[Redacted], Josephine S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal No. 2021002255 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josephine S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021002255 Hearing No. 460-2020-00027X Agency No. BOP-2018-01092 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 28, 2021, 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. 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 a Senior Officer, GL- 7, at the Agency’s Federal Correctional Complex (FCC) in Beaumont, Texas. On January 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment based on sex (female) and in reprisal for prior protected EEO activity when: 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. 2021002255 2 1. From January 2016 to June 2018, a coworker made unwanted, repeated requests for dates; 2. From June 2018 to October 2018, management failed to take effective action to ensure Complainant was separated from the accused harasser after reporting on- duty sexual harassment and off-duty sexual assault; 3. On July 13, 2018, Complainant was accused of unprofessional behavior when she was issued a professionalism memo; 4. On July 24, 2018, a Lieutenant stated that Complainant should expect to see the accused harasser due to working at a complex; 5. On September 24, 2018, Complainant became aware her allegations of sexual harassment were not referred for official investigation; 6. On October 1, 2018, the Human Resources Manager spoke to Complainant in a condescending, snippy, and dismissive manner regarding her allegations of on- duty sexual harassment and off-duty sexual assault; 7. On October 31, 2018, Complainant was removed from her bid post; 8. On December 26, 2018, Complainant’s accused harasser provided an anonymous note accusing her of sleeping with inmates; and 9. On December 28, 2018, Complainant was issued a temporary action notice. 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. Complainant requested a hearing but subsequently withdrew her request. Consequently, 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. The instant appeal followed. In its final decision, the Agency outlined the timeline of events. From 2016 to March 2017, Complainant claims that her coworker (CW), Senior Officer, subjected her to sexual harassment by repeatedly asking Complainant for dates, touching her hair, and requesting hugs. Complainant claims that she declined CW’s advances, but he persisted. She says CW made these advances during work hours, over email, text, phone, and in person. Complainant alleges that during this period, on March 2, 2016, CW sexually assaulted her in her home. Complainant claims that CW had asked Complainant if he could take a nap at her house between shifts and she agreed, but once CW was at the house, Complainant says that he raped her. In March 2017, Complainant complained of the unwanted texts and emails asking her out on dates-but not the alleged 2016 rape-to Senior Intelligence Analyst Lieutenant (L1). L1 spoke to CW at that time, and the harassment stopped. Complainant says there was no communication between her and CW from March 2017, until an incident on June 11, 2018. According to Complainant, on June 11, 2018, when she was in a parking lot walking toward the building where she was assigned to begin her shift, CW walked out of an adjacent building into the parking lot. She says that when he saw her, he turned around and walked ahead of her into the building she was assigned. She also says that while CW was walking in front of her, he looked back at her over his shoulder and smirked and laughed. 2021002255 3 She says he then entered the building and waited where Complainant would have to pass by him. Complainant lowered her eyes and walked by CW without further incident. CW did not speak or touch Complainant at this time, but Complainant believed that he had no reason to be in the building and that he was attempting to intimidate her. After the incident in the parking lot, Complainant reported the incident, along with the alleged March 2016 rape, to management. After she sent a memorandum on June 12, 2018, to the Complex Captain detailing both the sexual assault and the parking lot incident, the Agency convened a threat assessment committee (TAC) on June 20, 2018. The TAC prepared a report, which indicated that management was aware of Complainant’s claim of the off-duty assault, but notes that the triggering incident for the threat assessment was Complainant’s complaint of the encounter with CW on June 11, 2018. The report concluded that CW presented no physical threat and that the June 11, 2018 incident did “not fall within the scope of workplace violence as defined” by Agency policy. In July 2018, Complainant and CW were both issued professionalism memoranda by the Complex Warden (Warden) instructing them both to conduct themselves in a professional manner. The Warden did this based on the TAC’s recommendation, and he avers that the memorandum did not accuse Complainant of past unprofessional behavior. However, Complainant believed that she was issued the professionalism memorandum in response to a letter CW wrote to management the day before accusing her of spreading lies about him, bothering him, and about how they had dated in the past, all of which Complainant denies. After the TAC meeting in June 2018, Complainant believed that the Agency would conduct an internal investigation into her allegations against CW, including the March 2016 rape. She emailed an Associate Warden in September 2018 inquiring about the status of her case. In response to that email, management set up a meeting on October 1, 2018, attended by Complainant, her union representative, an Agency attorney, and the Human Resources Manager (HRM). Complainant claims that during the meeting, she again asked for information about her case, and HRM asked her if CW had done anything after the June 2018 parking lot incident, to which Complainant