0120132236
05-16-2014
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120132236
Agency No. DOS-F-037-10
DECISION
On May 24, 2013, Complainant filed an appeal from the Agency's May 13, 2013, final decision 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 accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision, and REMANDS the complaint for a supplemental investigation.
ISSUE PRESENTED
Whether the record has been adequately developed to make a determination on Complainant's allegations that she was subjected to disparate treatment with regard to her career advancement and contract renewal and that she was subjected to hostile work environment harassment.
BACKGROUND
Complainant was a contractor at ICA Language Services when in April 2008 she began serving as an Arabic Language and Culture Instructor at the Agency's Foreign Service Institute in Arlington, VA. In November 2009, Complainant and a female coworker initiated EEO counselor contact, alleging that a male Arabic Language Training Supervisor sexually harassed them.
Coworker's harassment complaint (Agency No. DOS-F-028-10)
To support her complaint, the coworker submitted an unsworn, unsigned, and undated declaration, detailing various incidents involving the supervisor. See EEOC Appeal No. 0120101859 (Aug. 18, 2010).
In paragraphs 25-29 of the declaration, the coworker identified Complainant as someone who had also been sexually harassed by the supervisor, and identified several employees who were aware of Complainant's situation. Complainant, in turn, supported the coworker's case by submitting an unsworn, unsigned, and undated declaration, recalling her own harassing encounters with the same supervisor, including:
* In May 2008, the supervisor invited Complainant into his office and said, "Give me a kiss, to your Uncle."
* The supervisor began coming to Complainant's classes frequently, almost on a daily basis, to observe her.
* In June 2008, the supervisor found excuses to have Complainant come to his office. When she came, he always closed the office curtains, and asked her to tell him Iraqi jokes, which are generally sexual in nature.
* In June 2008, the supervisor asked her to go to a restaurant to "talk about the contract."
* In October 2008, the supervisor asked her how she felt about sex, and whether she had sex before marriage. He asked her if she had sex with women; if she did not have sex with men; and whether she had seen any sexual movies lately, especially about female-female relationships.
* In November 2008, the supervisor pinched her cheeks and kissed her forehead while they were waiting for students.
* In December 2008, the supervisor said, "One of my friends told me that Iraqi men like to do things from behind. . . . You haven't done this before? It's nice to try (having sex) with women to women, but with men to men it isn't so nice."
* In March 2009, the supervisor took her hand and tried to put it on his penis.
* In May 2009, the supervisor told her he could make sure her contract was renewed if she was "smooth" with him. If she was not "smooth" with him, he would kick her out.
Complainant's EEO complaint (Agency No. DOS-F-037-10)
Complainant contacted an EEO counselor, and according to the EEO counselor's report, she alleged that the male Arabic Language Training Supervisor sexually harassed her from May 2008 to the present, with the latest incident occurring on September 29, 2009, when the supervisor pushed her into a wall as she tried to pass him in a hall way.
She also alleged disparate treatment in limiting opportunities for trainings and text examinations, which in turn affected her performance evaluations and ultimately diminished the likelihood of contract renew. She explained that contract language instructors earn points in their performance evaluations when they attend training (particularly in the form of a week of emersion in another city with the students) and act as examiners during language tests. Although she was given some opportunities, Complainant maintained that similarly situated language instructors of other national origins were given more opportunities for trainings and test examinations, thereby diminishing the relative likelihood that her contract would be renewed.
On January 26, 2010, Complainant filed her own EEO complaint. The Agency defined her claims as whether she was discriminated against on the bases of national origin (Iraqi), sex (female), religion (Christian), and reprisal for prior protected EEO activity when:
