Complainant,v.Arne Duncan, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Aug 15, 2013

0120111258 (E.E.O.C. Aug. 15, 2013)

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

,
Complainant,

v.

Arne Duncan,
Secretary,
Department of Education,
Agency.

Appeal No. 0120111258

Agency No. ED-2010-OS-0014

DECISION

On December 16, 2010, Complainant filed an appeal from the Agency’s November 16, 2010,
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 MODIFIES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program and
Management Analyst, GS-14, with the Office of the Secretary, Risk Management Services
(RMS), on the Program Risk Management and Monitoring Team (PRRMT) located in
Washington, D.C. From October 2007 through November 2009, Complainant’s first level
supervisor was the Supervisory Program and Management Analyst and Team Leader for the
PRRMT (Person A). Beginning in November 2009, the Senior Advisor to the Director, RMS
(Person B) became Complainant’s first level supervisor. Since 2007, the Deputy Director,
RMS, Supervisor Program Analyst (Person C), has been Complainant’s second level
supervisor. During the relevant time Person D was the Director, RMS, and Complainant’s
third level supervisor.

Complainant filed an EEO complaint dated January 26, 2010, alleging that the Agency
discriminated against her and subjected to harassment on the bases of race (African-American),
sex (female), disability (hearing impairment), and in reprisal for protected EEO activity
(opposition to alleged discriminatory conduct) when:

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1. Beginning in October 2007, Complainant was subjected to inappropriate behavior
on a daily basis by her first level supervisor (Person A) including: 1) kissing her on
the face near her mouth; 2) rubbing up against her; 3) hugging her closely; 4)
stroking her back, arms, and neck; and 5) putting his arms around her waist, on her
arms, her shoulder, and lower back;
2. From March to July 2008, Person A avoided speaking and meeting with
Complainant;
3. In September 2009, Complainant received an angered response when she told her
first level supervisor that she needed to telework because she was pregnant;
4. In February 2008, Complainant was told by her first level supervisor that she was
“acting pissy”;1
5. From October 2007, to December 2008, Complainant had grade sustaining duties
removed and she was reassigned work which was below her grade level;

6. From November 2009, to the present, Complainant was placed on a detail under
Person D, who has required Complainant to perform clerical duties and work
assignments that she is unfamiliar with;
7. On October 21, 2009, Complainant received a “Minimally Successful” Education
Department Performance Appraisal System (EDPAS) rating;
8. In November 2009, Complainant was forced to enter incorrect FY 2010 EDPS
standards into the computer system;
9. In March 2009, October 2009, and again in November 2009, Person D denied
Complainant’s request to be reassigned to the Grants Policy and Procedures Team;
10. In January/February 2008, Person A told Complainant that he would not hire
Complainant if she applied to a GS-14 vacancy announcement; and
11. In August 2008, Complainant was not selected for a GS-14 policy position on the
Grants Policy and Procedures Team within the Risk Management Service.2

On March 16, 2010, the Agency found issues (10) and (11) were discrete acts of
discrimination. The Agency dismissed issue (10), pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The Agency noted that Complainant did not actually apply to the
vacancy at issue, thus it found she was not harmed. Alternatively, the Agency stated that even
if Complainant had applied for the vacancy, the incident was not raised with an EEO
Counselor within the applicable time frame. Additionally, the Agency dismissed issue (11),
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency
noted that Complainant learned of the non-selection more than 45 days before her contact with
an EEO Counselor. The Agency accepted the remaining issues for processing.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a

1 Although the Agency decision listed issue (4) as occurring in November 2009, in her rebuttal
to Person A’s Affidavit, Complainant clarified that this incident occurred in February 2008.
2 We have renumbered the incidents identified in the Agency’s November 16, 2010 decision.
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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.

In its final decision, the Agency determined Complainant failed to establish all the elements of
a hostile work environment sexual harassment claim. Specifically, with regard to the alleged
inappropriate behavior, the Agency found Complainant presented evidence that she belonged to
a protected class; was subjected to unwelcome physical conduct of a sexual nature; and that the
harassment complained of was based on sex. However, the Agency determined that
Complainant failed to establish that the harassment was sufficiently severe or pervasive to
affect a term or condition of employment and/or that the harassment had the purpose or effect
of creating a hostile work environment. The Agency noted there were no witnesses to
substantiate the allegedly appropriate behavior. The Agency found that Complainant’s account
of the events described was not credible. For example, the Agency noted that with respect to
her alleged angered response she received from Person A when she requested to telework from
home due to her pregnancy, she had not provided any evidence to substantiate her claim.
Rather, the Agency noted that it had accommodated her request to work from home and that
Person A asked her to make the request well in advance the next time.

