Agnes W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0120162733 (E.E.O.C. Jun. 14, 2018)

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

Agnes W.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120162733

Hearing No. 560-2015-00160X

Agency No. ARRILEY14MAR01039

DECISION

On August 26, 2016, 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
July 26, 2016, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Management Analyst,
GS-0343-11, at the Business Center, Logistics Readiness Center (LRC), Fort Riley, Kansas. On
May 13, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to
unlawful sexual harassment and a hostile work environment based on her race (Black), sex
(female), and disability (depression) when:

(1) in January 2014, while in her supervisor’s (S1) office, a co-worker (CW) (Caucasian,
male) stared at her chest and the following day told her that her “breasts look good;”

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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(2) in January 2014, CW told her that she would be his payment for his services as a hunter;

(3) on January 24, 2014, when asked about his government travel card, CW responded that
it was in his back pocket and then bent over, wiggled his butt and told her to take it out of
his pocket;

(4) on February 20, 2014, S1, after being told of the alleged sexual harassment by CW,
took no immediate action to acknowledge any of Complainant’s concerns, instead only
telling Complainant she needed to be friendlier and offered her counseling; and

(5) on March 13, 2014, S1 ordered Complainant to keep the door to her office “fully”
opened.

After 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 timely 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.

FACTUAL BACKGROUND

According to Complainant, in 1998 she was diagnosed with depression that causes her to have
feelings of extreme sadness, anxiety, hopelessness, helplessness, inability to concentrate, worry
and stress. This is a lifetime condition that can be managed by medication. Complainant alleges
that S1 has known about her condition since August 2007, when Complainant began receiving
counseling, but CW does not know about her condition. Complainant also alleges that she told
her second-line supervisor (S2) (Caucasian, male) about her depression when she reported her
claim of sexual harassment. Complainant did not provide management with medical
documentation regarding her diagnosis and did not directly mention to management that she had
any limitations or medical issues caused by her condition. Complainant asserts, however, that she
told S1 and S2 of her struggles to concentrate and inability to control her emotions.

Complainant claims that in January 2014, while in the LRC Deputy Director’s (DDLRC) (White,
male) office, CW stared at her chest and the following day told her that her “breasts look good.”
Complainant notes that DDLRC may have witnessed this conduct. Complainant also claims that
in January 2014, CW told her that she would be payment for his services as a hunter. She contends
that he said this at least three times in her office during the months of December 2013 and January
2014, when they discussed the hunting of small game and the key control program. Complainant
asserts that she told CW that she wanted to compensate him with cash payment in exchange for
squirrel meat that he would give to Complainant for her mother, but CW told her that she would
be his payment.

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There were no third-party witnesses to these incidents. In addition, Complainant claims that on
January 24, 2014, when asked about his Government travel card, CW responded that it was in his
back pocket and then bent over, wiggled his butt and told her to take it out of his pocket. She
contends that one of the Program Analysts (PA1) (White, female) was a witness to this incident.

Complainant also asserts that on February 20, 2014, S1 failed to take any action after Complainant
told her of the alleged sexual harassment committed by CW. According to Complainant, instead
of addressing Complainant’s concerns about CW, S1 told her that she needed to be friendlier and
offered her counseling. Complainant states that there were no witnesses to this incident.

On March 13, 2014, S1 ordered Complainant to keep her office door “fully” open. Complainant
asserts that she had multiple tasks to complete, so she closed her door to reduce distractions. The
record shows that S1 sent an email to Complainant, instructing her to keep her door open because
“we are a customer service organization.” Complainant contends that having her door closed did
not have any effect on her ability to assist her customers.

The record shows that on March 19, 2014, S2 learned of Complainant’s sexual harassment
allegations shortly after Complainant initiated EEO contact. After learning of the allegations S2
immediately went to Complainant for additional information and commenced an Army Regulation
(AR) 15-6 investigation into the matter.2 At that time, S2 also notified his higher headquarters at
Fort Hood, Texas; moved Complainant out of the section on a permanent basis in accordance with
Complainant’s wishes; and temporarily moved CW out of the same building as Complainant
during the pendency of the investigation.

