Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJun 18, 20140120114216 (E.E.O.C. Jun. 18, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120114216 Hearing Nos. 420-2010-00073X; 420-2010-00164X Agency Nos. ATL-09-0678-SSA; ATL-10-0196-SSA DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the Agency’s September 16, 2011 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. BACKGROUND Agency No. ATL-09-0678 At the time of events giving rise to this complaint, Complainant worked as a Teleservice Representative in Unit 1 at the Agency’s Mega-Teleservice Center in Birmingham, Alabama. Around April 2009, the Unit 2 Manager (M1) began visiting Complainant at her desk on the second floor. M1 was not Complainant’s supervisor or in her chain-of-command, but could approve her leave requests if her supervisor or designated back up management official was not available. Complainant and M1 began a relationship, which included sending sexually suggestive emails, phone calls, and exchanging sexual cell phone pictures. In addition, Complainant and M1 had sexual contact in the stairwell at work on several occasions during breaks. Around April 6, 2009, Complainant left work early and called M1 with directions to her apartment. M1 drove to Complainant’s apartment, and they had sex. Complainant and M1 met at Complainant’s apartment again on or around May 8, 2009, and had sexual intercourse a second time. Sometime around June 2009, the relationship ended after Complainant told M1 that she was pregnant and had had an abortion. Around this time, Complainant told her mother, an Agency employee, that she was being sexually harassed at 0120114216 2 work and asked about the Agency’s sexual harassment policies. Complainant’s mother contacted Complainant’s aunt, the administrative assistant for the Deputy Director (DD), who reported the alleged harassment to DD on June 29, 2009. On June 30, 2009, Complainant met with DD and provided a statement naming M1 as her alleged harasser the next day. After Complainant identified M1, DD moved M1 to a different section and unit on the same floor. A few days later, Complainant was temporarily moved to the fifth floor to keep her from crossing paths with M1. The Director contacted the Regional Commissioner, whose office conducted an investigation into Complainant’s harassment claim. Complainant refused to participate in the investigation. M1 again denied that he sexually harassed Complainant and stated that they had a consensual sexual relationship. The investigative team reviewed employee and management interviews, documents, and emails and found that there was no evidence that M1 sexually harassed Complainant. The team concluded, however, that Complainant and M1’s relationship was consensual, but inappropriate. At the Director’s recommendation, M1 was demoted into a non-supervisory position in the Agency’s Program Service Center on a different floor. M1 had no further contact with Complainant. On August 14, 2010, Complainant filed a formal complaint (Agency No. ATL-09-0678) alleging that she was subjected to a hostile work environment on the bases of race (Caucasian) and sex (female) when, beginning in April 2009, she was subjected to continuous and ongoing sexual harassment by M1 as evidenced by multiple incidents including, inter alia, non-work related visits to her work area; threats to her job; explicit sexual comments; staring and touching in a sexual nature; and, sexual pictures of him shown to her. Agency No. ATL-09-0678 In mid-October 2009, Complainant went out on extended leave. Complainant’s doctor faxed medical documentation in support of Complainant’s request for advance sick leave addressed to DD. The Director’s office’s fax number is the main number used for Agency correspondence, and, as a result, the Director received the documentation. Neither the Director nor DD read the documentation, but the Director called Complainant’s second-level supervisor (S2), her leave-approving official, to pick up the documentation. S2 reviewed the documentation and approved the leave. S2 sealed up the information after she approved the leave request. When Complainant returned to work, she was instructed to report back to her original workstation on the second floor. Complainant believed that her temporary reassignment to the fifth floor should have continued until her EEO complaint had been resolved. Nonetheless, M1 had already been demoted and reassigned to the seventh floor, but Complainant saw him on the second floor soon after she returned. The Director learned that Complainant had returned to work earlier than expected and M1 was forbidden from visiting anyone on the second floor immediately thereafter. 0120114216 3 On January 25, 2010, Complainant filed a second complaint (Agency No. ATL-10-0196) alleging that the Agency subjected her to a hostile work environment in reprisal for her prior protected EEO activity when management failed to provide her a safe and stress-free environment via a reassignment pending the outcome of her sexual harassment complaint filed against her managerial official and her personal medical records were viewed by third parties within the office. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ consolidated the two complaints, held a hearing on June 23 and 24, 2011, and issued a decision on August 11, 2011. In her decision, the AJ determined that Complainant had not established a prima facie case of race-based discrimination. Specifically, the AJ found that the evidence did not establish that there were similarly situated employees outside of her protected group who were treated more favorably. Further, the AJ concluded that Complainant had not established that the harm she allegedly sustained was based on her race. Next, the AJ determined that Complainant had not established that she was subjected to a sexually hostile work environment. Specifically, the AJ found that the credible evidence established that Complainant and M1 had a consensual sexual relationship, including having sex in the stairwell and at Complainant’s apartment. Additionally, the AJ determined that the credible evidence showed that M1’s conduct did not affect a term or condition of Complainant’s employment or had the affect of unreasonably interfering with her work environment or creating an intimidating, hostile, or offensive work environment. Further, the AJ found that even if Complainant could establish that a sexually hostile work environment existed, the credible evidence did not show that the Agency should be held liable for M1’s behavior. M1 was not a supervisor with immediate or successively higher authority over Complainant and there was no evidence that