Bernardina N.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Nov 15, 2016

0120150106 (E.E.O.C. Nov. 15, 2016)

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

Bernardina N.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120150106
Hearing No. 480-2011-00630X
Agency No. PEFY10111

DECISION

Complainant filed an appeal from the Agency’s September 2, 2014, final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a School Secretary
at the Agency's Ikego Elementary School (Ikego) in Yokosuka, Japan. On November 2, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
basis of sex (female) when she was sexually harassed between February 2009 and September 21,
2010. Complainant also alleged that management officials retaliated against her for
complaining about the sexual harassment.

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). Complainant timely requested a hearing
which was held on January 28 and 29, 2014. A decision was issued on August 7, 2014. The

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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Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

AJ’S FACTUAL FINDINGS

Between 2009 and July 2010, the Supply Technician at Ikego (C1) tickled Complainant
approximately 10 times, blocked Complainant's path as she was exiting the supply room after
retrieving supplies, and either asked for a kiss on his cheek or pointed to his cheek and said,
"[y]ou know what I want," approximately two to three times a week. Complainant testified
that in or about August 2009, when Complainant’s supervisor (S1)2 began his employment at
Ikego, Complainant told him that she was considering quitting because she "couldn't take it
anymore," that C1 would not listen to her when she would tell him to stop tickling her, and
about C1 cornering her, not letting her pass, and asking Complainant for kisses. Complainant
also testified that S1 told Complainant that he would take care of the matter and that she should
not have to quit, that S1 "took care" of C1's behavior, and the behavior "diminished."

The AJ concluded that Complainant's testimony that she reported C1’s conduct to S1 in or
about August 2009 is not credible, noting that in the portion of Complainant's investigative
declaration where she responded to questions regarding to whom she reported C1's conduct,
she twice stated that she spoke to S1 about C1's conduct on only one occasion in February or
March 2010. The AJ found Complainant’s declaration detailed and thorough. The AJ further
noted that it is not credible that, had Complainant told S1 in or about August 2009 that she was
considering quitting because of C1's conduct of tickling her, cornering her, blocking her path,
and asking for kisses, she would not have included and/or addressed this in her investigative
declaration. The AJ also concluded that Complainant's hearing testimony explaining why she
did not mention in her declaration having reported C1's conduct to S1 in August 2009 was not
credible or persuasive.

The first time that Complainant spoke to S1 about C1 was in February or March 2010,
immediately after C1 had blocked Complainant's path in the supply room and told her he
would not let her pass unless she gave him a kiss. Complainant had refused to do so and told
C1 to move, which C1 did do only after one of Complainant’s co-workers (C2) entering the
office. At that time, Complainant reported to S1 what had just occurred. S1 told Complainant
that because C1 had previously complained about S1 being too harsh with C1, rather than
dealing with C1 himself, he would speak to the Principal at Ikego (S2) so that S2 could address
the matter with C1. However, S1 did not, thereafter, inform S2 of the matter.

On June 16 or 17, 2010, when Complainant was in the supply room, C1 asked Complainant
for a "goodbye hug," since it was the end of the school term. C1 hugged Complainant in a
manner that made Complainant uncomfortable when he rubbed his hand up and down
Complainant's back. Complainant told C1 that she did not like his behavior, did not like him
tickling her, and did not like him touching her inappropriately. C1 apologized to Complainant.

2 In June 2010, S1 was terminated during his probationary period.
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Complainant did not report the incident to anyone. Later the same day, as Complainant was
passing by C1 on the way to her desk, C1 “slapped” Complainant on the arm with a single
letter-sized envelope. The "slap" had the minimal force of a “pat.” Complainant told C1 not
to do that and he then again "slapped" her arm with the envelope. S2 entered the office as C1
was "slapping" Complainant with the envelope the second time, and Complainant said to S2,
"see, [S2], look at his behavior, see what he's doing." S2 thought that both Complainant and
C1 were smiling, and did not think that anything inappropriate was occurring.

