Alycia R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 24, 2020

2019000407 (E.E.O.C. Jan. 24, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alycia R.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2019000407 Agency No. DON-17-00681-48095 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 August 20, 2018 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. 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 Transition Readiness Technician, NF-0326-02, at the Agency’s Personal and Professional Development Program, Marine and Family Programs, Marine Corps Community Services at Camp Pendleton, California. On January 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of national origin (Latin American), sex (female), and in reprisal for prior protected EEO activity when: 1. Beginning September 18, 2014, Complainant was sexually harassed on multiple occasions by her second-level supervisor (S2), through inappropriate messages, comments, and physical touching; 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. 2019000407 2 2. Beginning in 2015, her first-line supervisor (S1) reduced her cash awards, lowered her performance evaluation, and issued her counseling letters on July 6, 2016, and January 31, 2017; and 3. On September 18, 2017, she was prevented from attending the retirement ceremony for the Assistant Chief of Staff for Marine Corps Community Services, by S1.2 Claim (1) Complainant claimed, beginning in September 2014, S2 verbally harassed her by calling her “Kardashian” and saying she should wear dresses more often. Further, Complainant alleged that S2 would make comments and send text messages saying, “who’s your daddy.” Additionally, S2 would ask to see pictures of Complainant’s Facebook profile and comment “Wow, you should let me see more pictures” and “Beautiful picture!” and stalked her on social media. Complainant alleges that she told S2 to stop, and although S2 apologized, he did not stop. Complainant claimed that S2 made other comments about her body and how she dressed that made her uncomfortable and placed a post-it note over a picture of her husband’s face that said “He doesn’t deserve you, take it down.” Complainant further contends that S2 physically harassed her by getting too close to her and, once, squeezed her right upper arm close to her breast and laughed. S2 also asked Complainant to delete the texts between them. Complainant believes that S2 wanted the texts to be deleted because they were incriminating. Complainant contends that she informed S2’s then-Administrative Assistant in 2014 of S2’s conduct. The Administrative Assistant stated that she advised Complainant to report the conduct. Complainant did not report S2’s conduct. Complainant again complained of sexual harassment in 2015, this time to an Events Coordinator, a coworker (CW1). According to Complainant, CW1 reported Complainant’s complaints to the Lead Supervisor (LS) at Leatherneck Lanes. LS then relayed the complaint to a Labor and Employment Specialist (LES). However, Complainant stated that she did not personally report S2’s conduct to any management official out of fear. The Administrative Assistant said that Complainant showed her the text messages between Complainant and S2. The Administrative Assistant concluded that S2 was engaging in inappropriate behavior, but also “thought it was inappropriate for her to be showing him the pictures.” Later, Complainant told the Administrative Assistant that she felt uncomfortable around S2. The Administrative Assistant asked Complainant for details, but at most, Complainant would only say that she was uncomfortable. The Administrative Assistant stated that she told Complainant to report S2’s behavior if she felt it was harassment. The Administrative Assistant insisted she never witnessed any inappropriate interactions between Complainant and S2. Despite Complainant’s discomfort, the Administrative Assistant observed Complainant repeatedly going into S2’s office, laughing and giggling, with the door closed. 2 The Agency dismissed age as a basis of discrimination because Complainant did not meet the age threshold imposed by law. Complainant does not contest the Agency’s dismissal on this ground. Therefore, we will not further address the matter. 2019000407 3 CW1 averred that she too never observed physical touching or inappropriate behavior by S2. When she heard from Complainant, she advised Complainant to take appropriate steps to get the help she needed. LES testified that she heard from LS regarding Complainant’s allegation of sexual harassment and directed LS to inform Complainant to contact the EEO Counselor if she believed she was being subjected to sexual harassment. LES spoke to the Human Resources Director, who then spoke to S2. LES added that Complainant approached her seeking a transfer out of her current position. In doing so, Complainant never mentioned S2 nor said that she was being sexually harassed. S2 denied all the allegations. S2 said he asked Complainant to delete their texts because Complainant had confided in him about domestic abuse issues, and S2 did not want Complainant to get in trouble with her husband. S2 explained that he frequently paid for lunch for the office, and that seemed to start a trend of employees calling him “dad” or “papi.” S2 averred that the Human Resources Director spoke with him and directed him not to send any more texts to Complainant. S2 retired from the Agency in September 2017. Complainant did not delete the text messages and submitted