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 a complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or 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 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

2 On May 6, 2014, the internal and independent AR-15-6 investigator concluded that
Complainant’s claims that CW engaged in sexually harassing or other
inappropriate/unprofessional behavior were not substantiated by the witness testimony and other
evidence obtained during the investigation.
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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).
Finally, an agency may be liable for unlawful harassment by an employee when the agency has
empowered that employee to take tangible employment actions against the victim, i.e., the
harassing employee is a supervisor of the victim.

Additionally, to establish a claim of sexual harassment, Complainant must show that: (1) she
belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her
sex, including sexual advances, requests for favors, or other verbal or physical 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).

An individual with a disability is one who: (1) has a physical or mental impairment that
substantially limits one or more of that person’s major life activities; (2) has a record of such
impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Under the
Commission’s regulations, an Agency is required to make reasonable accommodation to the
known physical and mental limitations of a qualified individual with a disability unless the Agency
can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and
(p); EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17,
2002).

Upon review of the record, we agree with the Agency’s finding that Complainant fails to present
sufficient evidence that she was subjected to sexual harassment or a hostile work environment on
the bases alleged. Aside from Complainant’s bare, uncorroborated assertions, the record is devoid
of evidence to support her claim that CW stared at her breasts. Complainant claims that the staring
occurred in DDLRC’s office but DDLRC denies seeing any inappropriate conduct by CW.
Complainant also asserts that CW told her that her “breasts look good.” However, CW states that
Complainant adjusted her breasts and complained about how they looked since she lost weight.
CW asserts that he told Complainant that she “look[ed] fine,” to make her feel better. An
Administrative Support Assistant (ASA) (African-American, female) testified that Complainant
had made similar comments about her breasts in front of her and CW. Upon review of the entire
record, we agree with the Agency, that the preponderance of the evidence supports the conclusion
that CW's statement (i.e., “they look fine”) was made to reassure Complainant that there was
nothing wrong with her appearance, rather than an inappropriate sexual innuendo.
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We also agree with the Agency in finding insufficient evidence to support Complainant’s claim
regarding CW’s comment pertaining to the offer of squirrel meat. Specifically, we note that the
undisputed record shows that there were no witnesses to the comment pertaining to payment for
the squirrel meat. CW denies Complainant’s assertion regarding this claim. CW testifies that he
refused Complainant’s offer of money and told her that if she was going to insist on paying him,
he was not going to give her mother any squirrels. He further testified that when Complainant
asked him why he would not accept money, he told her, “because I'm doing it for you not for the
money.” In response, Complainant said, “well you’re not getting me.” CW asserts that he initially
thought Complainant was joking, but then responded by saying, “you have nothing to offer me.”
CW asserts that he was attempting to explain to Complainant that he was not accepting any
payment because he was giving her the meat as a friendly gesture, which is what he would do for
all his friends. Aside from Complainant’s bare assertions, we agree that the record is devoid of
evidence to establish that the alleged comment was made in the sexually inappropriate manner
alleged. As Complainant chose to withdraw her request for a hearing, we do not have the benefit
of an AJ’s findings of fact or determinations on the credibility of witnesses, and can only evaluate
the facts based on the weight of the evidence presented.

In addition, we find insufficient evidence to support Complainant’s version of the Government
travel card incident. CW denies Complainant’s assertions pertaining to the Government travel
card. PA1 recalls that Complainant and CW were in her office, but does not recall CW wiggling
his butt and telling Complainant to take the card out of his back pocket. PA1 also states that she
never observed CW behaving inappropriately in a sexual manner toward other employees. Again,
aside from Complainant’s bare, uncorroborated assertions, the record does not contain evidence to
support her claim.