Complainant told S2 “many times” on unspecified dates that "[C1] was giving me a hard time
obtaining my supplies, if I was not nice to him," that she had to "stay there and listen to him or
answer - talk to him" in order to get supplies and that, if she did not do so, he would not give
her the supplies. Other teachers complained to S2 that they were having a hard time with C1,
felt that they should not have to entertain his small talk, or get supplies based upon whether C1
liked them or not on that particular day.

Prior to the July 15, 2010 incident discussed below, Complainant had not reported to S2 that
C1 had tickled her, asked for a kiss, cornered her, or engaged in other comparable
inappropriate conduct. Prior to July 15, 2010, no other employee reported to S2 that C1 had
blocked their path, asked them for a kiss, cornered them, or engaged in other comparable
inappropriate conduct.

July 15, 2010 to November 2010 - Harassing Acts and Responses

On Thursday, July 15, 2010, as Complainant was exiting the supply room, C1 stood in front of
Complainant and asked Complainant for a kiss. Complainant told C1, "No," and he then
moved to the side. As Complainant passed C1 to exit through the rear door, C1 grabbed and
squeezed Complainant's buttock. Complainant pulled away and asked C1, "What are you
doing?" and then proceeded to walk to her car. C1 responded, "Why? What are you going to
do about it?" Complainant responded that she was going to tell C1’s wife what he had done.
C1 responded that his wife "is the one who told [him] to get a girlfriend, so [he] could get off
her back."

On July 15, 2010, Complainant sent an e-mail to C1. The e-mail stated:

[C1], your behavior today was shocking and unacceptable. I thought when I
told you the last time you touched me inappropriately that I made myself clear
in that I did not feel comfortable and I do not ever want you to touch me like
that again [and] that you understood and respected that. It is obvious after you
cornered, grabbed, and squeezed my butt that you do not respect me or my
wishes. I felt violated and not taken seriously. More so, I am now more scared
to walk into your office by myself or to be alone in any room with you for fear
of what you may do next. I am upset at the fact that you are very much aware
of your actions yet you take this so lightly. ... What you did is sexual
harassment/assault. If that does not wake you up on how serious I am about this
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then you leave me no choice but to take this further if your behavior continues.
I should not have to feel uncomfortable and fearful at work because of this. I
have asked you to stop this behavior before and you apparently don't care and
went too far this time. Consider this a documented warning since my verbal
warning was obviously a joke to you. I want to work in a professional
atmosphere where everyone respects each other. Consider this matter carefully.

Also on July 15, 2010, Complainant sent an e-mail to S2 along with a forwarded copy of her e-
mail of the same day to C1. Complainant knew that S2 was on leave in the United States at
that time. S2 opened the e-mail on July 19, 2010. In her July 15, 2010 e-mail to S2,
Complainant stated "[S2], just to keep you in the loop of an incident that has occurred today.
Please view thread below and advise me with your thoughts. Please do not act without
consulting me first as I do not want anything misinterpreted."

On Monday, July 19, 2010, S2 opened and responded to Complainant's e-mail. S2 told
Complainant, in relevant part, "This totally crosses the line. How do you want me to handle
this? Since you told [sic] put me in the loop I do need to address it but it may be better in
person when I get back. That way I can get your side face to face." On July 19, 2010,
Complainant forwarded S2’s e-mail to the District Superintendent's Office (DSO). On July 19
or 20, 2010, S2 sent an e-mail to the DSO and let them know that there was a "concern" raised
by Complainant. On July 19, 2010, C1 came in to the main office where Complainant and C2
were working. C1 tried to engage Complainant in conversation. Complainant responded that,
as she had told him in the e-mail, "unless it's school related, I don't want to have any contact
with you." When Complainant ignored C1's further attempt to get her attention, C1 held up
the hose of a portable air conditioning unit, with air coming out, and held the hose
approximately four to five feet from Complainant's face.

On July 19, 2010, after the incident with C1, Complainant called the DSO because of C1's
conduct on July 15 and July 19, 2010. Complainant spoke with a secretary who told
Complainant that she would let the Assistant Superintendent (ASUP) know about the matter.
ASUP called Complainant later that day. Complainant told ASUP what had happened on July
15, 2010, and on that day.

