Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.

Equal Employment Opportunity Commission

May 15, 2013

0120122128 (E.E.O.C. May. 15, 2013)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.

Appeal No. 0120122128

Agency No. USA-2011-00397

DECISION

On March 30, 2012, Complainant filed an appeal from the Agency’s March 15, 2012, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Manager
at the Agency’s Office of Legal Education facility in Columbia, South Carolina. On April 13,
2011, Complainant filed an EEO complaint alleging that the Agency subjected her to sexual
harassment and discriminated against her on the bases of her sex (female) and in reprisal for
prior protected EEO activity when:

1. on February 3, 2011, management officials and coworkers viewed a picture of a
naked woman and compared the image to other nearby female employees;
2. on February 3, 2011, a management official (M1) discussed a sexual act in front of
Complainant;
3. between October 2008 and August 2009, M1 sent Complainant emails with content
that was offensive;
4. in 2010, M1 made comments that were sexual in nature and derogatory to women;
and
5. from November or December 2009 through 2010, management officials gave
preferential treatment to male employees with regard to work assignments and
promotions.
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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
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. Complainant makes
no arguments on appeal.

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”).

It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex
discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order
to establish a prima facie case of sexual harassment, the complainant must prove, by a
preponderance of the evidence, the existence of five elements: (1) that she is a member of a
statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that 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) that there is a basis for imputing
liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810
(Aug. 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 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 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment
action, an agency can raise an affirmative defense, which is subject to proof by a
preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to
prevent and correct promptly any harassing behavior; and (2) that the complainant
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results
in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment)
being taken against the employee. An agency can raise an affirmative defense when it shows
0120122128

3
that it took immediate and appropriate corrective action. Id. What is appropriate remedial
action will necessarily depend on the particular facts of the case, such as the severity and
persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v.
Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).

Here, we find that Complainant has failed to establish that she was subjected to sexual
harassment as the evidence of record does not support a finding that any of the actions at issue
occurred as alleged by Complainant. In so finding, we note Complainant has not shown that
the behavior complained of was “unwelcome” in that the record contains numerous statements
from co-workers indicating that Complainant engaged in the very behavior she alleges was
harassing. Specifically, Complainant’s co-workers state that she often used foul and offensive
language, was abusive to other employees, and that she “was always at the heart of the
inappropriate discussions.” Additionally, we note that even assuming these incidents occurred
as alleged, the record shows that when Complainant reported her allegations of sexual
harassment to management officials, an immediate inquiry was conducted, and the Agency
took appropriate corrective actions. This included counseling employees on the appropriate use
of government email, sexual harassment training, and initiating a new policy on rules of
conduct in the staff lounge. The Agency’s report also suggested referring Complainant to
Employee Assistance Programs due to “at least five reported incidents of her yelling at staff”
and reports from employees that she is “erratic and volatile.” We find that Complainant has
failed to proffer any evidence, beyond her mere assertions, to show that she was subjected to a
hostile work environment.

We also find that Complainant failed to adduce any evidence to support her claim that male
coworkers received preferential treatment with respect to assignments and promotions. The
evidence shows of the 59 employees in Complainant’s department, 43 are female, and that the
female employees received formal recognition and awards at a higher rate than the male
employees. They were also selected for assistant director and program manager positions.
Further, the record shows that Complainant was selected employee of the month in June 2010,
and that despite her contention that she has been wrongly denied a promotion, Complainant has
not applied for any vacant positions for which she was not selected. As such, we find that
Complainant lacks standing to bring this claim as she has failed to identify any way in which
she has been aggrieved by the alleged Agency actions.

Finally, Complainant can establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v.
Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth
in McDonnell Douglas and Coffman v. Dep’t of Veterans Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by
showing that: (1) she engaged in protected activity; (2) the Agency was aware of the protected
activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a
nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by
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evidence that the adverse treatment followed the protected activity within such a period of time
and in such a manner that a reprisal motive is inferred. See Clay v. Dep’t of the Treasury,
EEOC Appeal No. 01A35231 (Jan. 25, 2005). Here, we find that because Complainant failed
to show that any of the events at issue occurred as alleged, she failed to establish a prima facie
case of reprisal as she failed to show she was subjected to any adverse treatment by the
Agency.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision.

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.
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).
0120122128

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(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
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

May 15, 2013
Date