0120093170
01-14-2010
Sarah R. Klein, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Sarah R. Klein,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120093170
Agency No. IRS-08-0445-F
DECISION
On July 20, 2009, complainant filed an appeal from a June 23, 2009
final agency 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency decision.
BACKGROUND
During the relevant period, complainant worked as an Internal Revenue
Agent at a Roanoke, VA facility of the agency. Complainant filed a
formal EEO complaint alleging that the agency discriminated against her
on the basis of sex (female) when her Group Manager (S1) subjected her to
hostile work environment harassment beginning with her agency employment
in May 2006.1
Specifically, complainant alleged that S1 (1) in May 2006, complimented
her appearance, always asked her to sit next to him at training class
outings, and discussed "hooking up" with women and inappropriate sexual
pictures; (2) in August 2006, invited her to stay in his hotel room
during a business trip; (3) in August 2006, at a baseball game attended
by agency employees, placed his hand on her thigh and discussed how he
could see that she receive grade promotions; (4) in December 2006, stated
that if he had to spend his annual leave working with anyone, he would
like it to be complainant; (5) in March 2008, during business travel,
touched complainant's arm and stated that he was looking for someone
to have a good time with that night; (6) in March 2008, referred to
complainant shopping at Victoria's Secret during a conversation about
check book audits; and (7) required complainant's detailed medical
information after she previously submitted documentation to support
her pregnancy-related bed-rest. Complainant stated that she asked to
be reassigned and the agency informed her that it would do so. She is
requesting remedial relief for two years of alleged harassment by S1.
Agency Investigation
The agency conducted an investigation of complainant's harassment claim.
During the investigation, complainant stated that, in August 2006, she
informed her on-the-job trainer (C1) that S1 made her feel uncomfortable,
especially after drinking alcohol. Further, complainant stated that,
on March 27, 2008, she informed her Territory Manager (S2) of the
harassing incidents and was reassigned temporarily to another manager.
Complainant added that S1 calling or visiting her duty station made
her physically ill and that stress from him contributed to her need for
bed-rest during pregnancy.
In an affidavit, S2 stated that, during an all-employee training in March
2008, a union representative informed him that S1 sexually harassed
complainant. S2 met with complainant who confirmed the allegation
against S1, stating that the harassment dated back to 2006. S2 stated
that he was unclear about some of complainant's allegations2 but felt
the action alleged in (3) was priority. S2 stated that he discussed the
allegations with his supervisor the same day and questioned S1 about the
matter the following week. S2 stated that S1 denied the allegations,
so he asked the agency EEO office to conduct an investigation. He added
that EEO began an initial investigation and then complainant filed an
EEO complaint, which was assigned to a different investigator. S2 noted
that the agency Inspector General's office conducted an investigation.
S2 stated that, during the investigation, he assigned complainant to
another manager within his territory and asked complainant if she wanted
to relocate to another office, but she did not. S2 noted that the agency
conducts annual harassment training.
During the investigation, S1 addressed complainant's allegations.
He stated that (1) he did not discuss "hooking up" or sexual pictures
with complainant, and he spent most non-class time with his co-trainer
rather than students, (2) he did not invite complainant to stay in his
hotel room and did not realize she was in a need of a room, (3) he did
not touch complainant, does not have the ability to promote her faster
than is allowed, and sought to sit next to a former male classmate so
that they could discuss the baseball game, (4) as her manager, he had
to work and conduct complainant's workload review while on "use or
lose" leave in December 2006, but did not make the alleged comment,
(5) he did not touch complainant, however, he did see complainant and
C1 in the delicatessen of the conference hotel so he went in to talk but
did not stay because he did not want deli food, and (6) he did not make
the statement to complainant and there are female agents who work with
him who can vouch for his conduct. Further, S1 stated that S2 assigned
complainant to another manager on April 28 and he did not communicate
with her after that time.
Also during the investigation, as to (5), C1 stated S1 saw her and
complainant at a delicatessen and stated that he was looking for
someone to eat and hang out with but did not stay because he wanted
pizza. Regarding (7), C1 stated that she became a "go between" when
S1 requested medical documentation from complainant because complainant
would not answer agency calls while on medical leave. C1 added that she
suggested that, when complainant returned to work from maternity leave,
she strengthen her audit trails so S1 considered extending complainant's
within-grade review period but did not do so. C1 stated that complainant
contacted her and other coworkers about the incidents alleged of 2006,
however, she did not recall them. C1 stated that she did not observe
inappropriate actions by S1 to complainant.
