[Redacted], Randee D., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Dec 8, 2022

Appeal No. 2022000656 (E.E.O.C. Dec. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randee D.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation, Agency. Appeal No. 2022000656 Hearing No. 570-2020-00961X Agency No. 2019-28441-OST-02 DECISION 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 October 14, 2021 final decision concerning an 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 During the period at issue, Complainant worked as a Digital Librarian at the Agency’s National Transportation Library (NTL), Bureau of Transportation Statistics (BTS), in the Office of Information and Library Science (OILS) in Washington, D.C. On August 12, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex (female). By letter dated September 9, 2019, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 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. 2022000656 2 Was Complainant harassed based on sex (female) since 2017. The incidents constituting the alleged harassment are as follows: A. Since January 2017, [Complainant’s] first level supervisor denied [her] professional opportunities. B. Since November 28, 2018, [Complainant’s first-level supervisor] refused to take action against a male co-worker (C1) for viewing pornography at work. C. Since November 28, 2018, [the first-level supervisor] refused to take action against a male co-worker for displaying pornography to female colleagues. D. In March 2019, another male co-worker (C2) verbally attacked [her] during a meeting with colleagues. E. Since March 21, 2019, [the first-level supervisor] refused to take corrective action against C2 for his conduct during the meeting. F. On March 23, 2019, [the first-level supervisor] unfairly chastised [her] about [her] conduct at the March 2019 cataloging meeting. After an investigation into the complaint, 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). Complainant timely requested a hearing but subsequently withdrew her request.2 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b)., finding no discrimination. Regarding claim (A), the Agency found that management stated that Complainant’s requests for international travel were denied based on budgetary constraints. Regarding claims (B) and (C), the Agency found that it took appropriate corrective action against the male co-worker for viewing pornography. Specifically, the Agency stated that Complainant’s supervisor reported the incident to human resources for guidance and that a forensic investigation was conducted, and the male co-worker received discipline. The Agency notes that Complainant acknowledges that she did not view the pornographic material firsthand. 2 The record contains a Dismissal Order dated August 11, 2021. Therein, the AJ remands the matter for a final agency decision pursuant to Complainant’s withdrawal of her hearing request. The record does not contain a copy of Complainant’s withdrawal of her hearing request. However, she does not contest on appeal that that she requested withdrawal of her hearing request. 2022000656 3 Regarding claims (D)-(F), the Agency stated that Complainant’s supervisor spoke to two other employees, who attended the meeting in question, and they stated that both Complainant and C2 were at fault. The Agency found that Complainant’s supervisor scheduled a mediation for Complainant and C2 which ultimately did not take place due to a scheduling conflict for Complainant. The Agency found that the supervisor counseled Complainant and C2 individually on the matter. The Agency found that Complainant failed to establish a hostile work environment because the incidents at issue were not based on sex. The Agency further found that the incidents at issue were not sufficiently severe or pervasive to constitute a hostile work environment. 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”). To establish a claim of harassment sufficient to violate Title VII, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 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 show that it took immediate and appropriate corrective action. 2022000656 4 Allegation (A)-Developmental Opportunities/International Travel Complainant failed to establish, by a preponderance of the evidence, that she was subjected to a discriminatory harassment based on her sex with respect to claim (A). Regarding allegation (A), being denied developmental opportunities, particularly international travel, the record contains an affidavit from Complainant’s supervisor. Therein, the supervisor stated that all the domestic trips and training Complainant requested were approved for FY 2019, although BTS was forced to cancel some trips due to funding availability and the impact of continuing resolutions. The supervisor indicated that he also needed to cut some trips for male employees. Report of Investigation (ROI) at 118. The supervisor also asserted that the Agency had “very limited” international travel and was not like other agencies with significant international travel. ROI at 119. The record also contains an affidavit from the Deputy Director of BTS. Therein, the Deputy Director corroborates the testimony of Complainant’s supervisor that opportunities for international travel are very limited. The Deputy Director stated that he reviews training and travel plans submitted through office directors and makes recommendations to the BTS Director. ROI at 164. The Deputy Director further stated that opportunities for international travel are very limited and approval is based on how important the trip is to the Agency’s mission and on available budget. ROI at 165. The Deputy Director stated that he has recommended denying requests from both male and female employees regarding international travel.3 Id. Regarding Complainant’s assertion that she was denied the opportunity in 2019 to present a paper in Greece even if she used annual leave and paid her travel expenses, the Deputy Director stated “[Agency] policy prohibits employees from making presentations as representatives of the Department while on personal leave. When the DOT affiliation of the presenter is known and the presentation is on a topic associated with DOT, then the presentation can only be made when the DOT employee is on official travel. DOT considers traveling during annual leave without reimbursement to be personal travel and not official travel.” ROI at 165. Based on the foregoing, we do not find that Complainant established, by a preponderance of the evidence, that she was denied developmental opportunities based on her sex. Allegations (B) and (C) - Sexual Harassment Regarding claims (B) and (C), Complainant describes two incidents: one involving a female Fellow and one involving a female contractor who observed sexually explicit material on a male co-worker’s computer.4 ROI at 85. 