The Agency noted that in a case where no tangible employment action was taken, the Agency
can raise an affirmative defense to liability subject to proof by a preponderance of evidence.
The Agency determined it exercised reasonable care in reassigning Complainant from the
direct supervision of Person A in order to prevent and correct promptly any sexually harassing
behavior, and that Complainant was unreasonable in failing to take advantage of new
supervision provided by her employer.

With regard to her claims surrounding the assignment of duties, the Agency found
Complainant did not present sufficient evidence to demonstrate unlawful discrimination. The
Agency claimed the evidence showed Complainant was not treated any differently than other
employees in this regard. The Agency noted Complainant was encouraged to be flexible with
her assignments and discuss her work with her supervisor. Moreover, the Agency stated it
acted appropriately in assigning her to a detail while the Agency conducted its investigation
into her claims of discrimination.

With regard to her claims about her EDPAS standards and rating, the Agency acknowledged
that Complainant’s performance changed significantly from her last rating in which she
received a “Highly Successful” in rating period October 1, 2007, to September 30, 2008,
compared to her rating for the period October 1, 2008, to September 30, 2009, in which she
received a “Minimally Satisfactory.” The Agency argued Complainant failed to provide
evidence to substantiate her claims.

With regard to her claim that the Agency denied her requests to transfer, to be detailed or
reassigned to the Grants Policy and Procedures Team, the Agency determined that
Complainant failed to establish a violation with respect to this claim. Moreover, the Agency
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noted that Complainant was non-responsive in her affidavit and failed to present any evidence
with regard to this claim.

On appeal, Complainant notes that in October 2007, she was asked by Person A to serve with
him in the Office of the Secretary, RMS. She states that soon after she accepted the position,
Person A began subjecting her to inappropriate touching including: rubbing up against her;
hugging her closely; stroking her back, arms, and neck; and putting his arms around her waist
and lower back. Complainant alleges that Person A hugged her frequently and kissed the side
of her mouth or cheek when he greeted her each day. She states that he would occasionally
put his hand on her lower back, near her buttocks, or rub her arm. She also claims that when
he would open the door for her, he would place his hands on her lower back. Complainant
states that Person A also rubbed her shoulders in an up and down motion. She notes that when
Person A came to her office or was in the office seated in a chair, he would stand near her and
look down her blouse. She states that if they were sitting across the desk from one another he
would look at her chest. Complainant states that Person A would call her such names as,
“Sunshine” or “Beautiful.” Complainant states that despite her complaints to upper level
supervisors, this action continued for two years.

Complainant alleges that she complained to Person C about Person A’s inappropriate behavior
in February 2008, and requested a reassignment. Complainant claims that Person C told her
she did not believe Complainant and that Complainant should seek other employment if she
was unhappy with her current job. Complainant explains that in March or April of 2009, she
told Person E (Director of the Grants and Service Team, RMS) of the inappropriate physical
action from Person A. Complainant states that Person E told her to report Person A’s
behavior to Person B. Complainant also notes that she told Person F (Grant Policy and
Procedures Team Leader, RMS) that she had experienced inappropriate physical touching from
Person A. Additionally, Complainant alleges that she told Person D in March 2009, about the
inappropriate touching and asked that he reassign her to another section within the Department.
She states that she met with Person D in October 2009, again about harassment and
reassignment.

Complainant claims she established a claim of sexual harassment since she was a member of an
EEO protected class by virtue of her sex, female. She states that she experienced unwelcome
conduct related to her sex, as evidenced by Person A’s daily behavior of: kissing her on the
face near the mouth; rubbing up against her; hugging her closely; stroking her back, arms, and
neck; and putting his arms around her waist, on her arms, her shoulder, and lower back.
Complainant claims this conduct was based on her sex and was unwelcome. Complainant
notes that only females were subjected to hugs, being called “Sweetie” and “Sunshine” by
Person A. Complainant also states that the frequency and severity of Person A’s unwelcome
physical contact rose to the level of harassment.

Complainant acknowledges that the Agency argues that her account of the events is not
credible and unsubstantiated. Complainant notes that Person A submitted a sworn affidavit that
he never hugged Complainant closely, stroked her back, arms, or neck; and never put his arms
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around her waist, arms, shoulder, or lower back. Complainant also notes that in a private
session with an Employment Relations Specialist, Person A admitted to “putting his arm
around [Complainant’s] shoulders, and sometimes around her waist in the morning” to greet
her. Complainant also notes that five other individuals acknowledged that Complainant told
them that she was being inappropriately touched by Person A.

