Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2012-3491-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120123491

Hearing No. 480-2011-00217X

Agency No. HS-CIS-01282-2010

DECISION
Complainant filed an appeal from the Agency’s August 8, 2012 Final Order 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
Order, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration
Service Officer at the Agency’s Citizenship and Immigration Services facility in Los Angeles,
California. On August 30, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of sex (female) when:

Beginning in 2003, Complainant was subjected to a sexually hostile work environment
due to the conduct of coworker, E1.

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 (AJ). Complainant requested a hearing and the
AJ held a hearing on April 9, and 10, 2012, and issued a decision on July 24, 2012.

In his Decision, the AJ found that Complainant found the attention of a coworker, beginning in
2003, to be unwelcome and that she felt subjected to harassment when the coworker, E1,
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engaged in such conduct as undressing Complainant with his eyes from head to toe, looking
into Complainant’s office when he walked by it, and sitting next to Complainant during a
social gathering. The AJ considered E1’s denial that Complainant told him his attention was
unwelcome. E1 denied harassing Complainant. The AJ found that Complainant did not prove
that more likely than not she was harassed as described by E1 beginning in 2003.

The AJ further found that Complainant did not present evidence that more likely than not, she
notified management in 2003, 2006, and 2010, as she claimed she did, that she felt E1’s
actions were harassment. The AJ found the evidence showed that Complainant complained to
management about the conduct of another employee, E21

, but not about E1.
The AJ considered that in May 2010, Complainant sought EEO counseling and complained that
she was being sexually harassed by E1. The AJ found that Complainant did not present
evidence that prior to that time, she complained to management about E1’s conduct.
Moreover, the AJ found that all of the incidents described by Complainant in her complaint,
from E1’s walking by her office, following her, whispering close to Complainant on one
occasion and other incidents were nothing more than a minor group of isolated incidents that
occurred over a period of seven years and did not rise to the level of harassment even if they
occurred as alleged. The AJ did not find Complainant’s testimony credible and noted that
Complainant’s claims that E1’s attention was unwelcome were inconsistent with Complainant’s
admitted actions that included giving a souvenir to E1 from El Salvador and a Christmas gift;
as well as providing him a ride home of some 20 miles and accepting a lunch invitation from
E1.

The AJ found that the conduct Complainant described in her complaint did not rise to the level
of harassment and even if it did, that Complainant did not show that she notified the Agency of
E1’s unwelcome conduct prior to the time she sought EEO counseling in May 2010. The only
incident that occurred after that date was when E1 inquired whether Complainant had applied
for a promotional position. The AJ concluded that Complainant failed to establish that she was
subjected to sexual harassment or harassment because of sex as alleged.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant states that the AJ erred in not allowing evidence regarding harassment
against Complainant by E2.

1 Complainant’s allegations against E2 are not part of the accepted claims of the instant
complaint. By order dated March 26, 2012, the AJ ruled Complainant’s claims against E2
were untimely raised. No evidence regarding Complainant’s claims against E2 was taken into
evidence at the hearing of the instant complaint.
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ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held. We find
no error in the AJ’s handling of the hearing.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
In order to establish a prima facie case of sexual harassment, a 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 Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc.

, EEOC Notice No. 915.002 (Mar. 8, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment.
The Court explained that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively
perceives it as such. Harris, supra

at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or inaction regarding a
specific term, condition or privilege of employment, a claim of harassment is actionable only
if, allegedly, the harassment to which the complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of the complainant's employment.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity Counselor within 45
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-
five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request
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No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.

As a preliminary matter, we find the AJ properly issued his order denying Complainant’s
request to introduce evidence regarding the conduct of E2, another employee that Complainant
claims sexually harassed her in 2006. We observe that by letter dated September 7, 2010, the
Agency notified Complainant of the acceptance of her claim of discrimination identified as
follows:

Between March and June 2010, [Complainant was] harassed by a supervisor, which
included him making improper comments to [her], disparaging [her] work performance,
and staring at [her] in an inappropriate manner.

Following the acceptance of Complainant’s complaint for investigation, Complainant
completed an affidavit, dated October 19, 2010, in which she identifies the supervisor as E1.
We find no mention of E2 in Complainant’s initial affidavit. We observe that Complainant
mentions another person only to say that she was sexually harassed by another unidentified
supervisor in 2006. We find, as did the AJ, that Complainant’s EEO contact in May 2010,
regarding harassment by E1 cannot be deemed to encompass the unrelated conduct of E2 in
2006, and that the AJ properly found Complainant’s allegations regarding E2 were untimely
raised. We find the AJ properly denied Complainant’s request to expand her claim of
harassment to include allegations that she was harassed by E2, pursuant to 29 C.F.R.
§1614.107(a)(2).

Additionally, we decline to find that the AJ’s decision to grant the Agency’s request for a
minor continuance from April 2, 2012 to April 9, 2012 for the commencement of the hearing
of Complainant’s complaint, indicated bias and an abuse of discretion. We find the AJ
properly exercised his discretion to grant a short continuance at the request of counsel who
experienced a personal circumstance adequately described and requested a continuance by an
appropriate motion.

In the instant case, we find substantial evidence supports the AJ’s Decision. Specifically, we
concur with the AJ that the handful of incidents described in Complainant’s complaint, wherein
Complainant was subjected to unwelcome attention from E1, were neither severe or so
frequent as to rise to the level of a hostile work environment. We find, as did the AJ, that E1
and Complainant were coworkers and that at times, Complainant and E1 interacted as
coworkers and that the evidence indicates Complainant was not consistently uncomfortable
with E1 over the time they worked together. For instance, we find that Complainant offered
E1, on one occasion, a ride home even though that courtesy involved an extended period of
time spent alone in her car with him. Significantly, we find the evidence supports the AJ’s
determination that Complainant did not notify Agency management that she felt she was being
harassed by E1 and accordingly, we find no basis to impute liability to the Agency even if
Complainant had described conduct that rose to the level of harassment.
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We further decline to disturb the AJ’s finding that between Complainant and E1,
Complainant’s hearing testimony was less credible than that presented by E1. We find
substantial evidence supports the AJ’s conclusion that Complainant did not present evidence
that more likely than not she was subjected to sexual harassment or harassment because of sex
as alleged in her complaint.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

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).
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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

(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 22, 2015