On July 20, 2010, the Superintendent (SUP) and ASUP traveled to Ikego and met with
Complainant, C1, C2 and another co-worker (C3). Complainant told ASUP about what
occurred on July 15, about C1’s prior behavior, and that other teachers had similar experiences
with C1. ASUP interviewed Complainant first, then C1, and then spoke with Complainant
again. ASUP told Complainant that C1 had admitted to asking for a kiss, but said he was just
joking and that he did so with other employees and that they knew he was joking. ASUP also
told Complainant that C1 admitted that his hand had touched Complainant's buttock but denied
grabbing Complainant and asserted that his hand “just grazed" Complainant as he was walking
out.

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ASUP ordered Complainant and C1 to remain apart, and C1 was told not to go the main office
except "for mail." On July 21, 2010, ASUP sent a written memorandum by electronic mail to
Complainant, C1, C2 and C3 wherein ASUP stated, in relevant part:

As we discussed yesterday, it is my expectation that each of you will conduct
yourself in a professional manner and with minimal interaction until S2's return
to the school. I asked you if it was reasonable to limit interaction; you each said
it was reasonable. In order to avoid any further allegation of inappropriate
work relations, I am directing each of you to respect each other’s [sic] work
area by staying in your own assigned work space. [Complainant], [C1] and
[C2], you will stay in the "main office" area. [C1], you will stay in the Supply
room. [C1] will enter the main office on Mondays, Wednesdays and Fridays
for mail runs only. Each of you is reminded to contact [SUP] or myself if you
find that this plan does not work or if it interferes with the [Agency’s] mission.
Failure to comply with this directive may result in disciplinary action. You
were notified of this directive orally yesterday. This message has been sent
requesting "read receipt" through Outlook. That will serve as proof that you
have also received written notification.

On July 21, 2010, C1 came in to the main office, stood next to Complainant's desk, and spoke
to Complainant. After he left, Complainant called ASUP to inform her that C1 had entered the
office. ASUP told Complainant that she would make sure that C1 understood the directive.
On July 21, 2010, ASUP ordered C1 to go into the office to collect mail only on Mondays,
Wednesdays, and Fridays and not to have contact with Complainant. On Mondays,
Wednesdays, and Fridays, Complainant left work at 1:30 p.m.

On July 21, 2010, Complainant provided ASUP with written statements from other co-workers
(C4 and C5) regarding their interactions with C1. In her statement, C4 stated, in pertinent
part, that since 2007, every time she went into the supply room, she would "get flirting from
[C1]," that he would ask her what she would give him for supplies, that a few times he would
block her way out and ask for a hug, and that it was an uncomfortable situation and wished she
had spoken up sooner. In her statement, C5 stated that she was frequently harassed by C1
from 2006 through 2010, but especially during the 2009-2010 time-frame. C5 also stated that
C1 would corner her and block her way, getting really close in her personal space as if leaning
in to kiss her. In addition, C5 stated that when she would "cringe" and tell him to move, he
would say “come on” and point to his cheek referring to her giving him a peck. C5 also stated
that when she asked for supplies, C1 would ask "what are you going to give me?" or "it's
going to cost you;" that he regularly insinuated that he wanted to meet her in the back of the
supply room where no one would see them; and that he made inappropriate comments and
stared at her.

On July 22, 2010, C1 went into the main office again. Complainant called ASUP and told her
that C1 was trying to scare and intimidate her. ASUP told Complainant that she would call C1
and remind him to stay in his respective work space.
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On July 23, 2010, ASUP sent an e-mail to Complainant, C1, C2 and C3, stating that as of
Monday, July 26, 2010, Complainant, C2 and C3 would be relocated to the Izuma Tower at
Ikego for the hours after 11:00 a.m., since the air conditioning system (AC) was not working
in the main office, and that C1 would move into the "IC" to in-process books. Twenty minutes
later ASUP sent a follow-up e-mail stating that she wanted to reiterate the directive she sent
earlier in the week that each of them is expected to stay in their respective work space and that
reassigning the work space due to the lack of AC does not negate that directive.

