected her to discrimination.  On appeal, the Commission vacated the agency’s decision and remanded the complaint for a supplemental investigation.  The Commission noted that the investigator only interviewed the complainant, the responsible management officials, and other management witnesses.  The investigator failed to interview any of the six witnesses the complainant identified.  These employees either witnessed the supervisor’s comments and gestures towards the complainant or were previous victims of the supervisor.  There was no explanation for the decision not to interview the witnesses.  The Commission found that the investigator’s decision not to conduct these interviews “unfairly restricted [the complainant’s] ability to prove that she was subjected to discrimination . . .”  Without information from both sides, the Commission did not have enough information to determine whether the supervisor had actually acted as the complainant alleged.

Keep these lessons in mind as your agency investigates complaints, and make sure the factfinder has enough information to make an informed decision. Droste@FELTG.com

[Wiley Note: The quality of agency investigations, or lack thereof, is becoming a bigger and bigger issue on appeal. The first case to hit us between the eyes was Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). If you attend our Workplace Investigations Week seminar, you’ll hear us talk about the mistake of using a biased investigator when investigating misconduct. More recently, in a 120-page initial decision, an MSPB administrative judge mitigated the removal of a highly-publicized employee (think 60 Minutes public) based in large part on perceived investigator inadequacies. Chen v. Commerce, CH-0752-17-0028-I-1, (April 23, 2018)(ID). If you are drifting along old-school, thinking that just about anybody who is upright and convenient is capable of conducting a workplace investigation that will withstand EEOC, MSPB, or federal court scrutiny, you absolutely must read these two decisions.]

Tips from the Other Side: Developing a Record on Joint Employment

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By Meghan Droste, May 16, 2018

As the regular readers of this column know, I generally represent employees, both in the federal and private sector.  In my time I have also represented federal agencies, so I have seen how resources can be stretched thin at times.  Agencies often have too many cases and simply not enough time to handle them.  Faced with these circumstances, I can understand the temptation to dismiss complaints as early as possible.

As a complainant’s counsel, it seems that when there is a joint employer issue, agencies automatically dismiss the case as soon as they receive the formal complaint.  This means, of course, that I have to file an appeal.  When briefing the issue, there is very little to discuss because the agency has not created any record.  This makes it more difficult for me to support my position that the agency is a joint employer, but it makes it nearly impossible for the agency defend its position that it is not.

The question of whether the agency is a joint employer turns on an analysis of several factors that come from Ma & Zheng v. Department of Health & Human Services, EEOC App. No. 01962389 (May 29, 1998).  This is a very fact-specific inquiry, focused on factors such as who assigns work to the complainant, who approves leave requests, and who selected and/or removed the complainant from the position.  Too often, agencies look only to the language of the contract between the agency and contracting company—which inevitably states that there will not be an employee-employer relationship with the agency and the contractors—to support the position that the complainant was not an employee.  Agencies reach this conclusion without any investigation into the other factors.  The Commission then inevitably concludes that the record is insufficient and remands the complaint to the agency for investigation.  A search of Commission decisions reveals several appeals with this exact outcome.  See, e.g., Alan F. v. Dep’t of Agric., EEOC App. No. 0120161089 (March 5, 2018); Complainant v. Army, EEOC App. No. 0120150809 (June 12, 2015); Complainant v. Dep’t of State, EEOC App. No. 0120131112 (October 17, 2014); Tolbert v. Dep’t of Defense, EEOC App. NO. 0120113572 (January 24, 2013).

I recommend that agencies carefully consider whether to dismiss a complaint for failure to state a claim in potential joint employer cases.  While it may seem like a time saver, it will likely end up taking up unnecessary resources in an appeal the agency will not win.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: Droste@FELTG.com.

Affirmative Defenses: Making the Complainant Whole

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By Meghan Droste, April 18, 2018

In the era of the #MeToo and #TimesUp movements, there has been a lot of discussion of what constitutes harassment, what we are no longer willing to tolerate or excuse, and who is experiencing harassment.  To a certain extent, we have also started discussing what should happen once an allegation is raised, but most of those conversations have centered around very prominent men either losing or quitting their jobs.  That can’t be the end of the conversation.  We need to continue talking about what employers are obligated to do once they learn that someone has been harassing a subordinate or a coworker.  From an agency’s perspective, this conversation is essential not only to ensuring that the victim of the harassment can go back to focusing on her work instead of being harassed, but also so the agency can ensure it has done everything it is required to by law.

In 1998, the Supreme Court decided a pair of cases—Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton—in which it addressed the concepts of vicarious and strict liability.  In these cases, the Court examined when an employer may be strictly liable for harassment by a supervisor, and when it may avoid liability by putting forward affirmative defenses.  The takeaway from these cases is that an agency will be strictly liable for supervisory harassment if the supervisor takes a tangible employment action (e.g. firing or demoting the employee).  If, however, the harassment stops short of a tangible employment action, the agency may avoid liability if it can show that it took prompt and effective corrective action as soon as it became aware of the harassment, or if the employee unreasonably failed to take advantage of a published reporting procedure.

All of this of course invites the question of what constitutes prompt and effective corrective action?  What must an agency do to take advantage of this affirmative defense?  The Commission recently addressed this in Jenna P. v. Department of Veterans Affairs, EEOC App. No. 0120150825 (March 9, 2018).  As the Commission explains, the complainant’s first line supervisor (“S1”) sexually harassed her for several months.  What began with comments about the complainant’s appearance and clothing quickly escalated to S1 asking the complainant to have sex with him and another management official.  S1 also exposed himself to the complainant several times and groped her on more than one occasion.  After more than seven months of harassment, the complainant’s fiancé, who was also an agency employee, reported the harassment to his supervisor.  Immediately after the report, the complainant’s second-line supervisor (“S2”) placed S1 on administrative leave pending an investigation.  Within two days of the report, S2 assumed direct supervision of all employees previously under S1, granted the complainant indefinite telework, and arranged for harassment training for all management officials.  S2 also met with S1 and then later that day accepted S1’s voluntary resignation.

As I started to read the Commission’s decision my first thought was how the agency appeared to do the right thing.  So often we see cases that make it to OFO because the agency fails to take the complaint seriously or takes corrective actions that only serve to punish the complainant rather than the harasser.  In Jenna P., the agency tried.  Unfortunately, it didn’t quite do everything it needed to do.  The complainant filed a formal complaint regarding the harassment as well as a subsequent delay in her career ladder promotion.  After the complainant withdrew her request for hearing, the agency issued a Final Agency Decision.  In it, the agency concluded that it was not liable for the harassment.  The agency relied on the steps S2 took immediately after he learned of the harassment and S1’s resignation, which prevented the agency from taking any further action against him.  In reviewing the complainant’s appeal, the Commission found that although the agency had taken several steps to address the harassment, it failed to make the complainant whole.  As a result of the harassment, the complainant had used sick leave and annual leave; the agency had not restored the leave or provided the complainant with the appropriate back pay.  The Commission concluded that because the agency had not made the complainant whole, it could not avail itself of the affirmative defense.  The agency therefore was liable for the harm the months of sexual harassment caused, even though the harassment did not include a tangible employment action and the agency was not aware of it until the very end.

This case is a good reminder to all of us that agencies are “under an obligation to do ‘whatever is necessary’ to end harassment, to make a victim whole, and to prevent the misconduct from recurring.”  As we continue to discuss how we can prevent and stop harassment, we also need to focus on what we must do to undo the significant harm that so often follows. Droste@FELTG.com