Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120114181 (E.E.O.C. May. 22, 2013)

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

Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120114181

Agency No. ARS201100247

DECISION

On September 12, 2011, Complainant filed an appeal from the Agency’s September 1, 2011
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. The Commission deems the appeal timely and accepts
it 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 Office
Automation Assistant, GS-326-5, at the Plum Island Animal Disease Center located near
Orient Point, New York. On February 11, 2011, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal
for prior protected EEO activity when: (1) beginning in September 2010 and continuing, a
male coworker (CW) repeatedly harassed her by making unwelcome sexual advances1

1 Complainant’s reprisal claim does not pertain to Claim 1.
; (2) on
various dates, including October 23, 2010, she complained about the harassment, but instead
of addressing her concerns, her supervisor belittled the situation and blamed her for not
resolving it herself; (3) on various dates, including December 7 and December 13, 2010, after
learning that she had complained about the harassment to a local law enforcement official, her
supervisors retaliated against her by: (a) threatening her with insubordination; (b) presenting
her with a performance appraisal without notice during a meeting about the harassment; (c)
daring her to file an EEO complaint; (d) cutting off communication with her; and (4) on or
about February 15, 2011, her supervisor charged her Absent Without Official Leave (AWOL)
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and threatened her with future charges after she left work and refused to return because of the
ongoing harassment.

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 EEOC
Administrative Judge (AJ). 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.

PROCEDURAL DISMISSAL

The Agency concluded that Complainant's allegation that she was subjected to retaliation after
complaining to a security official about CW's behavior failed to state a claim of reprisal
because the involvement of a security official is not “protected EEO activity” under Title VII.
We disagree with the Agency’s assessment and find the dismissal improper. The anti-retaliation
provisions of Title VII make it unlawful to discriminate against an individual because she has
opposed any practice made unlawful under Title VII. A complaint or protest about alleged
sexual harassment to a police officer constitutes protected EEO “opposition.” See Ihrcke v.
U.S. Postal Serv., EEOC Appeal No. 01892686 (Sept. 15, 1989); See also, EEOC
Compliance Manual Section 8, “Retaliation;” No. 915.003, (May 20, 1998).

COMPLAINANT’S ASSERTIONS

Complainant asserts the following2

:
On or about October 23, 2010, Complainant contacted her supervisor (S1) (female) at home to
inform her that she was being sexually harassed by CW. Complainant described numerous
incidents where CW seemingly contrived occasions to interact with her. Complainant
specifically informed S1 that CW was making inappropriate statements to her and that his
mannerism towards her “creep[ed] her out.” Complainant also informed S1 that CW's
“creepy behavior” and inappropriate statements started shortly after he became employed in
September 2010. For example, within the first week of his employment, CW approached
Complainant’s desk and asked her where she lived, if she went out to restaurants in her town
and related “small talk.” CW suggested that she visit a particular restaurant and provided
Complainant with the directions to the restaurant. Every interaction thereafter caused
Complainant to have “creepy feelings” and high anxiety. Within two weeks after CW came
onboard, he came up behind Complainant at the coffee station and asked her what she was
doing that weekend, how many kids did she have and proceeded to fish around to see if she
had a husband.

2 We note that the Agency generally disputes Complainant’s version pertaining to when and
what she told her supervisors and how they responded to her complaints. We also note that
CW disputes that his conduct was in any way harassing or motivated by any sexual interest in
Complainant.
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On another occasion on October 19, 2010, CW sent Complainant an email informing her that
if he didn't enter his time and attendance correctly in the system she could “smack him around
until he gets it right.” On October 20, 2010, while she was standing in line waiting to
disembark the Plum Island ferry boat, CW came up close behind her and said in a low, quiet
voice “Good Morning Susanne."3

On October 29, 2010, CW sent Complainant a fictional
procurement request. In the subject line he asked her to order him a “2 x 4” so that he could
"knock on wood," or "beat his head against a portable wall, or as a last resort use it as a
customer support re-education tool.” Complainant did not respond to the email. Later that
afternoon, CW attempted to get Complainant’s attention by asking her if she had ordered the
aforementioned “2 x 4.”
On one occasion as Complainant walked past CW's desk, he abruptly leaned back in his chair
and asked her if she changed her hair color.4