In her investigative statement, Complainant stated that on July 26, 2010, C1 "entered the room
[she] worked in and [she] was alone at that time. He came within a few feet hovering over
[her], taunting [her], and trying to intimidate [her] until [C3] arrived and entered the room and
then he left." The AJ notes that at the hearing, Complainant testified that on July 26, 2010, C1
was in the office where Complainant was alone, and then after the son of one of the teachers
came in to pick up some boxes and then left, C1 came behind Complainant and was trying to
scare her until C3 entered the office and told C1 that he was not to be in the office.

However, in a July 26, 2010 e-mail to ASUP, the AJ notes that Complainant did not state
anything about C1 "hovering" over Complainant, "taunting" Complainant, going behind
Complainant in an effort to scare her, or C1 being present when Complainant was the only
person in the room. Complainant stated the following in her e-mail:

Thank you for permitting us to work out of the Izumo tower during the
afternoons. It is nice and cool. : ) I have read the [e-mail] thread below and
you stated, "Reassigning the work space due to the lack of AC does not negate
that directive." From my understanding, the directive stands in all areas/work
spaces as mentioned including Izumo Tower. Am I misunderstanding your
email? I am asking because C1 came in to the Izumo Tower classroom with C2
a little after 12:00 p.m. He stood about eight feet away from me while talking
to one of our teacher's son. I feel as though he is doing this on purpose to put
me on edge, make me nervous, or provoke me. I felt nervous today and don't
trust him near me as it is not his first time and [it] seems to me that he is doing
this intentionally. I don't like the feeling of having to be on guard all the time
and had a sense of relief when I saw that I would be working out of the tower in
the afternoon and not so close to his office. It is apparent that you are trying
your best to ensure that nothing escalates any further so I don't understand why
he is not following the instructions. Please let me know if I am the one who is
misunderstanding your email. Thank you in advance.

The AJ concluded that because the information Complainant provided to ASUP in her e-mail
differs in some respects from Complainant's investigative statement and hearing testimony, her
testimony is not entirely credible. Accordingly, the AJ found that what occurred on July 26,
2010, and Complainant's reaction thereto, is as was described by Complainant in her email of
that date to ASUP. On July 26, 2010, Complainant also called ASUP to ask her if
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Complainant had misunderstood the e-mail and whether C1 was not to enter the work spaces as
he did. ASUP responded that C1 was not to enter Complainant's work space and vice versa.
ASUP then spoke with C1 to make sure that he understood that he was not to go to Izuma
Tower.

On July 27, 2010, S2 sent an e-mail to Complainant and asked if she could meet with him on
July 28, 2010. On July 28, 2010, while still on leave, S2 went to Ikego to meet with her and
to check on the status of construction and air conditioner repairs that had been done at Ikego
over the summer. S2 met with Complainant at that time and informed her that he would be
conducting the investigation. Complainant told S2 what happened on July 15 and 19, that C1
was violating the directive by still coming into her work space, and that she knew that C1 had
"swatted" the buttock of another teacher.

S2 officially returned to work on August 3, 2010, and began the "pre-action" investigation of
the harassment reported by Complainant. On August 3, 2010, S2 interviewed Complainant
and C1 regarding what had occurred on July 15, 2010, and regarding their working
relationship. Complainant told S2 about the July 15 and 19 incidents, that C1 had, in the past,
tickled Complainant, made sexual innuendos, and had cornered Complainant and asked for a
kiss. Complainant told S2 that she wanted something done so that she would be "safe." S2
told Complainant that he was going to investigate the situation and would take care of the
problem. S2 directed C1 not to go into the main office, except to pick up mail, and told
Complainant not to go into the supply room. On August 3, 2010, S2 sent an e-mail to
Complainant and C1. S2 stated in the e-mail that ASUP's July 21 directive to stay in their
respective work areas "is still in place and will remain in place until I change it." The email
stated:

