In Paula James v. Leon Panetta, DOD (Defense Threat Reduction Agency), EEOC Appeal No. 0120102361 (OFO Jan. 4, 2012), the EEOC’s Office of Federal Operations reversed summary judgment in a sexual harassment case. The decision is interesting because, besides reversing a summary judgment decision in favor of the agency, it deals with a situation where the complainant claimed that she was sexually assaulted by a coworker in 2002 but did not file a complaint at that time (due to fear, shame, fright and confusion as experienced by many sexual harassment victims). Later, in 2005, the co-worker (then a supervisor) came back into the picture and began to sexually harass the complainant again (comments, gestures). In 2006, the courageous complainant finally filed a complaint alleging sexual harassment back to 2002. The complaint was initially dismissed for untimeliness, but OFO reversed the dismissal noting that the alleged sexual harassment events between 2002 and 2006 constituted a “single claim” of sexual harassment. On remand, and after investigation, the case went to EEOC Washington Field Office (Administrative Judge Hodges) for hearing. But, the AJ granted summary judgment in favor of the agency reasoning that the 2002 events were still untimely, that the 2006 and later allegations were not “severe and pervasive,” and that there was no retaliation against complainant after she filed her complaint in 2006. AJ was reversed on all points, and the matter has been remanded for hearing.

There is good discussion in the opinion that, in order to make an actionable retaliatory harassment claim, a complainant does not have to allege a retaliatory “ultimate employment action.” In this case, after complainant filed her complaint in 2006 and met with the office director, rumors began to circulate that she had romantic affairs with other employees in the office to besmirch her character and credibility (totally untrue).

Finally, and, indicative of how difficult these cases are, the co-worker has never been disciplined for his actions, including, sendig pornographic information to others in the office on government computers. The “Good Ole Boy” network at its worst.

– submitted by Michael J. Riselli

Newsletter Volume: 
Newsletter - January/February 2012
January