In addition, CW often tried to talk to
Complainant in the parking lot when she is attempting to catch the ferry in the morning. He
would do things like slow down so that she would catch up to him or speed up to catch up to
her. CW would ask her multiple questions in order to get her to engage in conversation with
him (e.g., CW asked Complainant about how fast her car is and about its gas mileage). In
addition, CW was constantly sending Complainant emails at work and then immediately
running over to her work station to see if she received them. CW would make up excuses to
come to Complainant’s desk. For instance, just before Thanksgiving as she was about to leave
and catch the ferry, CW approached her desk while her back was turned toward him. CW
then asked Complainant what she was doing “Wednesday.” Complainant did not respond.
CW then restated his question and asked Complainant what she was doing the “Wednesday
before Thanksgiving.” CW then stated that his friend was opening up his own bar that night
and he wanted to see if she wanted to go. Despite showing no interest, CW gave Complainant
detailed directions on how to get there and informed her that he was asking everyone from
Connecticut. He then proceeded to tell her all about how it was his friend from high school
who owned the bar. A few days later he approached her desk under the guise of borrowing a
pen. He then abruptly said, "Didn't I ask you out on Wednesday" and "well, are you going?"
Another example of CW’s constant attempts to interact with Complainant was the day
Complainant wore a shirt that had "YALE" written on the front. On that day, CW came past
Complainant’s desk and asked her if she went to Yale. Complainant responded “no.” CW
then proceeded to talk to her about the flurry of emails he had sent her and walked around her
desk so that he was standing next to her to “help” her decipher the emails. CW also “invited
himself” to sit with Complainant and a friend at lunch. CW sat right next to Complainant. On
another occasion, he asked her to break a $20.00 bill. On the day after Thanksgiving, CW

3 Since the office is located on Plum Island, the employees must take a ferry boat to get to
work.
4 Complainant needs to pass CW’s work station several times a day to deliver documents to her
colleagues.

0120114181

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brought in coffee and donuts for everyone and came to her work station to specifically offer
her a donut.5

Complainant asserts that she informed S1 about the harassment as early as October 23, 2010,
by telephone. A day or two later, around October 25, 2010, Complainant met with S1 in her
office and reiterated the numerous experiences with CW. S1 agreed that she thought CW was
strange but simply chalked it up to a personality quirk and the fact that CW had weak
communication skills. In addition, S1 told Complainant that she would inform CW that the
work place was not a “meat market” but it was their collective job as a department to teach
CW the proper way to behave.

Several weeks went past without feedback from S1 or any change in CW’s conduct.
Accordingly, Complainant decided to seek help from a Department of Homeland (DHS)
security official (PO)6 who immediately addressed her concerns by speaking with CW but did
not reveal Complainant’s identity.7

A couple of weeks later, on December 7, 2010,
Complainant met with S1 who informed Complainant that she spoke with CW about her
concerns. However, S1 also began to express annoyance with Complainant and reprimanded
her for getting PO involved. Moreover, S1 blamed Complainant for not being assertive
enough. For example, S1 “snarled” at Complainant and stated that she was not her
(Complainant’s) mother. S1 also noted that Complainant had listed “assertiveness training" on
her Individualized Development Plan (IDP), as to imply that Complainant’s problems with CW
were her fault for not being assertive enough in telling him to stop. Complainant felt
humiliated by S1’s statements and reaction to her concerns. Complainant continued to inform
S1 of CW’s inappropriate and “creepy” behavior. However, S1 responded that she was
hesitant to discuss the issue with CW because she knew that Complainant did not want her
name mentioned, and S1 didn't know how to discuss it with him without mentioning
Complainant’s name.
Complainant told S1 that she felt that S1 did not handle her concerns properly and that she
should have talked to CW and provided Complainant with feedback within 24 hours after she
raised the issue of harassment. S1 became very angry, put her hands down on her desk,
“snarled” and stated: "file a complaint against me then Susanne." Complainant responded that
she did not want CW anywhere near her and that she expected S1 to take care of it. S1 did not
take Complainant seriously and stated “Oh Susanne, what could [CW] possibly say to you.”
S1 then ended the discussion and instructed Complainant to stop sending her emails referring to
CW as “Mr. Creepy.”