1. She was denied the opportunity to attend training;
2. She was denied the opportunity to proctor student exams;
3. She was subjected to a hostile work environment, which included sexual comments and unwelcome touching.
Initially, the Agency dismissed the complaints of Complainant and her female coworker, because it found they were independent contractors and not employees of the Agency. But after review, the Commission found that Complainant and the coworker were Agency employees for purposes of the federal sector EEO complaint process, and remanded both complaints for further processing.1
Complainant's subsequent EEO complaint (Agency No. DOS-F-03-212)
On January 4, 2012, Complainant filed another EEO complaint, alleging discrimination on the bases of national origin (Iraqi), sex (female), religion (Christian), color, and reprisal when:
1. Her teaching contract was not renewed after August 5, 2011;
2. She was subjected to hostile work environment characterized by, but not limited to, name calling and sharing an office. Complainant specifically asserted that since her conversion to Christianity, she was taunted by her Iraqi colleagues, who called her a "peasant," a "prostitute," a "bitch," and a "daughter of a dog." Complainant asserted further that she had been told that she had "sold her religion" and had a shoe thrown at her. Complainant further asserted that she had been the victim of an unsolicited sexual overture by a colleague.
3. On September 23, 2011, she was not selected for a full time teaching position.
Initially, the Agency dismissed this complaint, on the grounds of untimely EEO counselor contact. Upon review, the Commission in EEOC Appeal No. 0120122132 (Oct. 19, 2012) found it appropriate to waive the applicable time limit because Complainant lacked knowledge of the EEO complaint process and remanded the complaint for further processing.
EEO Investigation
For claims 1 and 2 of the present complaint, the Agency's investigator obtained affidavits from management officials, who all averred that Complainant had attended some trainings and proctored some examinations. However, the investigator did not obtain any comparative evidence on the number of trainings and text examinations that similarly situated language instructors had attended. Nor were copies of performance evaluations obtained.
As for claim 3, the investigator received affidavits from Complainant, the alleged harasser, three other Agency management officials, Complainant's direct supervisor at ICA Language Services, and one of Complainant's male colleagues. In addition, the investigator included in the record a copy of the declaration Complainant previously submitted in support of the female coworker's sexual harassment complaint.
However, the investigator did not obtain any testimony or documentary evidence from the female coworker. In addition, the alleged harasser averred that he had addressed Complainant's harassment allegations in a September 2009 declaration that was part of the coworker's complaint file; however, that declaration was not included in the record for this case.
Final Agency Decision
After the Agency finished its investigation, it provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). There is no evidence in the record that Complainant proactively requested a hearing. The record only contains a typed document requesting a hearing with Complainant's typed name at the bottom. But it appears to have been prepared ahead of time because there are still blank spaces for a date and signature.
The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
For claims 1 and 2, the Agency found that the alleged denials of opportunities to train and proctor exams did not happen. The Agency credited the testimony of management officials, who averred that Complainant had received training and was offered the opportunity to participate in tester training.
In addition, the Agency noted that Complainant mentioned in her affidavit that the Agency "took" away her direct hire position. The Agency found that testimony to be irrelevant and concerned an issue that had not been accepted for investigation.
For claim 3, the Agency found no evidence that the harassing events occurred. The Agency reasoned that Complainant did not act in a way that would be expected of someone who was deeply offended by the way she was being treated. She waited over a year to contact an EEO counselor, when the harassment allegedly began just six weeks after Complainant began working at the Agency. "One would expect that Complainant would have reported events of such severity and frequency to someone of authority at [the Agency] . . . . This did not happen. No [Agency] supervisor recalls receiving any communication from Complainant about [the supervisor's] comportment." As for two witnesses who confirmed that Complainant had told them about the harassment, the Agency minimized this testimony by maintaining that the two witnesses "did not interpret these reports as being of great concern." Finally, the Agency found no evidence of changes in Complainant's performance, with Complainant consistently receiving excellent performance evaluations.
Instead, the Agency speculated that Complainant was motivated to file a complaint based on a belief that her contract would not be touched or terminated regardless of poor performance until her EEO case was resolved. This strategy would guarantee at least one year of contract renewal.
The Agency determined that there was simply "not enough objective evidence to support a finding against [the supervisor]. Allegations of harassment are extremely serious. As devastating as alleged actions of this type are to defenseless employees, supervisors who are found to have engaged in this activity are also damaged. In the absence of sufficient convincing evidence it would be unfair for us to make such a finding."2
CONTENTIONS ON APPEAL
Complainant did not submit a brief in support of her appeal.