Complainant argues that as Person A is a supervisor, the Agency is vicariously liable for the
actionable hostile work environment. Complainant contends the Agency does not have an
affirmative defense when the supervisor’s harassment culminates in a tangible employment
action, such as the undesirable reassignment in the present case. Additionally, Complainant
contends that liability ensues because management became aware of the allegations of
harassment and did not take prompt remedial action.

Moreover, Complainant contends that she has established that she was subjected to retaliation
when she was rated “Minimally Successful.” Complainant states she engaged in protected
EEO activity when she opposed harassment from Person A and when she indicated that she
wished to file an EEO Complaint on November 3, 2009. She notes that she complained to
Person B, Person D, and Person F which she claims shows that management officials were
aware of her protected activity. Complainant notes that she was subjected to an adverse action
when she was rated “Minimally Successful” in October 2009. Complainant acknowledges that
as a result of the union’s intervention and because Person A failed to follow Agency
procedure, her review was ultimately changed to “Successful.” Complainant states there is a
causal connection between her EEO activity and the “Minimally Successful” rating because she
advised management of harassment by Person A in February 2008, March 2009, and October
2009, and less than a month later, she was subjected to retaliation when Person A issued her a
“Minimally Successful” rating

Finally, Complainant contends that the Agency failed to properly analyze her claims of denial
of requests for reassignment to the Grants Policy and Procedures Team, non-selection,
performance of EDPAS issues, and assignment of duties. Complainant requests that these
issues be remanded to the Agency for further review.

In response to Complainant’s appeal, the Agency argues that none of the affidavits submitted
by its management officials corroborate Complainant’s allegation that she advised management
of the alleged misconduct beginning in 2008.3

3 We note the Agency brief listed the year 2007; however, this appears to be in error as
Complainant stated that she first advised management of the harassment in 2008.
The Agency notes to the contrary, the affidavits
all indicate that management officials were not aware of those allegations until November 5,
2009, when they were first raised in a meeting with Union officials and management.
Moreover, the Agency states it took swift and decisive action to respond to Complainant’s
allegations as soon as they were advised of the situation in 2009. Specifically, the Agency
notes that upon learning of the harassment allegations, management allowed Complainant to be
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placed on administrative leave and permanently transferred her to another office under a
different supervisor.

In addition, the Agency argues that with regard to the allegations of inappropriate behavior,
Complainant failed to establish the harassment was sufficiently severe or pervasive to affect a
term or condition of employment or that the harassment had the purpose or effect of creating a
hostile work environment. The Agency states that even assuming the incidents occurred as
alleged, the Commission has found that a few isolated incidents of alleged harassment usually
are not sufficient to state a claim of harassment. The Agency notes that Complainant’s
corroborating evidence on the issue of a hostile work environment consists of statements
provided by a few co-workers. The Agency claims it is a stretch to view these
communications as indicative of an environment where sexual harassment and a hostile work
environment were the norm.

The Agency contends that it put forth evidence on the issue of Complainant’s performance
review. The Agency notes its evidence shows that Complainant was made aware of her
performance issues during her mid-point review in April 2009, where she was told that she
was performing at the “Minimally Successful” level. The Agency notes this contrasts with
Complainant’s claim that she was retaliated against when Person A issued her an unsupported
“Minimally Successful” rating.

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. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

At the outset, we find the record in the present case was adequately developed. Additionally,
we find the Agency properly dismissed issues (10) and (11). We note that these claims were
discrete incidents and that they were properly dismissed on the grounds of untimely EEO
Counselor contact.

Issues (1) – (6)

We note that Complainant is alleging that she was subjected to harassment with regard to the
incidents identified in her complaint. In his affidavit, Person A stated that the incidents
described in issue (1) never occurred and he stated that he did not engage in the conduct
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described by Complainant. With regard to issues (2) and (3), Person A stated that this was not
an accurate description of his behavior.

With regard to issue (3), Person C stated she was not aware of an angered response to
Complainant’s request to telework. However, Person C produced an electronic mail message
dated August 27, 2009, in which Complainant notified Person A at 6:10 a.m. that she would
be working from home that day and the next day. The record reveals that in response, Person
A informed Complainant that in the future she should inform him in advance when she would
be working from home. Person C noted that at this time she and Person A identified two
projects she could work on at home and that she was allowed to telework on these two
projects.

