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

Equal Employment Opportunity Commission

Feb 16, 2023

Appeal No. 2021003642 (E.E.O.C. Feb. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nery C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003642 Hearing No. 530-2019-0002X Agency No. BOP-2018-0118 DECISION On June 9, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Officer, GS- 7, at the Agency’s Federal Correctional Complex in Hazelton, West Virginia. On December 20, 2017,2 Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when a Supervisory Correctional Officer - Lieutenant (“LT”) sexually harassed her. 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 Complainant initiated EEO contact on October 6, 2017. 2021003642 2 Specifically, Complainant alleged that LT singled her out for inappropriate attention because she was a female under his supervision and LT posted pictures of Complainant in military uniform and her daughter on his social media pages with inappropriate comments attached. The Agency accepted Complainant’s complaint for EEO investigation. Complainant alleged, on January 13, 2017, LT sent her a Facebook friend request, which she did not accept because other staff warned her of his reputation with female employees. Complainant stated, then, on January 14, 2017, LT sent her a Facebook message, stating “Sneaky hot, I take it you don’t Facebook a lot or you’re just blowing off my friend request.” Complainant alleged on an unspecified date LT referred to her as “babe.” Complainant alleged, subsequently, on September 22, 2017, LT took pictures of her and her daughter from her Facebook page and posted them on his page with inappropriate comments.3 Additionally, Complainant stated, in January 2017, she informed the union of LT’s Facebook friend request and subsequent comments, and the union informed the Complex Warden (“Warden”). Complainant stated that Warden reprimanded LT about social media behavior at that time. Complainant stated that management was informed of other matters with LT and female employees, but some other employees would not come forward due to fear of retaliation. Complainant stated management did not act until she filed an EEO complaint, although they were aware of complaints about LT from other female employees in February 2017. Warden stated, in October 2017, a Senior Investigative Agent (“SIA”) informed him of Complainant’s concerns, and he referred the matter to the Agency’s Office of Internal Affairs (OIA) for local investigation. During the investigation, Warden stated that he removed LT from supervising employees and moved him to the Administration Building under special assignment. The Complex Captain (“CAPT”) stated that he assigned LT to the 6:00 p.m. to 6:00 a.m. shift in another building to lessen the chance of contact with Complainant. Later, the OIA report sustained Complainant’s allegation concerning the incidents that directly affected her and also substantiated that several other female employees reported that LT had made sexually related remarks towards them. As a result of the OIA investigation results, Warden stated, on April 30, 2018, he demoted LT and reassigned him to his former duty station in Maryland. Warden stated that when he was informed of allegations against LT he acted promptly and held LT accountable. LT denied ever sexually harassing Complainant. He acknowledged that he was charged with unprofessional conduct and that he was reassigned during the OIA investigation. LT stated that his Facebook page was hacked, and he did not post the pictures of Complainant and related comments. 3 The Facebook comments stated: “WTH, they just keep getting cuter. You look like a good mom.” and “Good God, if you two were jelly, I’d spread you on a biscuit. Also, thank you for your service.” 2021003642 3 The record contains an OIA Investigative Report, dated December 8, 2017, stating, “[t]he local investigation revealed sufficient evidence to sustain the allegation.” The Report stated, “[t]he allegations of Unprofessional Conduct of a Sexual Nature [are] sustained.” The report stated that Warden reported the allegations on October 12, 2017, and the Agency conducted a local investigation starting October 17, 2017. At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing, but on September 19, 2019, the assigned AJ remanded the matter for a final decision, citing failure to submit required documentation and failure to appear for a September 10 teleconference. On May 11, 2021, the Agency issued a final decision finding no discrimination. Specifically, the Agency stated that the incidents Complainant alleged did not rise to the level of hostile work environment, and even if they did, the Agency took prompt, corrective action to address Complainant’s concerns. The Agency stated that Complainant can not grieve actions against other Agency employees. The instant appeal from Complainant followed, without substantive comment. 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”). Harassment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994)(Enforcement Guidance on Harris). 2021003642 4 The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Sexual harassment is a form of sex discrimination that violates Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Sexual harassment is actionable under Title VII if it is “so severe or pervasive” as to “alter the conditions of [the victim's] employment and create an abusive working environment.” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998). To establish a claim of hostile work environment harassment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris. Here, we conclude Complainant has failed to prove her claim of hostile work environment sexual harassment sufficient to amount to a violation of Title VII. As previously stated, the conduct at issue must be viewed in the context of the totality of the circumstances, considering the nature and frequency of offensive encounters and the span of time over which the encounters occurred. We agree, in totality, between January 2017 and September 2017, LT’s Facebook friend request, direct message to Complainant, reference to Complainant as “babe” on an occasion, and Facebook posts were inappropriate and unprofessional. However, even when these incidents are considered together, Complainant has not established that she was subjected to discriminatory conduct that was so severe or pervasive as to alter the terms or conditions of her employment. Moreover, we note that in response to the allegations raised by Complainant and other employees, management reassigned LT to a different location and shift and then demoted him once the OIA investigation found he had engaged in unprofessional conduct.4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 4 We note that during the investigation of this complaint, Complainant alleged that her report of these incidents resulted in specific workplace consequences for her. To the extent that she intends to raise allegations of unlawful retaliation within the EEO complaint process, she must contact an EEO Counselor within 45 days of her awareness of such unlawful retaliation. See 29 C.F.R. § 1614.105(a)(2). 2021003642 5 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: 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). 2021003642 6 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 February 16, 2023 Date