ANALYSIS AND FINDINGS
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Adequacy of the Record
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
Claims 1 and 2: Training and Test Examinations
At the outset, we find that the Agency improperly defined and fragmented claims 1 and 2. The seemingly different incidents, not being able to attend as many trainings or test examinations as similarly situated language instructors, are in reality part of the same claim: management's unlawful discriminatory failure to advance Complainant's career and contract renewal.
The Agency focused its investigatory efforts on establishing that Complainant had attended some trainings and proctored some examinations, but that is not enough to comprise an adequate record. What is missing is comparative evidence showing the extent to which other similarly situated language instructors attended training and tested examinations, and an explanation for how such a disparity (if it exists) may negatively affect the Agency's evaluation of an instructor's performance and chances of contract renewal.
For these reasons, we find the record to be inadequately developed for this claim. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.
Claim 3: Harassment
Resolving a harassment claim often depends on the credibility of the parties. The investigator should question the complainant and the alleged harassers in detail. The investigation should also thoroughly search for corroborative evidence of any nature. Supervisory and managerial employees, as well as co-workers, should be asked about their knowledge of the alleged harassment. Persons with whom the complainant discussed the incident-such as co-workers, a doctor or a counselor-should be interviewed. Evidence that other employees were harassed by the same person would be persuasive evidence that the conduct occurred. See, e.g., Policy Guidance on Current Issues of Sexual Harassment, EEOC No. N-915-050 (Mar. 19, 1990)
Upon review, we find the record to be insufficiently developed for us to determine if the Agency subjected Complainant to hostile work environment harassment. First, the record is missing evidence that other employees were harassed by the same male Arabic Language Training Supervisor, most notably the female coworker who filed her own harassment complaint in EEOC Appeal No. 0120101859 (Aug. 18, 2010).
Second, neither Complainant nor the accused harasser gave detailed responses in their affidavits about the specific allegations of harassment raised in Complainant's declaration. Rather, it appears that both of them relied primarily on the declarations they submitted as part of the female coworker's case in discussing the harassing incidents. Complainant only briefly answered 4 questions in her affidavit relating to her harassment claim, leaving the other 20 or so questions blank. Meanwhile, the accused harasser averred under question 6 of his affidavit: "My Declaration (September 2009) included my responses to the questions about [Complainant] is with the CRO, the Department of State."
Third, the record is missing testimony from people who may have observed Complainant's demeanor immediately after an alleged incident of harassment, people with whom she discussed the incident, or people who may have noticed changes in Complainant's behavior at work or in the alleged harasser's treatment of Complainant. As noted above, the female coworker, in paragraphs 25 to 29 of her declaration, identified numerous colleagues who apparently were told about Complainant's harassing incidences. Most were not interviewed by the Agency investigator.
Furthermore, the investigator posed elementary questions to the two witnesses who had been told about Complainant's harassment: (1) whether he witnessed the harassment; (2) whether Complainant informed him about the harassment; (3) when and where did Complainant report it; and (4) what was the witness' response. The investigator did not ask these witnesses whether they had observed Complainant's demeanor immediately after an alleged incident of harassment, what her demeanor was like (appearance, mood, behavior, actions, tone of voice), and whether they noticed changes in Complainant's behavior at work or in the alleged harasser's treatment of Complainant. Nor were questions asked about any sort of office or cultural factors that may have inhibited Complainant from talking about her experiences to her coworkers or supervisors.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency subjected Complainant to conduct that was severe or pervasive enough to constitute hostile work environment harassment. The record is missing detailed sworn testimony from Complainant and the alleged harasser; evidence that other employees were sexually harassed by the same person; testimony from persons who observed Complainant's demeanor immediately after an alleged incident of harassment, as well as persons with whom she discussed the incident. Furthermore, the investigation failed to question these people about noticing changes in Complainant's behavior at work or in the alleged harasser's treatment of Complainant. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.