some for the record. The record also contains interview notes from an investigation into S2 regarding sexual harassment allegations by another employee. These notes were largely consistent with the affidavits in this matter. Claim (2) Around February 2017, the Administrative Assistant became Complainant’s first-level supervisor (S1). Complainant claimed that after S1 became her supervisor, Complainant suffered lower performance evaluations and cash awards. Complainant alleged that S1 lowered her evaluation because she was not at work when S1 arrived. Complainant noted that she received letters of counseling for not being at her desk and disputes the circumstances supporting the letters. Both S1 and S2 stated that cash awards were broadly reduced as a result of a reduction in the budget. S1 insisted she evaluated Complainant fairly and accurately, and consistent with Complainant’s performance issues. In the first letter of counseling, dated July 6, 2016, S1 explained that the Non-Military Usage Report had not been completed. S1 believed it was a priority, but Complainant did not. Additionally, S1 learned that Complainant had not been responding to voicemails in a timely manner. S1 further noted that Complainant was not always at her desk ready to begin work at the beginning of her tour of duty. Complainant explained that she was in the bathroom. In a later letter of counseling, dated January 31, 2017, S1 stated that Complainant failed to complete a task before leaving the office, despite a specific direction to complete the task before leaving the office. Complainant claimed that she was in charge of distributing leftover funding and did not feel comfortable spending the funds as directed. Complainant claimed that S1’s manner of supervision constituted retaliation. Regarding the January letter of counseling, S2 suggested that Complainant was frustrated with S1’s management style because S1 “goes by the book.” 2019000407 4 S1 testified that when she became Complainant’s supervisor, she reviewed Complainant’s duties and her expectations for Complainant’s performance. S1 issued the July letter of counseling because Complainant did not execute her duties, as described in the letter. S1 added that she arrived to work one morning and found Complainant was not at her desk. Complainant soon walked out of the back office with a blanket and pillow. S2 later discovered Complainant had not been checking voicemails and S2 assumed voicemail duties. Claim (3) Complainant averred that, on the day of the retirement ceremony for the Assistant Chief of Staff, S1 directed Complainant to stay in the office and not attend the ceremony because she had not been personally invited. However, after a telephone call, S1 said Complainant could attend the ceremony, but not the dinner. Complainant claimed she felt very uncomfortable at the ceremony, but as she was leaving, the Director of Food, Leisure, Hospitality, and Services Department told her to stay for dinner. S1 denied preventing Complainant from attending the ceremony. Rather, S1’s division, including Complainant, were not in charge of the event or invitations. According to S1, Complainant went around S1 to get an invitation to the event. S1 instructed Complainant to finish her assigned task and she would inform Complainant when she received guidance from the Operations Officer/Deputy Director. Instead of finishing the task, Complainant asked a co-worker for phone coverage to attend the event. S1 again instructed Complainant to finish her assigned task and await further instructions. S1 subsequently received guidance and advised Complainant that she could close the office to attend. At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, 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 or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that her testimony and record evidence sufficiently demonstrate that she was subjected to unwanted sexual harassment. Complainant argues that she complained to S1 while she and S1 were coworkers, but S1 did nothing. Complainant contends that S1’s promotion only served to worsen the harassment. Complainant believes that her claim is corroborated by the fact that S2 resigned after being placed on administrative leave for several months in connection with another sexual harassment complaint. The conduct was severe and pervasive, and Complainant argues that her delay in reporting harassment was reasonable. Complainant again admits she did not complain of sexual harassment to the Agency but argues the Agency should not be able to avail itself of vicarious liability defenses because the Agency was aware of another female employee’s complaint against S2 and because Complainant told LES that she wanted to be transferred somewhere else. 2019000407 5 According to Complainant, the Agency’s response was inadequate because they failed to investigate her complaint, failed to separate her from S2, and failed to adequately discipline S2. Further, Complainant insists the Agency retaliated against her because she had never suffered poor performance evaluations or reduced cash awards until after she complained about sexual harassment. Complainant also argues that S1’s actions and comments constitute per se reprisal. