0120132209
11-12-2015
Ebony M.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ebony M.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120132209
Agency No. HS-TSA-22877-2012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 26, 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. For the reasons stated below, we AFFIRM the Agency's final decision (FAD).
ISSUES PRESENTED
The issues presented in this case are whether Complainant established that the Agency should be held liable for the harassment that she was subjected to; and whether she was discriminated against when she was terminated from her position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (LTSO), F-Band at the Agency's Springfield/Bronson National Airport in Springfield, Missouri. After failing three successive Standard Operating Procedure Assessment tests (SOPA), Complainant received a Notice of Removal on July 20, 2012. On July 27, 2012, Complainant initiated EEO Counselor contact and alleged she had been sexually harassed by a Supervisory TSO (S1). On July 28, 2012, Complainant informed a secondary supervisor (S2) that S1 had sexually harassed her for three years. S2 informed the Assistant Federal Security Director (AFSD) and the AFSD reported Complainant's allegation to the Agency's Sexual Harassment Prevention Coordinator. Management immediately separated S1 from Complainant; an investigation regarding the allegations was also initiated. On July 30, 2012, the AGSD contacted the Office of Investigations (OI) and reported Complainant's allegations. From July 30 through November 23, 2012, OI investigated Complainant's allegations.
On September 12, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (female) when:
1. On unspecified dates, S1 repeatedly made sexual advances towards her;
2. On unspecified dates, S1 grabbed her breasts;
3. On unspecified dates, S1 repeatedly grabbed her groin;
4. On unspecified dates, S1 repeatedly told her to take off her pants;
5. On unspecified dates, S1 sent numerous inappropriate texts to her, including a photograph of his genitalia;
6. On an unspecified date, S1 told Complainant "I'll take both you and your daughter at the same time;"
7. On an unspecified date, S1 told her that if she did not take her pants off, that she would not pass her Standard Operating Procedure Assessment (SOPA) test;
8. On an unspecified date, S1 told her "keep your mouth shut;" and
9. On unspecified dates, while she was attempting to study or practice for her SOPA test, S1 would grab her and make it impossible for her to study or practice.
Complainant also alleged that the Agency discriminated against her and subjected her to harassment on the basis of sex (female), and sexually harassed her when:
10. On July 20, 2012, she received a Notice of Proposed Removal.
On October 1, 2012, the AFSD suspended S1 without pay until the completion of the investigation. On November 6, 2012, a second AFSD (AFSD 2) issued Complainant a Notice of Decision on Proposed Removal (Decision), wherein AFSD 2 informed Complainant that her employment was terminated for failure to maintain certification. On November 30, 2013, OI submitted the Report of Investigation which concluded that S1 engaged in inappropriate touching and texting with Complainant and other female employees. The report contained S1's admission that he touched, kissed, and texted Complainant, and he also admitted that he touched other female employees.
Following the Agency's investigation of Complainant's claims of discrimination and harassment, Complainant requested a FAD. With regard to Complainant's disparate treatment claim, claim 10, the FAD found that the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant's employment. Specifically, Complainant was removed because she failed to pass the SOPA examination on three separate occasions. Management explained that the Agency's regulations provided that failure of the SOPA may result in termination. Although Complainant alleged that S1's sexual harassment motivated management to issue her the Notice, management indicated that Complainant failed to produce any evidence that management was aware of the harassment when it issued her the Notice of Proposed Removal on July 20, 2012. Management maintained that it did not learn of the harassment until July 28, 2012, when she first reported it to S2.
Moreover, management maintained that Complainant did not produce any evidence that she passed the SOPA, or that S1 had any involvement with the administration of the SOPA or the evaluation of Complainant's performance. Likewise, the Agency found no evidence that discriminatory animus or S1's conduct motivated any other member of management to issue failing scores to Complainant. The Agency also noted that Complainant did not show that S1 was present in her vicinity while she was studying for the SOPA because they had very limited contact during this time. Finally, the Agency maintained that Complainant failed to show that the Agency's reasons were pretext for discrimination.