With regard to issue (4), Person A denied making this statement to Complainant. In her
affidavit, Person C noted that in February 2008, Complainant and Person A each brought it to
her attention that Person A had said to Complainant she was “acting pissy.” Person C noted
that she had a formal conversation with Person A regarding his language and asked him to
apologize to Complainant. Person C noted that Complainant acknowledged Person A had
apologized for making this statement.

With regard to issue (5), Person A denied Complainant’s claim that from October 2007 – July
2008, he assigned her secretarial duties. Person A also denied giving Complainant work in
July 2008, which had been performed by another GS-14 employee. Person A stated he did not
remove duties from Complainant and give her lower level tasks instead. Moreover, Person A
stated he did not exclude Complainant from team meetings or remove her from work on
critical team projects and assign that work to two interns.

In her affidavit, Person C noted that intermittently during the period February 2008 to
November 2009, Person A discussed with her disagreements he had with Complainant
regarding her duties. Person C noted that RMS was formed as a new organization in October
2007. She stated that at the time it was formed, they had only a general idea of what the work
would be. Person C noted the work of the team Person A supervised, PRMMT, was and still
is particularly subject to change. She explained that the work had never been conducted by
anyone in the Department before RMS was formed. Person A noted that when Complainant
was hired it was envisioned that PRMMT was to conduct a lot of analytical work with much of
the technical work to be completed by contractors. She noted, however, that this changed
because: (1) they did not receive the contract money needed to hire contractors to do the
programming; and (2) the technical (SAS programming) component of the work was far more
complicated than anticipated in 2007. She explained that as a result, the nature of the team's
work changed a great deal during 2008 and 2009. Person A stated that the overall trend has
been that the work has been far more technical (data analysis) and far less qualitative
(organizational and management analysis). She stated this was the reason that Complainant's
and her PRMMT teammates' assignments have changed a number of times.

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With regard to Complainant’s claim that she was removed from a project on monitoring
planning, Person C stated that she personally put that project on hold temporarily after a
November 2008, briefing by Complainant and her teammates that they were not making
progress towards the required outcome. Person A noted that management later reconfigured
the project with some other projects and assigned a cross-team to do the work beginning in
July 2009. Person C noted Complainant was assigned to the cross-team and was not excluded
from working on this project.

In addition, Person C noted that Complainant claimed that the project on A-123 was “taken
away from her.” However, Person C stated that RMS conducted that work under the direction
of Office of the Chief Financial Officer (OCFO) and after the work Complainant did was
finished, OCFO did not ask RMS to conduct any more work on A-123.

With regard to the assignment of secretarial duties, Person C stated that RMS has no support
staff and that all members of the staff, including the supervisors, must print large documents,
make photocopies, fill printers with paper, and scan documents. Person C acknowledged that
Complainant did not like doing this work and she mentioned to Person C when they met in
February 2008, that she did not think her assignments were appropriate given her grade level.
Person C stated there was no reason to believe that Person A gave an unfair share of clerical
work to Complainant.

With regard to issue (6), Person D stated that after they were informed of the complaint at the
November 2009 meeting, Complainant was reassigned to protect her in the event the
allegations proved to be true. Person D noted at that time the workload in the RMS immediate
office was extremely heavy and her help was needed. He stated that Complainant was assigned
work generally equal to her grade level.

In order to establish a claim of sexual harassment, a complainant must prove, by a
preponderance of the evidence, the existence of five elements: (1) that he or she is a member
of a statutorily protected class; (2) that he or she was subjected to unwelcome conduct related
to their sex; (3) that the harassment complained of was based on his or her sex; (4) that the
harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with his or her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the
employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).

With respect to element (5), an employer is subject to vicarious liability for harassment when it
is created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). The
standard of liability set forth in these decisions is premised on two principles: (1) an employer
is responsible for the acts of its supervisors, and (2) employers should be encouraged to avoid
or limit the harm from harassment. EEOC Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors (Enforcement Guidance) at § I (June 18, 1999). In order
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to accommodate these principles, the Court held that an employer is always liable for a
supervisor's harassment if it culminates in a tangible employment action.

Regarding element 1, the record is undisputed that Complainant, a female, is a member of a
statutorily protected class. Regarding elements 2 and 3, we find that the record supports the
determination that Complainant was subjected to unwelcome verbal and physical conduct based
on her sex.