[C1] is not to come into the office when [Complainant] is here. He may only
enter to pick up items for a mail run on Monday, Wednesday, and Friday.
When he does so he is to not have any interaction with [Complainant]. If [C1]
needs to use the fax machine or any items in the main office, he will do so after
[Complainant] leaves on her early days (Monday and Friday at 1:30 p.m.,
Wednesday at 1:15). If [C1] needs to speak with [C2] or me when
[Complainant] is here he may call and we will then go to the supply room to talk
with him. [Complainant] is not to go into the supply room for any reason
whatsoever. Failure on both parties['] part to abide by this direction will result
in disciplinary action.

Complainant spoke with S2 on August 4, 2010, and told him that she did not feel protected by
his e-mail to C1 telling him to stay away from her work area considering that C1 had violated
the same directive from ASUP. S2 told Complainant that he would talk to C1 about the
matter.

On August 4, 2010, C1 came to Complainant's work area and stood behind her and asked if
there was any mail for him to take out. C1 stopped asking after Complainant shook her head
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to indicate "no." Complainant then contacted S2 to see if he had spoken to C1, S2 responded
that he had forgotten to do so. When Complainant informed S2 on August 4, 2010, that C1
had come into the front office, S2 spoke to C1 and "strengthened" the directive. On August 6,
2010, C1 began leave that was to last until August 23, 2010. C1 was on leave from August 6
through Friday, August 20, 2010. Upon his return to work on Monday, August 23, 2010,
C1’s duty hours were changed to 4:30 p.m. to 1:30 a.m., so that he would not be in the
building at the same time that Complainant was in the building.

On August 23, 2010, Complainant was detailed to work at Yokosuka Middle. Prior to
returning to work on August 23, 2010, C1 had already been given an offer of employment in
the United States as part of a priority placement process (PPP) resulting from him being
beyond his five-year term in Japan. S2 authorized C1 to go to Yokosuka Middle School on
August 23, 2010 to meet with the Human Resource Specialist (HR) regarding the paperwork
and other requirements for C1's pending move. S2 called Complainant on her cell phone to
"warn" Complainant that C1 was going to be at Yokosuka to meet with HR and that she should
not be there at the time when C1 was there.

Although S2 left the message on Complainant's cell phone prior to the time that C1 was going
to be at Yokosuka, Complainant did not retrieve the message before seeing C1 in the parking
lot when, as Complainant was departing the lot along with three teachers with her in the car,
C1 was in his car and waiting as Complainant pulled out of the parking spot so that he could
use the spot. When Complainant returned to Yokosuka, she called S2 to report that C1 had
been at Yokosuka. S2 told Complainant that he had authorized C1 to go to Yokosuka to speak
with HR.

From August 24, 2010, to the time that Complainant left Japan, Complainant did not see or
have any contact with C1, except for seeing C1 driving to or from work. On or about
September 1, 2010, Complainant spoke to an EEO Counselor and told him that she was not
going to return to work unless she was moved to another school. Complainant requested and
was granted paid administrative leave from September 2 through 17, 2010, while the transfer
was being arranged. On September 17, 2010, Complainant requested to SUP that she be
laterally detailed to Kinnick High School, which was separate from Ikego. On September 17,
2010, SUP approved Complainant’s request and notified her that she would be detailed to
Kinnick effective Monday, September 20, 2010.

When Complainant returned from administrative leave on September 20, 2010, she reported to
Kinnick High School. On September 3, 2010, S2 submitted a written request to the Agency's
Human Resources Division in Guam that they issue a 10-day suspension to C1 for his conduct
on July 15, 2010, and the other harassing conduct reported by Complainant and other Ikego
employees. On September 9, 2010, S2 issued to C1 a Notice of Proposed Suspension of 14
days without pay based on his conduct on July 15, 2010. On October 21, 2010, SUP issued a
Notice to C1 suspending him without pay for 14 calendar days based on his conduct on July
15, 2010. On November 5, 2010, S2 issued a Notice of Separation to C1 to be effective
November 8, 2010, which informed C1 that his tour of duty had expired without extension and
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that he was not eligible to be registered with the PPP because he was found to have engaged in
misconduct.

