0120160381
04-19-2016
Blanca B.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Blanca B.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120160381
Hearing No. 470-2015-00110X
Agency No. 63-2014-00132
DECISION
Complainant filed an appeal from the Agency's August 28, 2015, 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. The Commission accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Statistical Phone Analyst Interviewer at the Agency's Jeffersonville Contact Center facility in Jeffersonville, Indiana.
On August 20, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her on the bases of sex (not conforming to sexual stereotypes) and religion (Baptist) to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. References have been made about her being "gay."
2. While speaking to a female interviewer, someone yelled out, "She's mesmerized by those lips." Then other co-workers laughed, including the Supervisor.
3. References have been made about her hair and her "smell."
4. Female employees walk past her desk and stand behind her while she types and does her work.
5. On one occasion, someone walked by her and farted on her and then her clothes were sprayed with cleaning products.
6. Every day a female employee claimed to have a picture of her and sent people over to her desk.
7. A female co-worker had one of her "minions" sit in a seat opposite her desk in order to kick/push the desk/work area so that the whole area would move.
8. A female co-worker started saying that she (Complainant) was going to bring a gun to kill her and "shoot up the place."
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 requested a hearing. The AJ issued the parties an Acknowledgement Order which warned the parties about sanctions for failing to follow orders issued by the AJ. Among other options, the AJ indicated that he could sanction the parties by cancelling the hearing.
The record indicated that the Agency provided Complainant and the AJ with discovery requests, interrogatories, and a list of proposed witnesses. Complainant failed to respond to the requests for documentation or the interrogatories. The AJ granted the Agency's motion to compel Complainant to engage in discovery and indicated to the parties that failure to comply with the AJ's motion could result in a sanction. The AJ issued a Settlement and Conference Order dated March 23, 2015, setting the conference for May 20, 2015. As part of the order, Complainant was to provide a phone number where she could be reached. Complainant failed to do so nor did she appear at the conference. The AJ attempted to contact Complainant at the number she had previously provided but to no avail. The AJ noted that the number was no longer in service. Due to Complainant's failure to appear, the AJ ordered Complainant to provide a reason for not complying with the conference order by June 20, 2015. On July 13, 2015, the AJ held another prehearing conference to discuss Complainant's failure to comply with his previous orders and her failure to respond to discovery requests. The AJ noted that Complainant was argumentative and combative during the prehearing conference. Based on her failure to comply with orders and her combative responses during the prehearing conference, the AJ determined that the matter should be dismissed from the hearing process. By order dated July 22, 2015, the AJ remanded the complaint to the Agency, and 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. The Agency noted that Complainant stated a claim of sex discrimination actionable under Title VII. The Agency determined that Complainant failed to allege events which were severe or pervasive enough to create a hostile work environment. As such, the Agency concluded that Complainant did not show that she was subjected to harassment based on her sex and/or religion. This appeal followed.
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").
Dismissal of Hearing by the AJ
On appeal, Complainant asserted some concern over the AJ's conduct. We note that Complainant did not challenge the AJ's characterization of her conduct nor did she challenge the AJ's assertions regarding her lack of cooperation with his orders.
An EEOC AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Upon review of the record, we find that the AJ's dismissal of the hearing and remand of the matter to the Agency for a final decision was appropriate.
Harassment
It is well-settled that harassment based on an individual's sex and/or religion is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes; (2) she was subjected to unwelcome conduct related to her membership in those classes; (3) the harassment complained of was based on sex and/or religion; (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. See Henson v. City of Dundee, 682 F.2d 897 (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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
As an initial matter, we find that the Agency correctly determined that Complainant has stated a claim of discrimination covered by Title VII on the basis of sex stereotyping. The Commission has held in a number of cases that sexual orientation claims are covered by Title VII. See Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (decision by the Commission holding that a claim alleging discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII); Complainant v. Dep't of Transp., EEOC Appeal No. 0720140023 (July 24, 2014) (affirmed Administrative Judge finding of harassment based on sexual orientation); Brooker v. U.S. Postal Serv., EEOC Request No. 0520110680 (May 20, 2013) (the Commission found that Complainant stated a valid harassment claim based on sex stereotyping); Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873 (July 1, 2011) (Complainant's allegation of sexual orientation discrimination was a claim of sex discrimination because it was based on the sex stereotype that marrying a woman is an essential part of being a man).
Complainant listed a series of events which she believed created a hostile work environment based on her sex and religion. On appeal, she asserted that the events led to her resignation form the Agency. However, upon review of the record, we find that Complainant failed to provide any additional information beyond the listing of the events. Complainant did not indicate all the names of the alleged harassers or "minions" who purported kicked her, made references to her being "gay," "farted" on her, or stood behind her. Complainant provided two names to the investigator of coworkers. One coworker averred that she would only nod or smile at Complainant. She did not recall engaging in conversations with Complainant. The other coworker who allegedly made comments about Complainant's lips denied the assertion. Both coworkers did not recall Complainant by name and only recognized her when they were shown a picture of her. Management averred that they had not been made aware of any of these events nor were they aware that any alleged activity had occurred. One supervisor (gay, Baptist) noted that he did not see anyone speak with Complainant regularly nor make jokes with or at her. The other supervisor (straight, not religious) indicated that Complainant was a very quiet person who did not even say "hi" or "bye" to him or to coworkers. He too denied witnessing any of the alleged statements.
Based on the totality of the record, we find that Complainant has not established that the alleged events occurred as she alleged. As such, we determine that Complainant did not show that the alleged events were severe or pervasive enough to create an intimidating, hostile, or offensive work environment. Therefore, we conclude that Complainant has not shown that the alleged actions constituted a violation of Title VII.
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 (M0815)
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, 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 (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
April 19, 2016
__________________
Date
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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