Robyn Q.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019001458 (E.E.O.C. Sep. 30, 2019)

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

Robyn Q.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 2019001458

Agency No. BOP-2017-0413

DECISION

On December 18, 2018, 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
December 10, 2018 final decision concerning an equal employment opportunity (EEO) complaint
claiming 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Procurement and Property Specialist, GL-9,
in Financial Management for Federal Detention Center (FDC) in Honolulu, Hawaii.

The record revealed that on January 11, 2017, Complainant emailed an administrative assistant
(Caucasian, national origin unspecified, male, 42 years-old) in FDC Food Services. Complainant’s
email instructed the coworker (CW) to coordinate pick-up of excess FDC property auctioned-off
though Government Services Administration. That morning, CW emailed the following reply to
Complainant: “I made a call to this genital man and left him a massage to give me a call to
schedule a time next week. will let you know when he can come in. (emphasis added)”

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.
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After she received the email, Complainant first responded “10-4. Thanks.” Six minutes thereafter,
Complainant emailed CW again that “future correspondence between us shall be handled in a
professional manner.” In two encounters that preceded the email at issue, Complainant perceived
surreptitious sexuality in CW’s communications with her. While staring at Complainant, CW
commented that she could use some cookies. CW mentioned to Complainant his wife was Filipino
like her and that he enjoyed Filipino cooking. She shared her concerns about CW to other co-
workers.

The day after receiving CW’s email, Complainant informed her supervisor who opined that CW
was off and really meant to type “gentleman” and “message.” Complainant disagreed and sought
counseling from a staff psychologist who testified Complainant was upset to the point she cried
and absented herself from the FDC. Upon Complainant’s return, CW’s supervisor asked if CW
could apologize to her directly. Complainant refused to accept an apology from CW.

On January 12, 2017, Complainant initiated the EEO complaint process with an EEO Counselor.
On January 18, 2017, Complainant discussed the email with an associate warden, but the associate
warden was uncertain if CW’s misspellings were deliberate. On February 2, 2018, FDC leadership
initiated elevated the email incident to the Agency’s an official investigation by Office of Internal
Affairs (OIA). On February 7, 2017, Complainant encountered CW while he was working as an
armed guard in the FDC parking lot. According to Complainant, CW made eye-contact causing
her panic. On February 9, 2017, Complainant emailed the assistant warden to request “separation
or supervised contact” with CW. Thereafter, the FDC’s warden convened a group of managers to
assess the situation. In a written response to the warden’s assessment group, CW claimed that he
had been diagnosed with dyslexia which caused him to frequently misspell words since childhood.
CW denied he emailed Complainant with purposeful misspellings. On February 10, 2017, CW’s
supervisor issued him a letter to immediately cease and desist personal contact with Complainant.
The letter stated CW’s failure to comply could result in discipline and reminded CW that the
Agency did not tolerate unprofessional conduct. The warden stated he believed CW was genuinely
remorseful and permitted Complainant to take two weeks leave. Complainant took a week of sick
leave beginning on February 13, 2017, followed by a week of annual leave that ended February
27, 2017.

After the Agency could not resolve Complainant’s EEO matter informally it issued her a notice of
right to file a formal complaint on April 17, 2017. On April 19, 2017, Complainant filed the instant
formal complaint alleging that the Agency discriminated against her based on race (Asian),
national origin (Filipino), sex (female), and age (49) when the Agency failed to adequately respond
to the allegedly harassing email.

Following an investigation, Complainant did not request a hearing before an Administrative
Judge, within the time frame provided in 29 C.F.R. § 1614.108(f). On December 10, 2018, the
Agency issued the instant final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

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The instant appeal followed. On appeal, Complainant addresses the email, argues that the Agency
failed to react expeditiously, failed to investigate impartially, and failed to take appropriate
corrective action.

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 Ch. 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”).

Sexual Harassment / Hostile Work Environment

To establish sexual harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to unwelcome conduct related to sex, including verbal or
other conduct of a sexual nature; (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, in other words, did the Agency know or have reason to know
of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct.
16, 1998).

We acknowledge Complainant’s membership in EEO-protected classes and that CW subjected her
to odd communications (emails and prior comments) that appear to be sexual in nature. Next we
analyze the degree to which CW’s harassment made Complainant’s work environment hostile.
The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person
in Complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, EEOC
Notice No. 915.002 (Mar. 8, 1994). We find CW’s actions were not pervasive. A group of
isolated incidents is not regarded as discriminatory harassment unless the conduct is severe.
Monroe M. v. Dep't of Def., EEOC Appeal No. 0120172219 (Feb. 28, 2019). We further find the
CW misbehavior was not severe. This Commission has consistently held personality conflicts,
general workplace disputes, trivial slights, and petty annoyances do not rise to the level of illegal
harassment. Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012).
Moreover, CW’s singular comments, while perceived as distasteful or unprofessional, are not
construed as statements which would create an objectively hostile work environment.
Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015).

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Moreover, the Agency eventually implemented the Agency’s appropriate zero tolerance
procedures. FDC management reported the matter to Agency headquarters so that OIA would
officially investigate CW for misconduct. After Complainant requested restricted contact between
her and CW, the FDC warden convened the threat assessment group. The day after Complainant’s
no-contact request, as a result of the threat assessment group recommendation, CW was ordered
to avoid interacting with Complainant. Complainant was granted two weeks of leave to help
decompress from the problems CW had caused. Since CW received the Agency cease and desist
letter on February 10, 2017, Complainant did not report any more incidents where CW has
bothered her. We find the Agency’s actions in responding to Complainant’s allegations were
adequate.

Disparate Treatment

We duly considered Complainant’s disparate treatment in accordance with the U.S. Supreme
Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant had to establish a prima facie case by demonstrating she was subjected to
adverse employment action under circumstances that would support his inferences of
discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden
was on the Agency to articulate legitimate and nondiscriminatory reasons for its actions at issue.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). If the Agency articulated a legitimate,
nondiscriminatory reason for its actions, then our inquiry proceeds to the third step—whether
Complainant has shown by a preponderance of evidence that the Agency’s reasons were pretexts
to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133
(2000); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

As discussed above, the Agency reacted appropriately once Complainant insisted management
prevent contact between her and CW. We acknowledge that Complainant asserted that the Agency
was more receptive to believing allegations of sexual improprieties from younger women or
Caucasian women. Complainant provided no evidence of such comparators who had received
more favorable treatment because of comparable events. Such arguments are speculative and
unpersuasive.

CONCLUSION

We AFFIRM the Agency’s decision as the preponderance of evidence did not establish
discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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.
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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

September 30, 2019
Date