The record reveals the Agency conducted an administrative investigation into Complainant’s
claim of sexual harassment between November 18, 2009, and December 11, 2009. The record
contains a document entitled Investigative Report detailing the results of that investigation.
Therein, the Investigator noted that Complainant told five coworkers that during the relevant
time Person A engaged in inappropriate touching and closeness. Specifically, the investigation
noted that Witness X (now working for the State Department), a coworker of Complainant’s
from March 2008 through July 2009, stated that in the late spring or early summer 2008,
Complainant told him that she was uncomfortable with the inappropriate conduct and physical
closeness of Person A. Witness X also stated that for awhile Complainant would not go into
Person A’s office unless Witness X was there.

The Investigator also noted that “numerous female coworkers acknowledged [Person A’s]
occasional hugs and comments such as, ‘Good morning, Sunshine.’” For example, the report
noted that Witness Y (currently an Attorney Advisor at the Department of Justice), a coworker
of Complainant’s from September 2008 through September 2009, stated that Person A would
sometimes say to her and another intern, “Good morning, Sunshine.” Witness Y stated that
when Person A came into her cubicle he would sometimes place his hands on her shoulders
when he talked to her at the computer. Witness Y stated that on those occasions she would
turn around so they could speak without contact. Witness Y said she may have seen Person A
display a similar gesture towards another intern. Witness Y stated that she discussed Person
A’s physical touching with the other intern and that they decided it was just his nature.

In addition, the Investigative Report revealed that Complainant told Person E, the Grant Policy
and Procedures Team Leader (GPPT Team Leader), RMS, that she had experienced physical
touching from Person A. The GPPT Team Leader stated that she advised Complainant to
speak with Person C or Person D. The GPPT Team Leader stated that Person A also gave her
an occasional hug in the morning and has called her “Sunshine.”

The administrative investigation also showed that Complainant told Person F, the Director of
the Grants and Service Team (Director of GST), RMS, about the inappropriate physical actions
from Person A and that they occurred at Complainant’s desk in her cubicle. The Director of
GST said she advised Complainant to report Person A’s behavior to Person C. The Director
of GST said that Complainant told her she already reported Person A’s behavior to Person C.
Additionally, the Director of GST noted that while she was working at her computer, Person A
came up to her and asked her a question which he prefaced by calling her “Sweets.” The
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Director of GST stated to Person A that the name-calling was inappropriate and she said she
gave him a nasty look and this never occurred again.

Moreover, we note the record contains an unsigned statement from an Employee Relations
Specialist who was present at the meeting to discuss Complainant’s 2009 performance rating.
The Employee Relations Specialist states she was at the meeting along with: her colleague,
Complainant, Complainant’s union representative, Person A, and Person C. The Employee
Relations Specialist noted that at the meeting Complainant stated that she had told Person A
many times not to touch or kiss her. The Employee Relations Specialist stated that Person C
implied that Complainant was lying because Person A had never made any kind of advances
towards Person C; therefore, if she had not experienced this type of behavior from Person A,
it was obvious to Person C that Complainant was lying. The Employee Relations Specialist
stated that she then spoke to Person A alone with her colleague and asked Person A if he
touched Complainant. The Employee Relations Specialist noted that the first two times she
asked Person A if he touched Complainant, he did not reply. She stated the last time she asked
him if he touched Complainant, he asked her what she meant by touching her. The Employee
Relations Specialist stated that she then replied that she responded by saying touching her in
any way that would not be appropriate. She stated that Person A said he put his arm around
her shoulders and sometimes around her waist in the morning when greeting her, but he said
he did not see anything wrong with that since they had known each other for a long time and
she never seemed to mind before. The Employee Relations Specialist stated that she ended the
meeting at that point.

We note that in his affidavit, Person A stated that the incidents described in issue (1) never
occurred and he stated that he did not engage in any of the conduct described by Complainant.
However, the Employee Relations Specialist stated that Person A later acknowledged to the
Employee Relations Specialist that he put his arms around Complainant’s shoulders and
sometimes her waist in the morning when greeting her. In addition, the Agency’s own internal
investigation revealed that Person A engaged in similar behavior with other females.
Additionally, we find Complainant’s contemporaneous complaints to several coworkers, the
GPPT Team Leader, and the Director of GST about Person A’s physical contact and closeness
constitute persuasive evidence both that the conduct occurred and that it was unwelcome.
Upon review, we find that the evidence of record supports a finding that Complainant was
subjected to unwelcome conduct on the basis of sex.

Regarding element 4, we find that the harassment affected a term or condition of employment
because it culminated in a tangible employment action -- Complainant’s reassignment. Also,
we find that the conduct at issue rose to the level of creating a hostile work environment on the
basis of sex.