replied he had not. Complainant then voiced her concern that CW was being allowed to work overtime shifts in the same building and at the same time as Complainant, to which she claims HRM said that nothing could be done if CW was not doing anything further to Complainant. Complainant also says that HRM said something to the effect that Complainant could not expect the Agency to do anything about the alleged outside assault when she had not even reported it to the police. Complainant claims that HRM spoke to her in a dismissive and condescending tone throughout the meeting, though Complainant’s union representative averred that is HRM’s manner of speaking. Based on HRM’s comments, Complainant says she believed the Agency would not act on her sexual assault allegations unless she reported the rape to the police, which she did the next day on October 2, 2018. On October 14, 2018, Complainant informed the Warden that she had reported the assault to the police. On October 31, 2018, Complainant complained to the Shift Lieutenant (L2) about CW working overtime in the building where she was working, to which L2 responded he would get someone to relieve Complainant from her post. Complainant said that she was on her “bidded” post and that she should not be the one required to relocate. 2021002255 4 Complainant claims that L2 replied that because CW was on overtime, he could work where he wanted and that Complainant was the one with the problem. Complainant claims that she was the one ordered to leave, but L2 states that while the Complex Captain did initially tell L2 to move Complainant to another post, ultimately CW was the one moved based on Complainant’s objection. CW also avers that he was moved on that date, not Complainant. Additionally, back in July, Complainant says she complained to a different Lieutenant about CW being allowed to work shifts in the same building as Complainant, to which he allegedly replied that Complainant should expect to see CW on occasion because they both worked at the same complex and that “Lieutenants shouldn’t have to get in the middle of you all’s mess.” After Complainant filed a police report against CW, management convened a second TAC meeting on December 21, 2018. The TAC was made aware of Complainant’s report to the police2 and of an ongoing Office of Internal Affairs (OIA) investigation. The record is unclear about when the OIA investigation began, but at some point-between the October 1, 2018, meeting with HRM and the December 21, 2018 TAC meeting-the Agency’s EEO office referred Complainant’s allegations for internal Agency investigation. The second TAC recommended that the Agency separate Complainant and CW until the completion of the investigation (though the report does not specify whether by “investigation” it was referring to the criminal investigation or OIA investigation), issue letters/memorandum to both parties outlining the separation and their expected actions during such separation, and issue specific guidance to Administrative Lieutenants as how to best assist with the separation. On December 26, 2018, Complainant learned of an anonymous note found at the FCC that accused Complainant of having sex with inmates. CW admits to reading the note, though he denies writing it. Complainant believes CW authored the note containing false allegations because the note appeared shortly after CW was contacted by a police detective investigating Complainant’s sexual assault claims, and she feels CW was attempting to discredit her. The record indicates that the Agency was unable to determine who wrote the note. On December 28, 2018, Complainant received a temporary action notice informing her that she was not to communicate with CW based on the recommendation of the TAC, that she should report to a Lieutenant if she was ever on a shift with him, and that professional conduct was everyone’s responsibility. On January 2, 2019, CW received an identical temporary action notice. Based on the above events and evidence in the record, the Agency in its final decision determined that while there was a strong basis to believe that Complainant was subjected to coworker harassment, the Agency was not liable because it took appropriate steps to address and remedy Complainant’s allegations once it learned of the harassment. In making this determination, the Agency focused on what information Agency officials had and when they received it. 2 We note that the record contains no indication that CW was charged in connection with Complainant’s police report. 2021002255 5 The Agency found that at all times relevant to this complaint, the Agency took reasonable steps to prevent CW from harassing Complainant. Complainant acknowledged that after she informed L1 in March 2017 of CW’s inappropriate requests for dates-without mentioning the alleged rape in March 2016-CW had no interaction with her until June 2018. The Agency therefore reasoned that L1’s initial response to Complainant’s sexual harassment claim based on the information Complainant provided was effective in preventing CW from continuing the unwelcome behavior. Over a year later, on June 11, 2018, Complainant saw CW walk into the building she was assigned and was disturbed by the interaction, though it is undisputed that CW did not verbally communicate with Complainant. After she reported the incident to management, as well as the alleged rape that occurred more than two years prior, the Agency convened the TAC by June 20, 2018. Based on what could be confirmed at that time and the more than year-long period during which there was no contact between the parties, the Agency concluded that management took reasonable steps to prevent any harassment of Complainant by CW. The Agency reasoned that the first TAC report correctly determined that there was no evidence of an imminent threat to Complainant’s safety and that the TAC’s recommendations were “reasonably calculated to not allow harassment to occur, while