In affidavits, two male Revenue Agents stated that, during the 2006
conference dates, they saw S1 drinking and heard him make an obscene
statement to a woman in a bar. Several Revenue Agents stated that S1
is flirtatious with women, complainant informed them about the alleged
harassing incidents, and they recalled seeing her sad or disturbed on
the incident dates. One agent stated that complainant "text-messaged"
him asking to switch seats during the baseball game mentioned in (3).
A female Revenue Agent stated that S1 paid more attention to complainant
during the May 2006 training class. A Special Agent in the Inspector
General's office acknowledged that he led an investigation regarding
complainant's sexual harassment claim in 2008. The record contains
investigative interviews starting in April 2008.
At the conclusion of the agency 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 (AJ) or
an immediate final agency decision. Complainant requested the latter.
Final Agency Decision
In its final decision, the agency found no discrimination, stating
that complainant failed to show that incidents (1), (2), and (4) to
(6), individually or together, rise to the level of a hostile work
environment.3 The agency stated that S1 denied complainant's allegations
and the evidence of record does not support complainant's contentions.
The agency stated that witnesses gave conflicting statements and
complainant attempted to enhance the recollection of one witness.
The agency did not refer to incident (7). Further, the agency stated,
assuming complainant could establish a hostile work environment,
"[c]omplainant unreasonably failed to avail herself of opportunities
to prevent [] harm" by not alerting management until 2008. The agency
stated that management took prompt, corrective action once informed
by complainant. The instant appeal from complainant followed.
CONTENTIONS ON APPEAL
On appeal, complainant stated that the agency failed to take her
allegations seriously. She stated that it disregarded the statements
of her colleagues, failed to address whether management should have
known of the harassment, and delayed reassignment. She stated that her
reassignment was not effective until June 2008. Further, complainant
stated that the touching alleged in (3) is severe enough alone to
constitute a hostile work environment. Complainant indicated that the
agency failed to address the action alleged in (7). Complainant stated
that the agency erroneously chose S1's credibility over her witnesses'.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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 of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all 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 (1993).
To establish a prima facie case of sexual harassment, the complainant
must prove, by a preponderance of the evidence, the existence of five
elements: (1) that s/he is a member of a statutorily protected class;
(2) that s/he was subjected to unwelcome conduct related to his/her sex;
(3) that the harassment complained of was based on his/her sex; (4) that
the harassment had the purpose or effect of unreasonably interfering with
his/her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d
897, 903 (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 Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
After a careful review of the record as a whole, we find that complainant
failed to establish that the agency discriminated against her as alleged.
Summarily, complainant alleged that S1, who was her supervisor that was
stationed in another state, made suggestive remarks and/or touched her
on her shoulder and thigh while in the presence of others. Complainant
alleged that there were seven incidents over a two year period. Further,
complainant alleged that S1 requested more medical documentation
seemingly to gain more personal female-related information about her.
Complainant asks the Commission to base a finding on witness statements
as to S1's flirtatious nature, his treatment of other women, and how
witnesses observed complainant behave on particular occasions.
Based on the specific circumstances outlined in this record, we find
that the preponderance of the evidence of record does not affirmatively
establish that many of the actions alleged by complainant occurred as
she recounted as we are reduced to a "she said, he said" situation.
Unfortunately, the other witness statements lend little definitive
support to either version of events. Moreover, even assuming complainant
established she was subjected to sexual harassment by S1, we find an
inadequate basis for imputing liability to the agency. We find that the
agency established that it took reasonable care to prevent and promptly
correct any harassing behavior and that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided by
the agency or to avoid harm otherwise by failing to report S1's alleged
behavior to management until after it had allegedly been occurring for
two years. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 724
(1998); see also Faragher v. City of Boca Raton, 524 U.S. 775 (1998);
Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
Moreover, we find that agency management, once the harassment was
reported, took prompt and effective corrective action by initiating an
immediate investigation and assigning complainant to another manager.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 14, 2010
__________________
Date
1 We note that S1's duty station was Richmond, VA. Also, we note that S1
trained complainant prior to becoming her supervisor shortly thereafter.
2 S2 stated that complainant alleged the action in (7), claiming that
S1 sought to obtain more information about her "female problems," which
she felt violated her.
3 The agency noted that it reassigned complainant to another group on
April 28, 2008.
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0120093170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093170