Cheryll K.,1 Complainant,v.Patrick M. Shanahan, Acting Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Apr 23, 2019

0120170700 (E.E.O.C. Apr. 23, 2019)

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

Cheryll K.,1
Complainant,

v.

Patrick M. Shanahan,
Acting Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120170700
Agency No. DLAN-15-0273

DECISION

On December 23, 2016, 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
November 10, 2016, final decision, received on November 28, 2016, 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 following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency’s final agency decision (FAD) erred in finding that
Complainant did not establish that she was subjected to sexual harassment or discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Distribution Process
Worker, WG-05, at the Agency’s Distribution-Susquehanna (DDSP) facility in New Cumberland,
Pennsylvania. On August 26, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color (Brown),
and reprisal for prior protected EEO activity 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. She was subjected to sexual harassment and a hostile work environment when from
July 2013 to July 2015, a co-worker (L-1) poured water on her shirt, made sexual
and flirtatious comments and requests, questioned her about her dating situation,
and posted sexually offensive comments on her Facebook page;

2. She was subjected to disparate treatment on the bases of race and color when:

a. In July 2015, she informed her chain of management that she was being
sexually harassed and they failed to take immediate and appropriate action;

b. On September 8, 2015, she learned that her hardship shift change was not being
extended; and,

c. On September 19, 2015, when working overtime, she had to work near the
alleged sexual harasser.

3. She was retaliated against, on October 13, 2015, when she was called into a meeting
with her supervisor and union representative and was told that an investigation into
the workplace injury she suffered on October 8th had begun, and she was told that
she could be disciplined for not asking for assistance before she lifted a heavy item.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. In accordance with Complainant’s request, 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.

Specifically, the FAD found that Complainant did not establish that she was subjected to sexual
harassment or that the conduct was unwelcome. The Agency found that Complainant could not
sufficiently establish that the alleged behavior occurred. The FAD also found that even assuming
the behavior had occurred, there was no reason to impute liability to the Agency because as soon
as Complainant made the allegations known to management, she moved to another shift and had
no further contact with the alleged harasser. Also, the Agency maintained that Complainant did
not establish she was subjected to discrimination on the bases of race, color, or reprisal for prior
EEO activity with respect to her other allegations.

Complainant indicated that the first incident of harassment occurred in 2013, when she and a few
coworkers, including L-1, were playfully putting ice down each other’s shirts. Complainant
maintained that L-1 took it too far and poured water on her shirt which caused it to be see through.
Thereafter, Complainant indicated that L-1 began flirting with her and pursuing her on a regular
basis, including saying things like, “nice ass,” and “walk in front so I can watch your ass.” Also,
she maintained that, L-1 posted inappropriate sexual comments on her Facebook page.
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She stated that he constantly harassed her about who she was dating and saying things like “you
should be with me instead.” Complainant stated that she was afraid to object too harshly or say
anything to management because he was the “Lead.” Complainant stated that she did ask him to
stop on several occasions, but the behavior continued.

On May 29, 2015, Complainant made her first complaint to management regarding L-1’s behavior
being sexual harassment. One of the managers, A1, was instructed to perform an inquiry into the
matter. Five weeks later when Complainant had not heard anything from management, she, on
July 7, 2015, raised her concerns on “the Commander’s Hotline.” Thereafter, on August 5, 2015,
a Chief Warrant Officer (CWO) was appointed to conduct a 15-6 investigation into the matter. The
CWO concluded that L-1 did use inappropriate and unprofessional language in the workplace with
respect to his interaction with Complainant. Additionally, the CWO indicated that a series of
instant messages (IMs) sent to Complainant provided “reasonable evidence that he did pursue her
on a personal level.”

The Agency found that the record evidence did not support Complainant’s assertions that she was
subjected to unwelcome offensive conduct based on her sex. Complainant herself characterized
the ice/water incident as “horse play” by all involved. Regarding, the other incidents, i.e.,
allegations of sexual and flirtatious comments and requests, questioning her about her dating
situation; and posting sexually suggestive comments on her Facebook page, the record lacked
sufficient evidence to show that these events actually occurred. For example, regarding the
comments L-1 allegedly made on her Facebook page, Complainant did not provide this evidence
to the investigator, and regarding the alleged sexual and flirtatious verbal comments and request,
there were no witnesses to corroborate that it took place.

Finally, with respect the IMs that L-1 sent Complainant, which she described as sexual and
flirtatious comments and requests, and questions about her dating situation, the CWO’s report
found that they appeared to show occasional, friendly chatting between Complainant and L-1. The
CWO found that the IMs did not reveal any egregious or sexually provocative statements from L-
1. Some of the exchanges were about personal matters, e.g., children, and their living situations,
etc. There was one statement, however, from which the CWO found that it could be implied that
L-1 was interested in Complainant on a personal level. Although Complainant’s August 2014
response did indicate that she was not interested in a personal relationship, the Agency noted that
it was because of her current situation, not because she found L-1’s conduct offensive. In this
regard, the Agency noted that Complainant, in response to the IM from L-1 cited above, began her
reply with “it sounds good, but ....” Based on the openness of her exchanges, particularly
Complainant freely sharing personal information, the Agency concluded that it was it is doubtful
L-1 was aware his behavior was seen as offensive, and that Complainant felt harassed. The CWO’s
report, among other things, found no evidence that Complainant ever objected to L-1’s advances.

