0120152352
11-21-2017
Eva M,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eva M,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120152352
Agency No. FS-2014-00129
DECISION
On June 26, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 12, 2015,2 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Service Assistant at the Agency's Schenck Job Corps Center facility in Pisgah Forest, North Carolina.
On February 3, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on sex (female) when she was subjected to sexual harassment by her male coworker and, although she reported the matter to management, believed the Agency took no corrective action.
The Agency accepted the complaint for investigation.
Investigative Report
Complainant alleged she was sexually harassed by her male coworker ("CW") beginning on October 3, 2013. Complainant stated that she had jokingly asked the CW if he was following her. She said CW he replied, "Hell yeah, that damn perfume is driving me crazy." She noted that he then sat down and began rubbing his inner thighs with his hands, and moving his legs in and out. Complainant found CW's gestures to be sexual in nature, and walked away without saying anything because she felt embarrassed, offended, and humiliated.
Complainant did not immediately report the incident to management. However, later that same day she recounted the incident to a union representative ("Union Representative") (female). The Union Representative relayed the incident to the President of the Union who advised Complainant to file an EEO complaint. Complainant did not want to pursue the matter because she hoped it would be a one-time incident and because her evaluation was pending and she feared that management would retaliate against her for reporting the incident.
Subsequently, on November 4, 2013, Complainant asserted that a second similar event occurred. Complainant was in a conference room waiting for a staff meeting to start. When CW entered the room, she said he exclaimed, "damn all that perfume drives me crazy." Complainant indicated that the CW sat down at the meeting table and grabbed his inner thighs and rubbed them. She also noted that he moved his legs in and out in the same manner he had as the last incident. Complainant noted that the Union Representative and other coworkers were present in the room. The Union Representative provided a witness statement fully supporting Complainant's version of the November 4 event and asserted that the CW seemed to be "in a semi erect state"
Complainant and the Union Representative contacted the Agency's Hotline designated for dealing with claims of workplace harassment.3 On November 8, 2013, the Union Representative also reported the incident to their supervisor ("Supervisor") (female). The Union Representative provided the Supervisor with written statements from Complainant and herself, as well as several other witnesses to the November incident. Complainant and the Union Representative were informed that the situation was under investigation by headquarters. The supervisor told the Union Representative that she would investigate the matter and need to consult with headquarters. On January 6, 2014, the Supervisor sent Complainant an email indicating that another management official from Ashville would be conducting a management inquiry into the sexual harassment claim. However, Complainant claims no action was ever taken as far as she knows, except that CW was moved to another Job Corps Center.
After the harassment was reported, Complainant alleged CW reacted in an angry manner. She said he was a large, imposing man, who made angry faces towards her to intimidate her. She said that he refused to discuss work-related issues with her and believed he went out of his way to discredit her in the workplace. For example, on December 5, 2013, Complainant was speaking to a coworker over the phone. According to Complainant, CW overheard the conversation and asked the coworker with whom he was speaking. She said that when CW learned it was Complainant, he told the coworker to hang up on Complainant. The Union Representative confirmed that CW would roll his eyes in meetings when Complainant was speaking or mumble some remark that could not be heard. She also states he would give Complainant and herself "dirty looks."
CW denied all Complainant's allegations. CW asserted that Complainant and the Union Representative colluded to falsely accuse him of harassment.
One of the male staff members, who was in the conference room prior to the meeting on November 4, stated he heard CW say that the perfume was "making him crazy." He also observed CW leaning back in his chair, but said that Complainant was sitting between himself and CW and obstructed his view. Another staff member, who was not in the conference room on November 4, stated that CW had "grabbed his private area many times in front of staff during briefings" and frequently adjusted his pants.
The Supervisor said that she contacted Employee Relations as soon as she learned of the harassment claim. She said she communicated with Complainant through the Union Representative because Complainant had filed a whistleblower complaint with the office of the Inspector General asking for protection from management retaliation. Therefore, she said she coordinated with other management officials to see that an inquiry into the matter was conducted. However, the management investigation did not begin until January 17, 2014, more than two months after Complainant's complaint was reported. During that period, Complainant and CW continued to work together. CW was not moved to another location until sometime after January 31, 2014.
The Supervisor also stated that Complainant informed her of the telephone incident and she instructed CW to avoid communications with Complainant whenever possible.
Final Agency Decision
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 (EEOC or Commission) 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.
Specifically, the Agency found that Complainant failed to establish her prima facie case of sexual harassment. The Agency determined that the events alleged were isolated occurrences and were not sufficiently severe or pervasive enough to establish a violation of Title VII. It did suggest that CW's behavior could be found offensive and inappropriate for an office setting and that management should have counseled CW. However, it found that once Complainant reported the incidents to the Supervisor in November 2013, the offensive conduct by CW ceased.
The Agency did concede that, under other circumstances, it would have been liable if Complainant had been subjected to sexual harassment sufficient to violate Title VII. The Agency noted that the Supervisor promptly contacted Employee Relations once she learned of the alleged harassment to schedule an internal investigation. However, the investigation did not commence until January 17, 2014, and would not have been considered a prompt investigation. In addition, the Agency held that Complainant and CW were forced to work together while the investigation was pending. However, based on the Agency's finding that CW did not subject Complainant to conduct that was severe or pervasive, the Agency concluded that Complainant did not establish a violation of Title VII.
The instant appeal followed.
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. (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").
It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct related to her membership in those classes; (3) the harassment complained of was based on sex; (4) 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) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Here, we find, after careful consideration of the evidence of record, that Complainant has failed to establish hostility. The evidence does corroborate Complainant's version of events, and we find that she was subjected to offensive behavior, which she interpreted as sexual, by CW on two occasions. We also agree that CW's behavior on the two occasions may have been inappropriate for an office setting. However, we conclude that without more these two events, even considering the subsequent allegations of CW's unpleasantness towards Complainant for reporting him, were insufficiently severe or pervasive to rise to the level of a violation of Title VII. In making this determination, we note that it is undisputed that after Complainant reported the matter to management, there was no further episode of alleged sexual harassment by CW.
We do take note, however, of the Agency's responsibility to engage in the proactive prevention of any reported harassment in the workplace. This includes taking prompt and effective steps to address offensive conduct as soon as management learns of it to prevent its continuation, resulting in a potential violation of Title VII. As the Agency recognized in its own final decision, while the Supervisor promptly reported CW's conduct to the appropriate Agency officials as soon as she learned of it from Complainant, it took nearly two months for a management inquiry into the matter to begin. Moreover, for much of that time, Complainant and CW continued to work together. The Agency conceded in its decision that if CW's conduct had risen to the level of actionable sexual harassment, the Agency would likely have been liable for the harassment because its response was admittedly slow. We caution the Agency to review its harassment response procedures and its training for management to ensure that future responses to allegations of sexual harassment are more appropriate.
CONCLUSION
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 decision concluding a violation of Title VII has not been established.
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.
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
November 21, 2017
__________________
Date
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.
2 We note that the Agency's certificate of service was dated June 5, 2015, even though the decision was dated February 12, 2015.
3 As a result of the Hotline contact, an Agency EEO counselor contacted Complainant to initiate what became the instant EEO complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152352
2
0120152352