In or about late July 2010, Complainant filed a complaint with the Navy regarding C1's July
15, 2010 conduct. Following an investigation, the Navy notified C1 on September 20, 2010,
that, effective, October 8, 2010, C1 would be barred from entering all bases and facilities
which were part of the Navy's Fleet Activities, in Yokosuka, including lkego Elementary
School.

S2’s Knowledge of C1’s Conduct

Prior to Complainant reporting to S2 the July 15, 2010 incident, S2 received one report that
C1 had acted inappropriately towards a staff person. S2 testified that: (1) on an unspecified
date, the faculty representative at Ikego told S2 during a meeting that there had been
"questionable behavior" by C1; (2) when S2 followed up a week later with the representative,
he was told that the faculty member had handled the situation and did not want S2's "support
or involvement" regarding the matter; and (3) the representative did not discuss with S2 the
details or nature of the "questionable" conduct.

Complainant testified at the hearing and asserted in her investigative declaration that: (1) she
met with S2 on July 28, 2010, she told him that she was aware that other teachers and
employees had experienced similar harassment from C1 and that she knew that C1 had
"swatted" another teacher's buttock; and (2) she told S2 that she did not want to tell S2 the
teacher's name without first checking with the teacher and the teacher's union representative
(U1). S2 named the teacher and said he knew from U1 that C1 had "swatted [C6’] butt in his -
in his supply room," and that he did not do anything about the matter because U1 had told him
she took care of the matter.

The AJ credited Complainant's testimony on this point over S2's testimony to the extent that it
is found, as a fact that S2 was aware that C1 had attempted to "swat" C6's buttocks with some
papers he was holding. However, the AJ also concluded that the action was not communicated
to S2 as being an act of harassment based on C6’s sex, and that U1 told S2 that C6 had taken
care of the matter and did not want S2 to do anything regarding the matter.

Prior to July 15, 2010, S2 saw C1 point to his cheek three to four times and then smile. C1
did not verbally ask for a kiss but S2 understood that C1 pointing to his cheek was a non-
verbal request for the same. Each of the instances observed by S2 occurred in a group setting.
Prior to Complainant's July 15, 2010 complaint, no one complained to S2 about C1's actions
of doing so. On one occasion at a group meeting where it was announced that Complainant
would be taking leave for a few days and that S1 would handle certain of Complainant's duties
in her absence, C1 commented that S1 "won't look as good in a skirt as you do." S2 was
present at the meeting. S2 did not perceive, and was not told by Complainant, that
Complainant was offended by C1's comment.

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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

The AJ concludes that Complainant established the first four elements of a prima facie case of
sex harassment. Specifically, the AJ finds that Complainant belongs to a statutorily protected
class based on her sex; she was subjected to unwelcome or offensive comments, acts, and
conduct related to her sex; the harassment complained of was based on her sex; and the
conduct created a hostile working environment for Complainant.

The AJ also concludes that liability cannot be imputed to the Agency for C1's conduct on July
15, 2010, and/or thereafter because, although the Agency knew of the alleged misconduct as of
July 15, 2010, the Agency took immediate and appropriate corrective action.3 Specifically, the
AJ notes that prior to July 15, 2010, the only matters reported to or observed by S1 or S2
regarding C1's conduct and statements were the following: (1) the report to S1 in February or
March 2010 that C1 had blocked Complainant's path in the supply room and would not let her
pass unless she gave him a kiss, Complainant refused to do so and told C1 to move, and C1
did so upon C2 entering the office; (2) the observation by S2 on June 16 or 17, 2010 of C1
"patting" or mildly "slapping" Complainant on the arm with an envelope; (3) the report to S2
on unspecified dates that C1 gave Complainant and other employees a "hard time" obtaining
supplies if they were not nice to him and employees having to listen to and talk to C1 and
"entertain his small talks" in order to get supplies; (4) the report to S2 on an unspecified date,
that C1 attempted to "swat" C6 on her buttocks with papers he was holding; and (5) the
observation by S2, on three to four occasions in group settings, of C1 pointing to his cheek as
a non-verbal request for a kiss, and on one occasion C1 commenting that S1 would not look as
good in a skirt as would Complainant.

