Next, we find that there is basis for holding the agency vicariously
liable for S1’s harassment of complainant based on race. Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors,
EEOC Notice No. 915.002 (June 18, 1999) (“Vicarious Liability Guidance”),
at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 , 118
S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775,
118 S.Ct. 2275, 2292-93 (1998)). “An employer is subject to vicarious
liability for unlawful harassment if the harassment was committed by
‘a supervisor with immediate (or successively higher) authority over
the employee.’” Vicarious Liability Guidance at 4. An individual who
is authorized to direct another employee’s day-to-day work activities
qualifies as his or her supervisor. Vicarious Liability Guidance at 6
(citing Faragher, 118 S. Ct. at 2280). The record reveals that S1 had
supervisory power over complainant in that he controlled complainant’s
day-to-day work activities. Id. Liability for S1’s actions is,
therefore, imputed to the agency. Id.