the Agency knew or should have known of M1’s behavior until on or about April 29, 2009. Even so, the Agency took swift remedial actions when DD learned of the allegations. Finally, the AJ found that there was no evidence that Complainant was subjected to reprisal. As to her claim that the Agency failed to provide her with a safe and stress-free environment after her sexual harassment complaint, the AJ determined that when Complainant returned to work after reporting the alleged harassment, the Agency had already moved M1 and temporarily moved Complainant to another floor which would avoid Complainant having to interact with M1. Further, as to her claim that her personal medical records were viewed by third parties in the office, the AJ noted that the records were faxed to DD, but were delivered to the person responsible for processing the leave request. Accordingly, the AJ found that Complainant had not been subjected discrimination, reprisal, or a sexually hostile work environment as alleged. Complainant submitted the instant appeal without any contentions or arguments in support. 0120114216 4 STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.†Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint , 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999). ANALYSIS AND FINDINGS Sexual Harassment In order to establish sexual harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (Title VII “forbids only behavior so objectively offensive as to alter the ‘conditions' of the victim's employment.â€). The harassing conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc. , EEOC Notice No. 915.002 (Mar. 8, 1994). In a case of co-worker harassment1, an agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. § 1604.11(d). An Agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id 1 The Commission notes that substantial record evidence supports that AJ’s finding that M1 was not Complainant’s supervisor, nor did he have any immediate authority over Complainant. . What is appropriate remedial action will necessarily depend on the particular facts of the case, such as 0120114216 5 the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep’t of the Air Force , EEOC Request No. 05920194 (July 8, 1992). Upon careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record, and there is nothing to undermine her credibility determinations. The Commission concludes that substantial record evidence supports the AJ’s finding that Complainant failed to establish that she was subjected sexual harassment or a discriminatory hostile work environment. The AJ found that the conduct at issue was not unwelcome as Complainant and M1 engaged in a consensual sexual relationship, including sending each other sexually explicit pictures and having sex in the stairwell at work and at Complainant’s apartment and Complainant has presented no persuasive evidence to the contrary. Even assuming that Complainant had established that she was subjected to sexual harassment and a hostile work environment, the Commission finds that there is no basis for holding the Agency liable. After Complainant reported the alleged harassing conduct, M1 was immediately moved to different unit, and Complainant was moved to another floor pending an investigation into Complainant’s allegations. Hr’g Tr., Vol. 1, at 143, 361-62. After the investigation was completed, M1 was demoted, reassigned, removed from the Teleservice Center for inappropriate behavior. Hr’g Tr., Vol. 2, at 22-24. Complainant was returned to her original workstation and M1 was instructed to not visit the second floor. Id. at 22-25. Complainant has not shown that management's actions were insufficient or not appropriate as the record shows that following management's actions M1 had no further contact with Complainant. See Taylor (appropriateness of remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps). As such, Complainant failed to show that she was subjected to sexual harassment or a discriminatory hostile work environment as alleged. 0120114216 6 Reprisal The Commission finds that the AJ's determination that the Agency articulated legitimate, nondiscriminatory reasons for its actions is supported by substantial record evidence. Specifically, as to Complainant’s return to her original work location, the Director testified that she decided to return Complainant to the second floor Teleservice Center after the sexual harassment investigation was completed because she needed her there. Hr’g Tr., Vol. 2, at 23-26. The Director added that M1 had been demoted and reassigned to the seventh floor. Id. at 23-24. The Director offered to allow Complainant to move to another unit in the Teleservice Center if she did not want to return to the same unit; however, Complainant failed to respond. Id. at 26. The Director further testified that Complainant had been out on extended leave and management was not aware of when she would return. Id. at 25. When Complainant returned, management did not know she was coming back to work on that date, and Complainant saw M1 on the second floor visiting someone on their break. Id. The Director testified that once she became aware of this, she instructed DD to inform M1 that he was no longer allowed on the second floor. Id . Finally, as to her medical documentation, S2 testified that Complainant requested advance sick leave in Fall 2009. Hr’g Tr., Vol. 1, at 372-73. Complainant’s doctor faxed the supporting medical documentation to the Director’s office and the Director requested that S2 pick it up. Id. at 373. S2 was Complainant’s leave approving official and needed the documentation to determine whether the leave would be approved. Id. at 375. S2 reviewed the documentation, approved the leave, and sealed the documentation to protect Complainant’s confidentiality. Id . at 375-76. S2 credibly denied sharing the information with anyone else. The Commission finds that there is substantial evidence in the record to support the AJ's finding that Complainant did not establish that the Agency's explanation was pretext for retaliation. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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: 0120114216 7 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 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. 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 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court does not extend your time in which to file a civil action. Both the request and 0120114216 8 the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Actionâ€). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date June 18, 2014 Copy with citationCopy as parenthetical citation