Regarding element 5, we find that there is a basis for imputing liability to the Agency because
the sexual harassment by Person A, Complainant’s immediate supervisor, culminated in a
tangible employment action -- Complainant’s undesirable (to her) reassignment. See
Enforcement Guidance, at §IV.A-B. The Commission has stated a strong inference of
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discrimination will arise whenever a harassing supervisor undertakes or has significant input
into a tangible employment action affecting the victim, because it can be “assume[d] that the
harasser ... could not act as an objective, non-discriminatory decision maker with respect to
the plaintiff.” Enforcement Guidance, at § IV.C (June 18, 1999). However, if the employer
produces evidence of a non-discriminatory reason for the action, the employee will have to
prove that the asserted reason was a pretext designed to hide the true discriminatory motive.
Id.

In the present case, the Agency states that it permanently transferred Complainant to another
work location in response to her claim that she was being harassed by Person A. Specifically,
in his affidavit, Person D explained that “[a]fter we were informed of the complaint
[Complainant] was provided with accommodations to protect her in the event the allegations
proved to be true.” As a result, we find Complainant’s November 2009 reassignment was the
proximate result of the sexual harassment, in that Complainant would not have been reassigned
but for the unlawful sexual harassment.

Since we find the incidents described in issues (1) and the related reassignment described in
issue (6) were sufficient to constitute unlawful sexual harassment, we decline to address the
additional incidents of Complainant’s harassment claim identified in issues (2) – (5).
Moreover, we find no reason to determine if the same incidents also constituted harassment
based on Complainant’s sex, race, disability, or in reprisal for protected EEO activity.

Even if this hostile work environment did not culminate in a tangible employment action by a
supervisor, we find that the Agency is still liable for the harassment. An Agency is liable for
harassment by a co-worker or other non-supervisor when it “knows or should have known of
the conduct, unless the Agency can show that it took immediate and appropriate corrective
action.” See 29 C.F.R. § 1604.11(d). Whether the Agency's action is appropriate depends
upon “the severity and persistence of the harassment and the effectiveness of any initial
remedial steps.” Taylor v. Dep't of the Air Force, EEOC Appeal No. 05920194 (July 8,
1992). The appropriateness of the Agency's conduct in response to harassment depends upon
“the particular facts of the case-the severity and persistence of the harassment, and the
effectiveness of any initial remedial steps.” Owens v. Dep't of Transportation., EEOC Appeal
No. 05940824 (September 5, 1996). Appropriate corrective action is a response that is
reasonably calculated to stop the harassment.

In the present case, the record shows there is a basis for imputing liability to the Agency. In
so finding, we note that the Agency failed to demonstrate, by a preponderance of the evidence,
that it took immediate and appropriate corrective action.

The record reveals that the Agency was notified of the harassment at the latest on November 5,
2009. The record reveals that the Agency initiated an administrative investigation on the
matter on November 18, 2009, which found Complainant’s claim of sexual harassment to be
unsubstantiated. In its final decision, the Agency claimed that it exercised reasonable care in
reassigning Complainant from the direct supervision of Person A in order to prevent and
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correct promptly any sexually harassing behavior. In addition, the Agency argued that
Complainant unreasonably failed to take advantage of new supervision provided by her
employer.

Appropriate corrective action is a response that is reasonably calculated to stop the harassment.
The only corrective action the Agency identified in its final decision was reassigning
Complainant to another position. We find that transferring Complainant to an undesirable
reassignment was not appropriate corrective action. Specifically, the Commission has stated
that corrective action should not adversely affect a complainant. In the present case, the
Agency’s action of requiring Complainant to accept an undesirable reassignment adversely
affected Complainant. Moreover, despite the Agency’s contentions to the contrary, the record
contains no evidence that Complainant unreasonably failed to take advantage of corrective
actions it offered. Upon review, we find the Agency failed to show by a preponderance that it
took appropriate corrective action.

As for the remedies for this sexual harassment, the remedies shall include, in part, offering
Complainant the opportunity to return to her former or substantially equivalent position without
supervision by Person A.

Furthermore, regarding the reassignment in issue (6), we note that an employer may need to
take intermediate action pending the investigation of a claim, such as transferring the alleged
harasser, to ensure further harassment does not occur. However, the Commission has further
stated that a complainant should not be involuntarily transferred or otherwise burdened,
because such measures could constitute unlawful retaliation. See EEOC Enforcement
Guidance, at 21-22 (June 18, 1999). We find no legitimate, non-discriminatory reason for
Complainant’s involuntary reassignment. Rather, we find that the transfer was due to
retaliation for Complainant’s claims of sexual harassment. See Abrigo v. Department of
Homeland Security, EEOC Appeal No. 0120064230 (September 15, 2008).