Throughout the investigations, L-1 has denied every allegation except for the water/ice incident.

During the period of the investigation, as a result of a hardship request by Complainant to care for
her ill mother, she was allowed to work a different shift.
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Therefore, for a few months after she reported the incidents, she had no interaction with L-1. In
September 2015, while volunteering to work overtime, she worked in the same vicinity as L-1 but
reported no additional harassment.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that in the past she has been the victim of
sexual and physical abuse by those she knew and trusted. She maintains that her job/work site was
her sanctuary until L-1 began repeatedly sexually harassing her. Complainant maintains that L-1
was aware of the problems she was having with the father of her children and her mother’s illness
and she believes he used that to his advantage. She also maintains that coworkers noticed L-1’s
behavior towards her and encouraged her to report it. Complainant also notes the pain and isolation
that she experienced because of L-1’s actions.

The Agency did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Standard of Review

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 Chapter 9,
§ VI.A. (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”).

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, a complainant must prove, by a preponderance of the
evidence, the existence of five elements: (1) that they are a member of a statutorily protected class;
(2) that they were subjected to unwelcome conduct related to their sex; (3) that the conduct
complained of was based on their sex; (4) that the conduct had the purpose or effect of
unreasonably interfering with their 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 (Aug. 5, 1999) (citing Hanson v.
City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982).

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An agency is liable for harassment by a co-worker or other non-supervisor when it “knows or
should have known of the conduct, unless the agency can show that it took immediate and
appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the agency’s action is
appropriate depends upon “the severity and persistence of the harassment and the effectiveness of
any initial remedial steps.” Taylor v. Pep’t. of the Air Force, EEOC Appeal No. 05920194 (July
8, 1992). The appropriateness of the agency’s conduct in response to harassment depends upon
“the particular facts of the case-the severity and persistence of the harassment, and the
effectiveness of any initial remedial steps.” Owens v. Dep’t of Transportation, EEOC Appeal No.
05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated
to stop the harassment. When an employer becomes aware of alleged harassment, the employer
has the duty to investigate such charges promptly and thoroughly. See Rodriguez v. Department
of Veterans Affairs, EEOC Appeal No. 01953850 (August 29, 1996).

We find that Complainant has not established a claim of harassment. Based on the totality of the
record, we cannot find that Complainant established element 2, i.e., that she was subjected to
unwelcome conduct related to their sex. By her own admission, the incident involving the ice and
water was mutual “horseplay” involving L-1 and other employees. Moreover, there was no
objective evidence that the other incidents even occurred as alleged. Although Complainant and
L-1 clearly exchanged IMs with each other there was no indication of any egregious or sexually
provocative statements from L-1. We also note that although Complainant informed L-1 that she
was not interested in a personal relationship in August 2014, she did not contact management until
May 29, 2015, about his behavior.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

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Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, that Complainant
established a prima facie claim of discrimination as to all of her bases, the Agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, with regard to claim no. 2(b),
Complainant was moved to the third shift in response to her hardship request due to family
concerns. Although her request to extend her hardship transfer to third shift was initially not
approved, there is no dispute that it was subsequently approved, and she was allowed to remain on
third shift.

With respect to claim no. 2(c), the Agency’s investigation did not show that Complainant was
subjected to sexual harassment by L-1; therefore, it was appropriate for L-1 to work overtime in
the same vicinity as Complainant. Furthermore, there is no evidence that L-1 acted inappropriately
while working overtime.

With regard to claim no. 3, where Complainant maintains that she was called into a meeting to
discuss an investigation into the workplace injury she suffered on October 8th, the Agency asserted
that Complainant was simply reminded to follow safety protocols, and the consequences for not
doing so. We find that Complainant has not shown that discriminatory animus based on her prior
EEO activity was involved or that the Agency’s reasons were pretext for discrimination.

Finally, with respect to claim no. 2(a), we find no persuasive evidence that Complainant’s race or
color play any role in the Agency’s investigation of her allegations. We do not, however, agree
with the Agency’s assertion that it took immediate and effective action to remedy this matter.
Complainant first raised her allegations in May 2015 to management, but no action appears to have
been taken until she contacted higher authorities in July, due to inaction by her managers.
Although A1 was instructed to conduct an inquiry, he did not do so. Management instead waited
for the CWO to conduct his investigation, which did not start until August. Because Complainant
requested an unrelated transfer to third shift, she and L1 were separated, but this cannot be
attributed to management action. On the contrary, Complainant’s hardship transfer to third shift
appears to have contributed to a lack of urgency on the part of Complainant’s managers. We
strongly advise the Agency to emphasize to its managers the importance of taking prompt and
effective action in addressing harassment allegations.

CONCLUSION

Accordingly, we AFFIRM the FAD’s ultimate conclusions that Complainant did not establish
discrimination or harassment.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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

April 23, 2019
Date