3 The record contains an affidavit from a male co-worker of Complainant’s. The male co-worker stated that he was also denied requests for international travel. ROI at 95. 4 While Complainant, in her affidavit, asserts that there were three reported incidents of her male co-worker displaying pornography to a female colleague, Complainant only describes two 2022000656 5 Complainant acknowledges that she did not witness the material in question firsthand but that the incidents were reported to her by the females involved. ROI at 86. Complainant’s supervisor, in his affidavit, responded that he took corrective progressive action after each reported incident. ROI 124. Complainant’s supervisor stated that in late summer 2018, a female Fellow reported to another Agency official that the male co-worker had inappropriate material saved to his computer. Complainant’s supervisor stated that the Fellow reiterated this information to him. ROI at 120. The supervisor states that he verbally counseled the male co-worker. The supervisor asserted that he reiterated to the co-worker the appropriate uses of Agency computers, and that pornography is not permitted on Agency computer systems, so there should be none on his computer. The supervisor stated that the co-worker stated that he understood. ROI at 120. After an incident in November 2018, in which a female contractor reported to the supervisor that she observed inappropriate material on the computer of a male co-worker (same male co-worker as the summer 2018 incident) when he asked for assistance with his computer. ROI at 120. The supervisor stated that he informed the Deputy Director of the incident and contacted an individual in human resources. As a result, they requested an electronic records search to evaluate whether the co-worker had viewed, maintained, stored, downloaded, streamed or otherwise accessed sexually explicit material on his government computer. ROI at 123. The supervisor stated that the result of the investigation determined that the co-worker engaged in misuse of Agency systems.5 The supervisor stated that he imposed a three-day suspension on the co-worker.6 ROI at 120. The record contains also contains an affidavit from a Supervisory Human Resources Specialist. Therein, she acknowledged that the supervisor contacted her in November 2018, opened an investigation and proposed formal discipline. ROI at 161. Based on the foregoing, even assuming arguendo that the alleged incidents, which were not personally observed by Complainant, were sufficiently severe or pervasive to constitute a hostile work environment, we find that management took prompt corrective action. incidents. ROI at 85. In addition, Complainant’s supervisor describes two incidents, rather than three. ROI at 120-123. 5 According to the Notice of Decision on Three Days Suspension, the forensic investigation conducted by the Agency’s Information Technology found files on Complainant’s government account including images of “females in underwear, bathing suits, playboy bunny outfits and tied with ropes.” ROI at 229. 6 The record contains a copy of a Notice of Decision-Three Days Suspension for Misuse of Agency Systems, dated June 3, 2019, from the Deputy Director (the April 26, 2019 proposed suspension memorandum was issued by the supervisor) to the male co-worker. 2022000656 6 As set forth above, the supervisor took progressive action first with a verbal reprimand and subsequently with a three-day suspension. Claims (D)-(F)-March 2019 with C2 Complainant alleges that a male co-worker (C2, a different male co-worker than the one at issue in claims (B)-(C)) verbally attacked her in a March 2019 meeting. In his affidavit, the supervisor asserted that he was not at the meeting but spoke to other employees who attended the meeting in question. The supervisor stated that he was informed that both employees were at fault and shared responsibility.7 ROI at 125. The supervisor stated that he met with both Complainant and C2 on March 21, 2019, and then Complainant abruptly left the meeting when C2 started talking. ROI at 125. The supervisor stated that when Complainant left the meeting, he verbally counseled C2 on appropriate behavior in meetings. Specifically, the supervisor stated “[t]his included not speaking over others.8 ROI at 126. The supervisor stated that he relocated Complainant away from C2’s cubicle at her request. ROI at 129-130. Finally, the supervisor stated that he informed Complainant that he spoke to other employees who attended the meeting and that they informed him that both she and C2 were responsible for the situation. ROI at 130. The supervisor further asserted that “I did discuss with [Complainant] that the incident was a teachable moment and as Chair of the meeting, she is the leader who should control the meeting flow and should set the tone for the meeting. If there is a discussion during the meeting that is getting out of control, as the Chair, she should look to take steps to de- escalate the situation…” ROI at 130. Based on the foregoing, we find that Complainant failed to establish, by a preponderance of evidence, that she was subjected to harassment based on sex regarding claims (D)-(F). We find that the Complainant has not established the incident at issue (the meeting and the supervisor’s response) was based on sex. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 7 The record contains an affidavit from an employee who attended the meeting in question. The employee stated that both Complainant and C2 were arguing, and both took the disagreement further than they should have. ROI at 111. 8 The record contains an affidavit from C2. Therein, he asserted that the supervisor provided both Complainant and him an opportunity to speak about what occurred at the meeting. ROI at 96. C2 also stated that after this incident, he received a lower-level grade in communication in his next review. ROI at 96. 2022000656 7 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). 2022000656 8 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 December 8, 2022 Date