The AJ concludes that the Agency is not liable for not taking action prior to July 15, 2010, to
address C1's conduct up to that date. According to the AJ, most of the matters reported to S2
were not reported as being actions which were harassment based on sex (e.g., the complaints

3 The AJ also finds insufficient evidence of retaliation.

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regarding the difficulty obtaining supplies) and were not actions which were sufficiently severe
or pervasive to create a hostile work environment. The AJ further concludes that while the
matter of Complainant's path being blocked and C1 asking Complainant for a kiss in order to
pass was highly inappropriate, the single instance reported to S1 was not sufficiently severe to
constitute unlawful harassment. Further, the AJ notes that C1’s conduct and statements prior
to July 15, 2010, which were reported to or observed by the Agency were not sufficient to
place the Agency on notice that it was likely that C1 had the propensity to engage in the
sexually harassing conduct that he did on July 15, 2010. Thus, the AJ concludes that the
Agency cannot be held liable for not taking action against C1 prior to July 15, 2010.

The AJ also concludes that the actions taken after Complainant reported C1's conduct on July
15, 2010, were immediate and appropriate under the circumstances, and were effective in
preventing further acts of prohibited harassment of Complainant. As to the immediacy of the
Agency's actions, the AJ notes that ASUP and SUP conducted a preliminary investigation on
July 20, 2010, and on that date directed C1 to limit his interaction with Complainant and not to
enter her work area except on Mondays, Wednesdays, and Fridays for mail runs only. The
AJ notes that although it is clear that on four occasions, C1 violated the directive not to enter
Complainant's work space except for mail runs on Mondays, Wednesdays, and Fridays, it is
undisputed that after July 19, 2010, C1 did not have any physical contact with Complainant or
engage in any inappropriate physical conduct and did not make any inappropriate statements or
comments to Complainant.

While Complainant asserts that the corrective actions taken by the Agency were not
appropriate or effective because C1 was present on four occasions in the office where
Complainant worked, the AJ finds that considering the circumstances of the conduct
complained of by Complainant and because there were no further instances of C1 either having
any physical contact with Complainant or making any inappropriate statements or comments to
Complainant, the Agency's actions were appropriate and effective.

Specifically, the AJ notes that the totality of Complainant's interactions with C1 after July 19,
2010, which Complainant contends establishes that the Agency's actions were not effective
were the following: (1) on July 21, 2010, C1 was in the main office, stood next to
Complainant's desk and spoke to C2; (2) on July 22, 2010, C1 went into the main office and
gave "dirty looks" to Complainant; (3) on July 26, 2010, when Complainant was sitting at her
desk, C1 entered the office and stood approximately eight feet from her while he talked to the
son of another teacher; (4) on August 4, 2010, C1 came into Complainant's work area and
stood behind her and asked if there was any mail from him to take out; and (5) on August 23,
2010, as Complainant was backing her car out of her parking space at a school where she was
detailed to work for two days, she saw C1 in his car waiting to park in the parking space she
was vacating.

The AJ notes that while it is clear that Complainant preferred not to have C1 in her presence at
all, and the Agency's actions did not achieve that result, the Agency's actions were effective in
eliminating the harassment of which Complainant complained. The AJ further notes that after
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August 4, 2010, there was no contact between Complainant and C1 nor was C1 in
Complainant's presence.

Upon review of the record, we agree with the AJ analysis and conclusions and find his
credibility determinations supported by substantial evidence in the record. We note that, on
appeal, Complainant identifies no factual errors made by the AJ and offered no analysis of the
evidence in her assertion that the AJ erred in the conclusions reached.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the AJ’s decision in favor of the
Agency.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 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
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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.

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

November 15, 2016
Date