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Hostile Work Environment - Sexual Harassment (Claim 1) 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). In this case, Complainant alleges that S2 sexually harassed her on multiple occasions by sending her inappropriate texts, making improper comments, and physical touching. Complainant produced evidence showing S2 may have made comments such as “Who’s your daddy?” along with other comments about her Facebook pictures during text conversations. However, Complainant failed to produce any corroborating evidence demonstrating she was subjected to any of the alleged physical contact. Even assuming that the incidents occurred as alleged and the alleged conduct was sufficiently severe or pervasive to establish an intimidating, hostile, or offensive work environment, Complainant would still be required to establish a basis for imputing liability to Agency. 2019000407 6 In the absence of a tangible employment action by a supervisor, such as a termination, disciplinary action, etc., an employer is vicariously liable for harassment if management knew or should have known of the alleged harassment and failed to take immediate and appropriate corrective action. See Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 29- 30 (Mar. 19, 1990); Rathers v. Dep't of the Treasury, EEOC Appeal No. 0120080750 (Aug. 12, 2009), req. for recon. den'd EEOC Request No. 0520090677 (Mar. 11, 2010); Owens v. Dep't of Transp., EEOC Request No. 05940824 (Sept. 5, 1996). The record evidence established that the Agency acted reasonably to prevent workplace harassment by providing publications and annual training on its anti-harassment policies and that Complainant received that training on at least one occasion, as recently as November 2016. Further, the record is devoid of any evidence establishing that Complainant reported the alleged sexual harassment to any management officials, which she claimed began in September 2014. Complainant acknowledged that she did not report the alleged harassment but stated that she informed CW1 who later reported the allegations to LS who then relayed the complaint to a Labor and Employment Specialist (LES). The Human Resources Director learned of the text messages and instructed S2 to stop sending Complainant text messages immediately. S2 subsequently retired from the Agency in September 2017. There is no evidence that any similar conduct recurred. As a result, the Commission finds that there is no basis for imputing liability to the Agency. Hostile Work Environment - Non-Sexual Harassment (Claims (2) - (3)) To establish a hostile work environment claim, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her sex, national origin, or prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2019000407 7 Here, Complainant asserted that based on her protected classes, management subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be discriminatory and retaliatory harassment. We find that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. For example, with regard to the 2017 cash award reduction, S1 affirmed that she informed Complainant that this decision was based on Complainant’s performance difficulties and the reduction in the Division’s budget. S1 noted that other employees had their awards reduced or did not receive an award at all. S1 noted that when she became supervisor, she asked Complainant what task she felt she performed proficiently, and Complainant could not identify one that she felt competent in performing without question or assistance. With respect to the July 2016 verbal counseling, S1 stated that she issued it based on Complainant’s failure to execute her duties including, not preparing an assigned report for civilian/non-military usage of facilities, not being at her desk as scheduled, and not checking the voicemails for the mainline. As to the January 2017 counseling, S1 confirmed that Complainant had displayed unprofessional conduct mostly based on how she communicated and there were deficiencies in the quality and timeliness of her work. As to her performance evaluation, S1 stated that she rated Complainant as “Excellent” for 2016- 2017, but slightly reduced her rating in the “Quality of Work” factor to “Satisfactory.” S1 explained that she rated her fairly based on her actual overall performance and always tried to address issues as they happened. S1 stressed that she provided training (internal and external) and coaching and identified areas of improvement. S1 noted that Complainant was not always receptive to professional critiques and would resist. Finally, with respect to the retirement ceremony, S1 advised that she did not prevent Complainant from attending the retirement ceremony; rather, Complainant was not initially invited, and the Division was not in charge of who attended. Complainant then received an invitation and S1 asked that she finish her task while S1 checked with the Operations Officer/Deputy Director for guidance. Instead of completing the task, Complainant asked a co-worker for phone coverage so that she could attend the event. S1 reminded Complainant that that was not her direction and again asked if she had finished the task. S1 told Complainant that she would let her know about attending the event after she spoke with the Operations Officer/Deputy Director. After speaking with the Operations Officer/Deputy Director, S1 told Complainant that she could close the office to attend the event. The Commission finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. 2019000407 8 Moreover, to the extent Complainant claimed that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 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). 2019000407 9 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 January 24, 2020 Date