Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 14, 2015

01-2015-1039-0500 (E.E.O.C. Jul. 14, 2015)

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

,
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120151039

Agency No. 9V1M12046

DECISION
On January 26, 2015, Complainant filed an appeal from the Agency’s January 5, 2015 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Equipment
Cleaner Leader at the Agency’s Tinker Air Force Base in Oklahoma City, Oklahoma. On
January 24, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female) and age (60) when she witnessed sexual contact
between two coworkers.

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 Opportunity
Employment Commission Administrative Judge. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

0120151039

2

ANALYSIS AND FINDINGS
To establish a claim of harassment Complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee

, 682
F.2d 897 (11th Cir. 1982).
In the instant case, it is alleged that Complainant was providing computer training to a new
employee (E1) on October 12, 2011, when her task was interrupted by a visit from a coworker
(E2) with whom E1 had a romantic relationship. As E1 and E2 worked together to resolve
some trouble logging on to the computer Complainant became uncomfortable with their
displays of affection, including “French Kissing.” Complainant directed E2 to leave the area,
and he complied. As E2 left he made a comment about Complainant’s age and the fact that she
was single. Complainant alleged that this incident subjected her to hostile workplace
harassment.

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. Burlington Indus., Inc.,
v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 1 In
the case of co-worker harassment, 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 by a preponderance of the evidence that it took immediate and appropriate
corrective action. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors

, EEOC Notice No. 915.002 (June 18, 1999).
Assuming for the sake of argument only that Complainant established elements (1) – (4) above,
Complainant promptly raised the issue with her superior (S1). The record shows that S1 took
immediate and appropriate steps to correct the situation. Both E1 and E2 were counseled by
their respective superiors on appropriate workplace behavior, and E2 agreed not to make social
visits to E1 at Complainant’s area of the base. Subsequent to that agreement, E2 returned
twice for business and was once accompanied by a supervisor for a social visit to an employee
other than E1. Complainant does not allege that she was again subjected to any inappropriate
conduct or comments. The Agency’s response was thus reasonable and effective, relieving the
Agency of liability for the alleged harassment.

1 Here, while E2 is referred to as a “supervisor” in the record, he had no supervisory authority
over Complainant, and is therefore a co-worker for purposes of our analysis.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s decision.

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

(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

(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

Date
July 14, 2015