With respect to Complainant's harassment claim, the FAD found that she failed to show that she was subjected to conduct for which the Agency should be held liable. The FAD indicated that while the IO investigation showed that S1 did sexually harassed Complainant, the record demonstrated that the Agency took prompt and effective action to address and correct S1's behavior as soon as it was made aware of the conduct. The FAD found that Complainant did not present a reason for imputing liability to the Agency as management utilized the Agency's guidance to address Complainant's sexual harassment allegations. The Agency indicated that upon receipt of Complainant's allegation of sexual harassment, management responded immediately by reporting the allegation to AFSD, by conducting an investigation, by separating S1 from Complainant, by suspending S1 indefinitely without pay, and by suggesting termination of S1's employment. Accordingly, management maintained that it took prompt, effective and appropriate action to address Complainant's allegations, and to prevent future acts of sexual harassment by S1. Based upon the evidence, the FAD found that Complainant did not establish her discrimination claims.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was sexually harassed so severely that she was unable to adequately study for her test and therefore she was unsuccessful on all three occasions.
In response, the Agency contends that Complainant was issued the July 20, 2012, Notice of Proposed Removal because she failed the SOPA three (3) times. The Agency maintains that Complainant does not dispute that she failed the test three times. Nor does she dispute that she was provided remediation and given opportunities to study for the retest. Complainant also does not dispute, the Agency maintains, that its 2012 guidance called for removal of employees unable to qualify on a technical proficiency after three attempts.
Further, while Complainant argues that S1's conduct was so severe and pervasive in early July 2012 that she was incapable of studying for, and, passing the SOPA; the Agency points to evidence indicating that Complainant and S1 only worked together 2 days in July - and did not work together at all during the period in which she took and failed the three SOPA exams. The Agency maintains that proposing Complainant's removal and subsequently removing her for her inability to demonstrate the necessary competencies for a LTSO was not a pretext for discrimination.
Finally, with respect to Complainant's harassment claim, the Agency asserts that Complainant did not establish that there was a reason for imputing liability to the employer. As discussed in the FAD, upon learning of Complainant's allegation, the Agency took prompt and effective action to address and correct S1's behavior, and that Complainant unreasonably did not take advantage of preventive or corrective opportunities provided by the Agency. Thus, according to the Agency, there is no basis for imputing liability to it and Complainant's allegation of discriminatory harassment fails.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
With respect to Complainant's disparate treatment claim, claim 10, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that although she was given three (3) opportunities, Complainant was terminated from her position because she did not pass the SOPA. We find that Complainant failed to provide any evidence which suggests that the Agency's reasons were pretext for discrimination. In this regard, we note that the Agency demonstrated that the Notice of Proposed Removal was issued before Complainant made the Agency aware that she had been subjected to sexual harassment by S1.
Next, we address Complainant's claim of sexual harassment. It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of 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 McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982)).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee.
For purposes of this decision, we will assume that Complainant established elements (1) - (4). The issue therefore is whether she also established element (5). Like the Agency, we find that she did not. At the outset, we find that there is no persuasive evidence in the record that establishes a nexus between Complainant's removal and the conduct that she was subjected to by S1. As noted above, Complainant's removal was based on her not passing the SOPA on three separate occasions. The evidence however, shows that Complainant and S1 only worked together 2 days in July - and did not work together at all during the period in which she took and failed the three SOPA tests. Likewise, there is no evidence that S1 had any involvement with the administration of the SOPA or the evaluation of Complainant's performance. Accordingly, we do not find that S1's conduct resulted in a tangible employment action. Therefore, the Agency can raise an affirmative defense in this case.
The Agency maintains that it should avoid liability here because (1) it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) Complainant unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided. We agree with the Agency's position. Here, it is undisputed that the Agency had a policy against sexual harassment, provided training to its employees, and communicated to all employees, including Complainant, the ways to report such conduct. Although she received formal training regarding the EEO process four times during her tenure with the Agency, Complainant failed to take advantage of these preventative measures. She did not notify anyone of S1's conduct until after she was notified that her removal was being proposed. Further, as described above, the Agency took immediate action upon learning of Complainant's allegations of sexual harassment to prevent any subsequent acts. The Agency separated Complainant and S1, started an investigation, suspended S1 without pay and subsequently terminated S1 for his actions.
Further, with respect to Complainant's contention on appeal that she failed the SOPA examinations because of the stress that she was under as a result of S1's harassment, we clearly sympathize with Complainant, but simply find no support for this contention in the record. As indicated above, Complainant did not show that S1 was present in her vicinity while she was studying for the SOPA because they had very limited contact during this time, and did not work together at all during the period in which she took and failed the three SOPA tests. Accordingly, we find that the preponderance of the evidence of record does not establish that discrimination occurred with regard to Complainant's removal or that the Agency should be held liable for S1's actions.
The Agency's FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________'s signature
Carlton M. Hadden, Director
Office of Federal Operations
_11/12/15_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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