Consolidation of Complaints
Complainant may have two complaints pending before the Agency: the present complaint (Agency No. DOS-F-037-10) and Agency No. DOS-F-032-12.
EEOC regulation 29 C.F.R. � 1614.606 requires agencies to consolidate for joint processing two or more complaints of discrimination filed by the same complainant, after appropriate notification is provided to the parties. While it is anticipated that most consolidated complaints will be investigated together, in certain circumstances, consolidation does not preclude an agency from investigating each complaint separately. In all instances, however, where the complainant requests a final agency decision, the agency should issue a single decision. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 5, Section III, Part C (rev. Nov. 9, 1999).
Here, it appears that Complainant has two complaints of discrimination that may be related, in that both complaints allege hostile work environment harassment on shared bases and may explain why Complainant did not confide in her colleagues about her supervisor's harassment. Similarly, Complainant's non-renewal of her contract could be related to the alleged limited opportunities she received to train and proctor examinations.
CONCLUSION
Based on a thorough review of the record, we VACATE the Agency's final decision and REMAND Complainant's complaint, in accordance with the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. If the Agency is still processing Agency No. DOS-F-032-12 and has not yet issued a final decision, the Agency shall consolidate it with Agency No. DOS-F-037-10, and supplement the record, according to provision (2) below.
2. The Agency shall conduct a supplemental investigation to develop an adequate factual record, regarding Complainant's disparate treatment claim and hostile work environment harassment claim. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:
a. Comparative treatment evidence about the number of trainings and test examinations that other similarly situated language instructors attended, as well as copies of performance evaluations for these individuals, and whether their contracts were renewed.
b. Applicable personnel policies, past practices, testimony, and other evidence, explaining how the number of trainings and test examinations affected the Agency's evaluation of language instructors' performance each year and decision to renew their contracts.
c. A sworn affidavit and other relevant evidence from the female coworker who filed her own EEO complaint alleging sexual harassment against the same supervisor in Agency No. DOS-F-028-10. In addition, the Agency should gather any other relevant documentary or testimonial evidence that this supervisor had harassed others.
d. Sworn affidavits from all individuals who had knowledge about Complainant's harassment, particularly those identified by the female coworker in paragraphs 25-29 of her declaration in Agency No. DOS-F-028-10. The Agency should ask all these individuals whether they had observed Complainant's demeanor immediately after an alleged incident of harassment; what her demeanor was like in terms of her appearance, mood, behavior, actions, words, tone of voice; whether they noticed changes in her behavior at work or in the alleged harasser's treatment of Complainant. In addition, the Agency should ask whether there were any office of cultural barriers that may have inhibited Complainant from talking about her sexual harassment experiences with colleagues or supervisors.
e. Sworn affidavit testimony from Complainant detailing and elaborating on the specific incidents of harassment. The Agency should then obtain sworn affidavit testimony from the alleged harasser, responding to the specific individual incidents discussed by Complainant in her affidavit. In addition, the Agency should include copies of the September 2009 declaration the alleged harasser submitted in EEOC Appeal No. 0120101859, which purportedly addressed Complainant's allegations.
3. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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:
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 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
__5/16/14________________
Date
1 See EEOC Appeal No. 0520110069 (Apr. 26, 2012); EEOC Appeal No. 0120101859 (Aug. 18, 2010).
2 We remind the Agency that a complainant need not present "objective evidence" to prove harassment:
The Commission recognizes that sexual conduct may be private and unacknowledged, with no eyewitnesses. . . . Thus the resolution of a sexual harassment claim often depends on the credibility of the parties. . . . In appropriate cases, the Commission may make a finding of harassment based solely on the credibility of the victim's allegation. As with any other charge of discrimination, a victim's account must be sufficiently detailed and internally consistent so as to be plausible, and lack of corroborative evidence where such evidence logically should exist would undermine the allegation. By the same token, a general denial by the alleged harasser will carry little weight when it is contradicted by other evidence.
Policy Guidance on Current Issues of Sexual Harassment, EEOC No. N-915-050 (Mar. 19, 1990).
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0120132236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132236