also allowing [C]omplainant and [CW] the opportunity to continue their respective employment with minimal likelihood of any interaction.” The Agency found that the record further showed management took reasonable efforts to ensure the separation of Complainant and CW, with several lieutenants averring that they made adjustments to the parties’ assignments in order to prevent them from working in the same building during the same shift. When Complainant voiced her concerns in October 2018 that management had treated her dismissively and informed the Agency she had filed a police report, the Warden then convened a second TAC meeting, which reviewed the new information and formalized the separation order between Complainant and CW, which was already a pre-existing practice within the FCC. The Agency’s final decision acknowledged Complainant’s claims that she was treated in a dismissive and snippy way by certain management officials and made to feel like she was the one with the problem, but ultimately determined that the record did not contain sufficient evidence to determine whether that description was accurate. In sum, the Agency found that management was “reasonably proactive in preventing [C]omplainant from having to interact with [CW] at work” and CW has not communicated with Complainant electronically or in person since Complainant first reported the harassment to L1. The Agency therefore found that the Agency is not liable for failing to appropriately respond to Complainant’s complaints of sexual harassment by CW. 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). 2021002255 6 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”). To establish a claim of harassment, a 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 her 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We assume, as did the Agency in its final decision, that Complainant was subjected to sexual harassment. We find, however, that there is no basis for imputing liability to the Agency because the Agency took prompt and immediate corrective action once it became aware of the harassment allegations. In the case of coworker 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 that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d); EEOC, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999); see Sharon M. v. Dep’t of Transp., EEOC Appeal No. 0120180192 (Sept. 25, 2019) (agency liable as it provided no reason for its delay of six months in issuing proposed disciplinary action following an incident of racial harassment in an email); Complainant v. Dep’t of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official’s failure to address an ongoing tense situation between the Complainant and a coworker based on her protected class stated a claim under Title VII). Whether the agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Complainant v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992); Complainant v. Dep’t of Transp., EEOC Request No. 0590824 (Sept. 5, 1996). Appropriate agency corrective action is reasonably calculated to stop the harassment. Complainant v. Dep’t of the Navy, EEOC Appeal No. 0120100303 (Jul. 20, 2012). Furthermore, appropriate relief may include taking steps to ensure that the harasser and the complainant are not assigned to a common place. See Destiny H. v. Dep’t of the Navy, EEOC Appeal No. 0120130872 (Dec. 10, 2015). It is not a remedy for the employer to do nothing simply because the coworker denies that the harassment occurred. See Fuller v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995). 2021002255 7 Here, the Agency first became aware of the alleged harassment-but notably not the alleged rape-in March 2017. Complainant acknowledged that after she spoke to L1 at that time about the unwanted sexual advances from CW and provided L1 with copies of texts from CW, all contact between her and CW ceased. After the June 2018 incident where CW went into a building where Complainant was about to begin her shift, the Agency took immediate action once Complainant reported the incident and the alleged rape. The record shows the Agency convened a TAC meeting within 9 days or fewer and did its best to separate Complainant and CW, though Complainant claims that at least twice during this period they were scheduled on the same shift in the same building. The record shows, however, that when their shifts overlapped on October 31, 2018, CW was moved to another post to avoid being in the same building with Complainant. Once Complainant voiced her concerns about the Agency’s handling of her claims and filed a police report, another TAC meeting was convened, and the Agency formalized the order to keep Complainant and CW separate pending the ongoing investigations.3 We note that there is nothing in the record, nor in the submissions on appeal, to indicate that Complainant had any further interaction with CW after the June 2018 incident. We also note that neither the professionalism memorandum nor the temporary action notice resulted in a disciplinary or any other adverse action against Complainant. While we acknowledge that using the same wording for both Complainant and CW in their respective memoranda made Complainant feel that the Agency was treating her as the problem, the record indicates that it was Agency practice to issue the same letters to each party. Based on the remedial actions taken by the Agency beginning in March 2017, and from June to December 2018, including meeting with Complainant, convening TAC meetings, and keeping her separated from CW, we find that the actions taken by the Agency were sufficient to relieve it of liability. Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 3 The record indicates that the Agency’s internal OIA investigation did not result in any sustained charges against CW. 2021002255 8 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021002255 9 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 August 10, 2022 Date