0120122827
09-09-2014
Complainant v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122827
Hearing No. 420-2011-00067X
Agency No. ARANAD-10MAY-02050
DECISION
Complainant timely filed an appeal from the Agency's March 13, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether substantial evidence supports the EEOC Administrative Judge's (AJ) conclusion that Complainant failed to prove that the Agency subjected her to sexual harassment and was liable for the harassment, and whether substantial evidence supports the AJ's conclusion that Complainant failed to prove that she was subjected to reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a WG-7 Sandblaster in the Agency's Painting, Cleaning, and Stripping Division at the Anniston, Alabama Army Depot. Pursuant to the terms of a settlement agreement, Complainant was assigned to work in Building 433.
On June 11, 2010, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to harassment on the basis of sex (female) when, on April 5, 2010, a coworker (C1) showed her his erection and made inappropriate comments toward her. Complainant also alleged that the Agency subjected her to reprisal when it denied her request to move to another building.
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 AJ. Complainant timely requested a hearing, and the AJ held a hearing on September 27 and October 4, 2011.
At the hearing, Complainant testified that, on April 5, 2010, C1 told her that he had become aroused while working with her and placed his hands on both sides of his coveralls to display his erection. Complainant further testified that C1 asked to see her tattoo. Complainant stated that C1's comments were unwelcome, and she asked him to stop. Complainant also testified that, shortly after C1 made these comments, he closed and locked the door to the sandblast booth, which made her uncomfortable.
C1 testified that, on April 6, 2010, a female coworker (C2) informed him that Complainant had told her that he showed her the impression of his penis through his coveralls. C1 denied Complainant's allegations and said that Complainant never told him that he was engaging in any type of behavior that made her feel uncomfortable. C1 also testified that he was not even speaking to Complainant at the time of the alleged incident. C1 further testified that, on the same day that C2 told him about Complainant's allegations, he reported Complainant's allegations to the Industrial Equipment Leader (Lead). C1 testified that on the next morning he reported to work, management informed him that he would no longer work in Building 433, and he was immediately reassigned to Building 409. C1 also testified that he has not worked with Complainant since that day, although he was ultimately returned to Building 433 with orders to avoid Complainant "at all costs." Hearing Transcript (HT), p. 232. He testified that he cannot be in the building while Complainant is working, and he works a different shift than Complainant.
The Lead (male) testified that, after C1 reported Complainant's allegations, he reported the claims to Building 433 Supervisor (S1) on April 8, 2010. S1 (male) testified that he reported the allegations to his supervisor, the Division Chief (the Chief).
The Chief (male) testified that, after S1 reported the allegations to him on April 8, 2010, he reported the claim to the EEO Office and legal officials, met with the Leader, interviewed C2, and asked C2 to submit a written statement. The Chief further testified that he then interviewed Complainant. The Chief testified that he immediately moved C1 to Building 409, and C1 has not worked with Complainant since the allegations were reported to him. The Chief also testified that he interviewed C1, who denied the allegations from the very start. Additionally, the Chief testified that he asked S1 to obtain statements from all employees in the blasting area to see if any of them had any additional information about the allegations; a Depot investigator conducted the investigation.
The Chief further testified that C1 was moved instead of Complainant because Agency policy mandates that the accused be moved, not the alleged victim. He stated that he could not move Complainant anywhere else because a previous settlement agreement provided that she must work in Building 433 and on first shift. The Chief testified that working in Building 114 was the only other option, but it would have been inappropriate to assign Complainant to that building because her husband worked in Building 114. He stated that there no other options for Sandblasters. The Chief testified that Complainant has not worked with C1 since the day of the alleged incident.
AJ's Decision
The AJ issued a decision on February 29, 2012. In her decision, the AJ initially determined that she was "not convinced that everything about which [C]omplainant complains actually occurred as she says it did." AJ's Decision, p. 12. The AJ noted that the accused coworker (C1) denied Complainant's allegations and reported the matter to management before Complainant reported it. The AJ found that, even if the events occurred as described by Complainant, the conduct was insufficiently severe or pervasive to establish a hostile work environment. Additionally, the AJ found that, even if the conduct at issue were severe or pervasive enough to constitute a hostile work environment, the Agency was not liable for the harassment because the evidence established that management immediately investigated the matter and moved C1 to another building. The AJ noted that C1 has not worked with Complainant since the incident was reported to management.
Regarding Complainant's reprisal claim, the AJ found that Complainant did not establish a prima facie case of reprisal because there was no adverse action in this case, and there was no casual connection between Complainant's previous EEO activity and the instant matter. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the AJ erred when she found that the alleged harassment was not severe or pervasive enough to constitute a hostile work environment. Complainant argues that C1's conduct was a sexual proposition that was humiliating, intimidating, and threatening, and had the effect of interfering with her job performance. Complainant further argues that the Agency should be liable for the harassment because it inadequately trained employees on sexual harassment issues. Complainant also argues that the AJ also erred when she found that Complainant had not established a prima facie case of reprisal. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
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. 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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Sexual Harassment/Hostile Work Environment
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 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 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).
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 be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).
For purposes of analysis, and without so finding, we assume that Complainant established the first four prongs of the harassment analysis. Consequently, our analysis focuses on whether the Agency is liable for the alleged harassment.
In this case, the evidence reflects that management learned of the alleged harassment when the alleged harasser (C1) reported the alleged harassment to a supervisor. The alleged harasser is Complainant's coworker, not Complainant's supervisor. The record further reflects that the Agency immediately moved C1 to another building and conducted an official investigation of the allegations. Further, the record reveals that C1 was directed to never have any contact with Complainant, moved to another shift to avoid contact with Complainant, and has not encountered Complainant since the alleged harassing incident on April 5, 2010. We find that substantial evidence supports the AJ's finding that the Agency took immediate and appropriate corrective action after it learned about the alleged harassment. Consequently, we find that the AJ properly found that the Agency is not liable for the alleged harassment.
Reprisal
Complainant contends that the Agency retaliated against her because of her previous EEO activity when it denied her request to be reassigned to another building. Generally, such claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to 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 her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In this case, we assume for purposes of analysis, without so finding, that Complainant established a prima facie case of reprisal. Nevertheless, we find that the Agency provided legitimate, non-discriminatory explanations for its actions. Specifically, the Chief testified that the Agency denied Complainant's request to move to another building because Complainant's settlement agreement provided that she must work in Building 433 and on first shift. The Chief testified that working in Building 114 was the only other option, but it would have been inappropriate to assign Complainant to that building because her husband worked in Building 114. The Chief also noted that it moved C1 to Building 409 instead of moving Complainant because it is the Agency's policy to move accused harassers instead of alleged victims. The Chief noted that Complainant could only work in a few places because of her job duties as a Sandblaster.
We find that Complainant has not proved that the Agency's explanation is a pretext for unlawful discrimination. Therefore, we find that substantial evidence supports the AJ's conclusion that Complainant has not proved that she was subjected to reprisal.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this 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.
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
September 9, 2014
Date
2
0120122827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122827