We also find that the preponderance of the evidence establishes that Complainant visited CW’s
office frequently throughout the relevant time-frame.3 Aside from Complainant’s bare and
uncorroborated assertions, the record is devoid of testimonial or documentary evidence to support
the finding that she notified any management official of the alleged sexual harassment before
contacting the EEO office.4 S1 testified that she did not learn about Complainant’s allegations of
sexual harassment until the AR 15-6 investigation was ordered by S2.5

3 S1, CW and ASA provide consistent testimony with respect to Complainant’s relationship with
CW and ASA.
4 The preponderance of the evidence shows that Complainant complained about CW in a similar
fashion as her complaints about other co-workers.
5 We note that according to S1, Complainant stopped talking to CW, ASA and other male and
female employees at different times during the relevant time-frame. S1 notes that Complainant,
ASA and CW had been very friendly with each other and would spend a lot of time together usually
in ASA or CW’s office. Sometime in February 2014, Complainant told S1 that she was not
speaking to ASA. S1 offered suggestions for improving Complainant’s working relationship with
her co-workers by suggesting that Complainant could be friendlier toward ASA. S1 also told
Complainant that she might want to consider the possibility that the breakdown in the relationship
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The record also shows that after S2 learned of the allegations of sexual harassment, he immediately
initiated an AR 15-6 investigation into Complainant’s claims. The undisputed record further
shows that management immediately placed Complainant in a different work area, as she
requested, so that she would not have to interact with CW on a continuous basis.6 We agree with
the Agency that the preponderance of the evidence establishes that upon learning of the alleged
sexual harassment, management took prompt corrective action. Complainant does not allege that
the alleged sexual harassment continued after S2 learned of the allegations.

Complainant also testified that in October 2013, she told S1 that she wanted to keep her door
closed “to keep the distractions down” because she had multiple tasks to complete. According to
Complainant, S1 permitted her to leave her door closed as an accommodation for her disability.
The record shows that on March 13, 2014, S1 notified Complainant that she needed to keep her
door open. The preponderance of the evidence indicates that Complainant often shut her door and
S1 did not raise it as an issue until S2 mentioned his concerns about the appearance created by a
closed door for a customer-service organization as well as Complainant ostracizing herself from
others. All the employees confirmed that they are required to keep their office doors open, except
when engaging in such activity as eating lunch, conducting a meeting, or when the office
temperature is particularly cold to keep the heat in.7

Even if we assume Complainant is an individual with a disability within the meaning of the
Rehabilitation Act, we agree with the Agency that the preponderance of the evidence does not
support Complainant’s assertion that any management official was aware or should have been
aware of her disability or the need for an accommodation. We also agree with the Agency that
had S1 previously granted Complainant an accommodation to keep her door closed, she certainly
would have raised it as soon as she was notified of the requirement to keep her office door open.
However, upon being notified of this requirement by e-mail by on March 13, 2014, Complainant
makes no mention of her purported disability or any alleged accommodation she had been granted.
Instead, she simply responds by stating that “[m]anagement has not provided [her] with a better
solution. Will never be a part of this team and request to be moved out of this section.” Likewise,
when discussing her issues regarding her ability to work with other employees, Complainant
makes no reference to her medical condition or any type of accommodation; rather, the entirety of
Complainant’s comments revolve around personal issues she has with co-workers.

We find Complainant’s arguments on appeal unpersuasive.8 Complainant’s appeal brief cherry-
picks sensational words or phrases out of CW’s detailed seven-page statement without placing

with her co-workers was Complainant’s fault rather than her co-workers’ fault and that
Complainant may want to consider seeing a counselor.
6 The undisputed record shows that while Complainant may have seen CW in her part of the
building on one or two occasions after she moved to a new work area, she did not interact with
him and he did not interact with her.
7 The record shows that the office was particularly cold in the winter and employees were permitted
to use space heaters in their individual offices.
8 Without restating each point here, we note that the Agency provides a thorough critique of
Complainant’s appeal brief, in its opposition brief.
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them in context. Complainant also includes additional instances of alleged harassment by CW that
were not included in her formal EEO complaint, her statement during the AR 15-6 investigation,
or her statement during the EEO investigation. When considering the record in its entirety, we
find insufficient evidence to corroborate Complainant’s claims.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision which concludes that
Complainant has not presented sufficient evidence in support of her claims.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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).
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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

June 14, 2018
Date