Issues (7) and (8)

Issues (7) and (8) concern Complainant’s claims regarding her EDPAS standards and rating.
Specifically, Complainant stated that in March 2008, Person A developed an EDPAS statement
for her with standards that were in violation of the Personnel Manual Instruction (PMI). She
also stated that in April 2008, Person C refused to modify her EDPAS standards.
Additionally, Complainant stated that on October 21, 2009, Complainant received a
“minimally successful” EDPAS rating. Further, Complainant stated that in November 2009,
she was forced to enter incorrect, irrelevant FY 2010 EDPAS standards that were that of
another job classification into the computer system. In her affidavit, Complainant stated that
she believed these performance rating matters were based on retaliation for her protected
activity.

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In his affidavit, Person A addressed Complainant’s concerns regarding her FY 2008 EDPAS
standards. Specifically, Person A stated that in March 2008, the EDPAS statement he
developed were in compliance with PMI policy and accurately reflected the work assigned to
her. Person A acknowledged that Person C refused to modify the EDPAS standards as
suggested by Complainant.

Person A also acknowledged that Complainant did receive a “minimally successful” EDPAS
rating for FY 2009 in October 2009. He noted that at her mid-point review in April 2009, he
expressed his concerns regarding her performance and informed her if he were to rate her at
that time he would rate her “minimally successful.” Person A stated that in October 2009, he
gave her a rating of “minimally successful” which was an accurate assessment of her
performance.

With regard to her FY 2010 EDPAS standards, Person A explained that in October 2009, he
attempted to work with Complainant to develop her FY 2010 EDPAS standards; however she
refused to provide any input into the development of the standards. Person A stated that he
then developed draft standards for her and requested Complainant comment on them but she
refused to provide comment. Person A stated that in November 2009, he forwarded to
Complainant EDPAS standards for FY 2010 that were reflective of the work that the team was
expected to accomplish in the coming year.

In her affidavit, Person C disagreed that Complainant’s FY 2008 EDPAS standards violated
the Agency’s personnel policy. Person C stated that in April 2008, she refused to accept
standards proposed by Complainant; however, she did not refuse to allow Complainant and
Person A to modify the standards if they could reach agreement on standards that meet the
needs of PRMMT and that were measurable. Person C noted that the standards Complainant
proposed were rejected because they were not measurable results. Specifically, Person C
noted for example that Complainant proposed that she should be rated on attending staff
meetings, writing reports, meeting with staff, providing suggestions and advice, and consulting
with people. Person C opined that those activities were not measurable results. Person C
noted that because Complainant and Person A could not agree on performance standards, the
standards established by Person A would be the rating standards.

With regard to her FY 2009 standards, Person C noted that Complainant agreed to the
standards that led to her October 2009 rating of “minimally successful.” Person C noted that
Complainant was rated on individual standards. Person C explained that there were projects
for which Complainant did not submit the products. Person C noted that Complainant received
1 point for OP (Organizational Priorities) Standard #2 due to a project for which she never
submitted a product. Person C noted that Complainant received 1 point for OP Standard #3
for a project that she should have produced an estimated 19 summaries for, but which she
submitted 3 summaries during the rating period and an additional 8 summaries after the end of
the rating period, as part of a rebuttal package. Person C noted that Complainant received a
“not applicable” rating on OP Standard # 5 because RMS had not reached the stage in the
development of the data analysis tools that the information could be given to the program
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offices. Person C stated this is the same reason that CS (Customer Service) standard # 2 was
rated as “not applicable.” Person C observed that Complainant received satisfactory ratings on
her other projects.

Person C noted that on October 27, 2009, Complainant copied her on a 182-page document
that she sent to a number of Department officials containing a rebuttal to her rating. Upon
review, Person C noted the only information in the package that was related to the two
standards on which Complainant received a “1” was 11 summaries of OIG reports. Person C
noted that these represent 11 of the 19 summaries she should have completed for one of her
standards. Person C noted that Person A stated he received only 3 summaries during the rating
period and 8 more after the rating period. Person C explained that the completion of 19, or
close to that number, during the performance period was the standard at the “fully successful”
level. Person C stated that Complainant’s rating was justified.

