Natalie F.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Mar 28, 2019

2019000779 (E.E.O.C. Mar. 28, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Natalie F.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 2019000779

Hearing No. 540-2016-00214X

Agency No. 63-2015-00269

DECISION

On November 5, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 2, 2018, final order concerning an equal employment opportunity (EEO) complaint
claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Bilingual Telephone Interviewer, GS-04, at
the Agency’s Contact Center in Tucson, Arizona.

On September 30, 2015, Complainant filed a formal complaint. Complainant claimed that the
Agency discriminated against her based on national origin (Hispanic/Mexican-American) and sex
(female) when:

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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1. On July 19, 2015, a male co-worker continuously stood up to stare
at Complainant’s legs, making her feel uncomfortable.

2. On July 19. 2015, the male co-worker complained to their
Supervisor, that he was uncomfortable with the way the
Complainant was sitting, or that she was sitting too close to him. He
further complained that the Complainant was talking to her office
neighbors.

3. On September 15, 2015, the male co-worker began cleaning a
cubicle behind the Complainant and repeatedly looked at her,
making her feel uncomfortable.

4. On September 15, 2015, a female co-worker advised the
Complainant that the previously referenced male co-worker may
have followed Complainant to the restroom.

5. On two other occasions, the male co-worker went to the employee
break room and made purchases from a snack machine, giving the
Complainant a “bad look” and making her feel uncomfortable.

6. Despite having reported the harassment by the Complainant's male
co-worker, management has taken no effective measures to prevent
his continued harassment of the Complainant.

After an investigation, the Agency 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).
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s April 25, 2018, motion for a decision without a hearing and issued a
decision by summary judgment in favor of the Agency on September 7, 2018. The Agency
subsequently issued a final order adopting the AJ’s finding of no discrimination.

The instant appeal followed. On appeal and through counsel, Complainant argued that the AJ did
not appreciate the severity and pervasive nature of the male coworker’s conduct. Complainant’s
counsel further stated that the Agency did not take corrective action against the male coworker
who harassed Complainant both because of the raised bases.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure.
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The U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but
rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences must
be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence
is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A
fact is "material" if it has the potential to affect the outcome of the case.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

The record reflects that the identified co-worker and Complainant had a history of exchanging
accusations. Their supervisors directed Complainant and the male coworker work in separate
areas. Complainant then reported this male coworker had continued to glare and make her
uncomfortable, and management stated that they verbally counselled him to avoid contact with
her. Complainant failed to support her contention that the Agency’s corrective actions were
ineffective or that the male coworker’s unwelcome conduct continued after management had
ordered him to stop.

We have considered Complainant’s appellate position concerning the male co-worker’s actions.
We agree with the AJ’s assessment of these claims. Moreover, we are not persuaded that either
this coworker’s actions or the Agency’s effort to discourage contact between them were actually
motivated by hostility towards Complainant’s raised bases. We agree with the AJ’s determination
that the preponderance of the evidence did not establish that Complainant was discriminated
against by the Agency as she had alleged.

CONCLUSION

Based on a thorough review of the entire record and all contentions on appeal, we AFFIRM the
Agency’s final decision adopting the AJ’s decision without a hearing, finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 28, 2019
Date