Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 18, 2014

0120114216 (E.E.O.C. Jun. 18, 2014)

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
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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.

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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.
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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.”).
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
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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.
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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:

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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
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
June 18, 2014