5 Complainant did not engage with CW but she also did not tell him directly to stop bothering
her.
6 PO is a GS-13 Security Specialist, Force Protection Branch, (Office of Chief Security
Officer, DHS), located in Orient Point, New York.
7 Complainant did not want her identity revealed.
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On or about December 10, 2010, Complainant met with S1 and her second-line supervisor (S2)
(male). Both supervisors acted as if that was the first time they had learned of Complainant’s
allegations pertaining to CW. They tried to convince Complainant that they did not do
anything about it previously because they did not have all the facts. After trying to explain
their reasoning for the delay in investigating Complainant’s allegations, they abruptly handed
Complainant her performance review and requested that she sign it. While Complainant
attempted to review the performance appraisal, S2 continued his questioning of her harassment
allegations (e.g., asking if she did anything to lead CW to believe that she was interested in
him). Complainant felt that injecting her performance appraisal review during a meeting
pertaining to allegations of sexual harassment was highly inappropriate. Complainant felt
“strong-armed” by her supervisors. S1 and S2 also asked her to refrain from discussing CW’s
behavior with her colleagues. Complainant stated that she felt they were trying to put a “gag
order” on her. She felt intimidated and interrogated by her supervisors and left the meeting
abruptly.

The following Monday, December 13, 2010, S1 and S2 met with PO. Instead of focusing on
investigating Complainant’s allegations, S2 spent the entire meeting questioning the security
officer’s authority to investigate sexual harassment allegations. S2 even told the officer that he
was going to call his boss at the Department of Homeland Security (DHS) Force Protection
Branch in Washington, DC.

It appeared to Complainant that she could not trust her supervisors as they were not taking her
concerns seriously. Complainant contacted the employee relations office and requested one of
the human resources specialists (HR) to let S1 and S2 know that she could not bear to go into
another meeting alone with either of them.

S2 informed Complainant that CW was instructed to stay away from her. He also informed
Complainant that he was trying to locate her since she left the December 10, 2010 meeting (the
previous Friday) and that he was unable to find her for the rest of the day. S2 informed
Complainant that he had not finished their meeting and that he was not attempting to put a gag
order on her. He also informed her of her responsibilities to the Agency and as her manager
he needed to figure out how much work time she should be granted to spend on her EEO
complaint. Because she felt as if she was not being treated fairly and her rights were being
violated, she retrieved a directive regarding guidelines for the use of official time in EEO
complaints and provided it to S2. Complainant also told S2 that he needed to stop railroading
her which visibly angered him. S2 rose from his chair, snarled and stated “what did you say
to me? I am not railroading you.” S2 then informed Complainant that he was not going to
discuss the issue with her anymore and that she could take it up with the area EEO office.

Following this discussion, Complainant initially refused to meet with S1 or S2 alone.
However, after S2 “threatened” Complainant with suspension for failing to meet with him or
0120114181

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S1 to go over her performance appraisal, Complainant reluctantly acquiesced and met with
them.8

Despite being directed not to speak with Complainant, CW did so on one or two additional
occasions. Complainant became severely distressed because she knew she could not go to
management without being subjected to more ridicule and intimidation. One day in particular,
February 14, 2010, Complainant went outside to avoid CW offering her donuts. A friend
called the office health nurse to come help Complainant. Complainant then went home and
called the EEO office and the Deputy Area Director (W2) (male). Complainant informed W2
that she had to take the rest of the week off, and W2 offered to put her leave request through.
Complainant called W2 the next day, at which point he told her that he had changed his mind
and that she would have to contact S1 directly to get her leave request approved. After
Complainant submitted her leave request electronically, S1 informed her via email that she
would be charged with Absent without Official Leave (AWOL) for the first day she was absent
and that she would reserve the decision whether to grant approval for the rest of Complainant's
leave. Complainant’s states that S1 chastised her for not being at work and told her that she
"may" have to submit a doctor's note. S1 also refused to acknowledge "the validity" of her
discussion with W2.

ANALYSIS AND FINDINGS

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. (November 9, 1999) (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

In order to establish a case of sexual harassment based on a hostile work environment, a
complainant must show, by a preponderance of the evidence, that: (1) she belongs to a
statutorily protected group; (2) she was subjected to unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex, that is, but for the complainant’s sex, she would not have
been the object of the harassment; (4) the harassment affected a term or condition of