However, Person C explained that she also reviewed the process by which the employee had
received feedback on her performance over the year. Person C noted that Complainant had
received verbal notice at her mid-point progress review that her performance to that point had
been “minimally successful.” Person C stated that Person A had not, however, provided
Complainant with a written summary of that discussion. Person C stated that she changed the
rating to “Successful” based on this procedural problem. Person C stated that she notified
Complainant of the change in her rating on November 3, 2009, prior to the meeting with her
union representative. Person C stated that at the meeting on November 5, 2009,
Complainant’s union representative asked that Complainant's rating be changed to “not rated”
for the year, rather than “successful.” Person C stated that after consulting with Human
Resources, she agreed to this change.

Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its
actions surrounding Complainant’s EDPAS standards for FY 2008 and FY 2010 and her actual
rating for FY 2009. Complainant failed to show by a preponderance of evidence that the
Agency’s actions were based on discriminatory animus.

Issue (9)

In her complaint, Complainant claimed that she was subjected to discrimination when in March
2009, October 2009, and again in November 2009, Person D denied Complainant’s request to
be reassigned to the Grants Policy and Procedures Team (GPPT).

In her affidavit, Person C stated that Complainant’s request for a detail or reassignment was
denied because there was no slot for that position. Person D explained Complainant’s requests
were denied because the request was to engage in a different type of work. He noted that the
organizational challenges they were experiencing in developing a new organization made it a
difficult request to fulfill. He stated that had conditions been more favorable the GPPT could
have afforded the time and effort to allow Complainant to transfer and provide her the training
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and experience needed to fill a senior policy analyst position dealing with the Department's
discretionary grants issues.

The Agency articulated legitimate, non-discriminatory reasons for denying Complainant’s
requests to transfer to the GPPT. Complainant failed to show by a preponderance of evidence
that the Agency’s reasons were a pretext for prohibited discrimination.

CONCLUSION

The Agency’s final decision dismissing issues (10) and (11) is AFFIRMED. The Agency’s
final decision finding no discrimination with regard to her claim of race, and disability on all
claims and no discrimination regarding issues (7), (8), and (9) based on sex is AFFIRMED.
The Agency’s decision finding no reprisal on issues (1) – (5) and (7) – (9) is AFFIRMED.
The Agency’s final decision with regard to the claim of sexual harassment and retaliation in
issue (6) is REVERSED and we REMAND the matter for the Agency to comply with the
Order herein.

ORDER

1. Within 60 days of the date on which this decision becomes final, the Agency shall offer
Complainant the position of Program and Management Analyst, GS-14, or a
substantially equivalent position. Complainant shall be given a minimum of 15 days
from receipt of this offer within which to accept or decline the offer. Failure to accept
the offer within the 15-day period will be considered a declination of the offer, unless
Complainant can show that circumstances beyond her control prevented a response
within the time limit. If the offer is accepted, appointment shall be retroactive to
November 5, 2009.

2. Within 60 days of the date on which this decision becomes final, the Agency shall
conduct a supplemental investigation to determine Complainant's entitlement to
compensatory damages under Title VII. The Agency shall give Complainant notice of
her right to submit evidence of pecuniary and non-pecuniary damages. For guidance on
what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties
are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages
Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at
http://www.eeoc.gov/policy/docs/damages.html), and Carle v. Dep't of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). The Agency shall complete the
investigation and issue a final decision addressing the issue of compensatory damages
within 150 calendar days after this decision becomes final. The final decision shall
contain appeal rights to the Commission. The Agency shall submit a copy of the final
decision to the Compliance Officer, as provided in the statement titled “Implementation
of the Commission's Decision.”

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3. Within 180 days after the date this decision becomes final, the Agency shall provide
eight hours of EEO training to the responsible management officials, including Person
A, Person C, and Person F regarding their obligations under Title VII concerning
sexual harassment. If the responsible management officials are no longer employees of
the Agency, then the Agency shall furnish documentation of their departure dates.

4. Within 90 days after the date this decision becomes final, the Agency shall consider
taking appropriate disciplinary action against the responsible management officials
including Person A, Person C, and Person F. The Commission does not consider
training to be disciplinary action. The Agency shall report its decision to the
Compliance Officer referenced herein. If the Agency decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not to take disciplinary
action, it shall set forth the reason for its decision not to impose discipline. If the
responsible management officials have left the Agency's employment, then the Agency
shall furnish documentation of their departure dates.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Washington, D.C. facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall
be posted by the Agency within thirty (30) calendar days of the date this decision becomes
final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including
all places where notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced, or covered by any other
material. The original signed notice is to be submitted to the Compliance Officer at the
address cited in the paragraph entitled "Implementation of the Commission's Decision," within
ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See

29 C.F.R.
§ 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
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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
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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.
(T0610)

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

August 15, 2013
Date