8 Complainant wanted the area director or another supervisor to conduct her performance
review.
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employment, either unreasonably interfering with the work environment or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct.
16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. See Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (March 8, 1994).
The Commission concludes that Complainant has not proven a case of sexual harassment based
on a hostile work environment. To begin with, even assuming Complainant’s version of
events as true, they are at best ambiguous as to a sexual or sex-based nature. Moreover, even
if we were to accept Complainant’s assertion that CW’s behavior was “indirectly suggestive,”
we conclude that the conduct alleged fails to rise to the level of unreasonably altering
Complainant’s work environment or creating an intimidating, hostile, or offensive work place.
Accordingly, we find that Complainant failed to establish that she was subjected to sexual
harassment as defined by Title VII.9

Reprisal

Complainant must establish a prima facie case of reprisal by presenting facts that, if
unexplained, reasonably give rise to an inference of retaliatory animus. See Watkins v. U.S.
Postal Serv., EEOC Appeal No. 0120092749 (June 29, 2012). Specifically, a complainant may
establish a prima facie case of reprisal by showing that (1) he or she engaged in a protected
activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was
subjected to adverse treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

We find that Complainant established a prima facie case of reprisal. Specifically, the record
supports the finding that Complainant engaged in opposition to alleged sexual harassment as
early as October 23, 2010, when she complained about CW’s behavior to S1. We also find
that Complainant engaged in subsequent opposition (e.g., when Complainant sought follow-up
information from S1 after her initial complaint of harassment; when Complainant sought the
assistance of PO after allegedly failing to get help from S1; and when Complainant told S1 to
keep CW away from her).

The record also indicates that shortly after engaging in protected opposition, Complainant
received the following adverse treatment: (a) on December 7, 2010, S1 told Complainant, out
of frustration, to file a complaint against her (S1); (b) on December 10, 2010, S1 presented

9 To the extent that Complainant alleges sex-based disparate treatment with respect to any of
the claims alleged, we find the record devoid of evidence sufficient to establish sex-based
animus by any responsible management official.
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Complainant with her performance appraisal during a meeting pertaining to her complaint of
sexual harassment; (c) on January 25, 2011, she was threatened with insubordination because
she refused to meet with S1 to discuss her performance review; (d) on February 15, 2011, S1
charged Complainant with AWOL and threatened her with future charges after she left work
and refused to return; (e) on December 7, 2010 S1 “cut off communication” with Complainant
when on December 7, 2010, S1 told Complaint that their meeting was over and that she was
not going to discuss Complainant’s concerns regarding CW anymore; and on December 13,
2010, when S2 also told Complainant he would no longer discuss the issue of EEO time with
her and directed her to speak with the EEO area office about the amount of time she could use
to manage her EEO complaint during work hours.

With respect to (b) – (d), we find that the Agency has articulated legitimate, non-
discriminatory reasons to rebut the inference of retaliation. Specifically, with respect to
Complainant’s assertion that her supervisors improperly interjected her performance appraisal
during a fact-finding meeting pertaining to her sexual harassment complaint, the record
supports the finding that her supervisors asked her if they could take care of her performance
appraisal before the meeting started.10

The record also shows that when Complainant told her
supervisors that she would not sign the appraisal, they put it away.
With respect to Complainant’s claim that her supervisors threatened her with insubordination
when she refused to meet with S1 regarding her performance evaluation, the record shows that
Complainant was informed of legitimate consequences she would face if she did not participate
in her performance review. The record also indicates that Complainant was never actually
charged with AWOL.

With respect to (a) and (e), even if we assume Complainant’s assertions as true, the record
does not establish that S1’s reaction to Complainant’s harassment complaint constituted
unlawful retaliation. It is the Commission's position that “[t]he statutory retaliation clauses
prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to
deter the charging party or others from engaging in protected activity,” but that “petty slights
and trivial annoyances are not actionable, as they are not likely to deter protected activity.”
EEOC Compliance Manual, Section 8 – Retaliation, No. 915.003, at 8-II-D.3 (May 20, 1998).
We cannot conclude, under the circumstances of this case, that S1’s responses,11 which the
record indicates were promptly apologized for, were either based upon a retaliatory motive, or
amounted to more than a petty slight or trivial annoyance. See Nurriddin v. Nat’l Aeronautics
and Space Admin., EEOC Appeal No. 01A23148 (Sept. 30, 2004).12

10 The record shows that the performances appraisal deadlines were past due that same week.
11 S1 denies “daring” Complainant to file an EEO complaint, but rather told her to file a
complaint, out of frustration.
12 We also find that the conduct alleged was not reasonably likely to deter Complainant from
engaging in protected activity.
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CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding no
discrimination or reprisal.

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
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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

May 22, 2013
Date