Coralee H.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

0120182639 (E.E.O.C. Dec. 17, 2019)

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

Coralee H.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182639

Agency No. DON170068148047

DECISION

On August 6, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 11, 2018, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency erred in finding that Complainant did not establish her
claim of sexual harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial Analyst,
NF-05 at the Agency’s Marine Corps Community Service (MCCS) facility in Camp Pendleton,
California. Complainant maintained that A1, the Director/Food/Leisure/Hospitality Service, who
she occasionally socialized with outside of work with his wife, began to sexually harass her. She
stated that the first incident occurred in 2010, when A1 grabbed her left butt check and remarked,
“nice” then chuckled and walked away.

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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Complainant did not report this incident. Again in 2010, A1, she stated, sent two inappropriate
pictures, i.e., pictures of his penis to her. She deleted the pictures and again did not report the
incident. In the spring of 2011, she stated that A1 asked her to send him “sexy pictures” on her
phone, and he then sent her a full-frontal nude photo. In mid-2011, Complainant stated that A1
insisted on coming to her apartment to congratulate her on her promotion. While there,
Complainant maintained that he tried to kiss her and then grabbed her butt. She reminded him that
he was married, and he responded, “okay be that way.”

In 2011, Complainant maintained that A2, Labor and Employee Specialist, told her that if she
knew Complainant was single, she would have “hooked [her] up” with A1. A2, according to
Complainant, was the person to whom she would have reported her sexual harassment allegations,
had she reported them. A2 stated that, on July 12, 2011, Complainant came to see her with
questions concerning her time. She did not recall any personal conversations but did not deny that
they may have occurred. She stated that she and Complainant are not friends, but that they had a
pleasant, professional relationship. She also noted that Complainant had never indicated that, or
acted as if, she had offended her. Moreover, she had no recollection of making the statement
attributed to her and testified that she was a 68-year-old woman, and the words “hook up” were
not the kind of words she would use.

On February 21, 2012, Complainant asserted that A1 told her that if he loved her then their
supervisor would love her, but if disliked her, the supervisor would dislike her too; so that she
better be nice to him. In January 2013, she maintained that A1 made a comment that her breast
looked big. Complainant sent him a text telling him that he had crossed the line. According to
Complainant, A1 stated that he would not do it again. In 2014, Complainant stated that A1 gave
her a long uncomfortable hug. According to Complainant, she notified him that his actions made
her feel uncomfortable, but she did not report these actions. In 2015, Complainant stated that A1
made a lewd comment in front of her, and a female General Manager. When the manager asked
Complainant if he was coming, A1, allegedly responded, “oh, I always do.”

Complainant maintained that while she never reported A1’s inappropriate behavior, C1, a male
coworker that witnessed his actions, did report it to his supervisor, but the Agency took no action.

In August 2017, Complainant learned that the MCCS Director (MD) her then supervisor was
retiring, and A1 was being assigned to the position where he would be in her direct chain of
command. Complainant maintained that after he started sexually harassing her, she tried her best
to avoid him but after she learned that he would have the ability to ruin her career in his new
position, she disclosed A1’s sexually harassing behavior. Complainant asserted, however, that it
had long been known that A1 was sexually harassing her, and that he had sexually harassed another
female employee, C2, and yet the Agency took no action. As a result of the subsequent
investigation, a recommendation was made that A1 be terminated, but he resigned rather than face
termination.

On December 15, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her based on sex (female) when:
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1. a. In 2010, A1 grabbed her [butt], showed her pictures of his penis, showed her a
nude photo of him standing in front of a mirror holding his penis and grabbed her
and tried to kiss her in his apartment between 2010 to 2015; told her multiple sexual
stories and made inappropriate comments about her body; repeatedly asked her out
on dates and about her sexual experiences, asked where she lived, commented on
her appearance, expressed his feeling about her to her and to enlisted marines; and
told MCCS employees that Complainant and he were sexually involved. On
February 21, 2012, he told her that if she was not nice to him, he would tell [MD]
who then [would] start disliking her. On January 2013, he asked, “What did you
do? They look big, they look good,” referring to her breasts.

b. In 2011, A2, Labor and Employee Specialist, NF-2010-04, told Complainant that
if she knew Complainant were single she would have “hooked (her) up” with A1.2

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. 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. The
decision found that as soon as Complainant disclosed that A1 was sexually harassing her, an
investigation was initiated, and the Agency took prompt remedial action to address Complainant’s
allegations.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that she has “some new and some already
referenced” evidence that disputes the findings of the Complaints Program Manager.
Complainant maintains that the Agency was on notice regarding A1’s inappropriate behavior and
sexual harassment towards her since at least 2009 - 2010. She contends that management
repeatedly ignored and refused to investigate those complaints. She asserts that it was not until
she went outside of the Agency that an investigation was commenced. Specifically, she argues
that C1, a male coworker in 2009-2010, reported A1’s behavior toward her to his superiors, A3
and A4 but nothing was done.

Complainant also explains, among other reasons, that she did not report A1’s conduct because she
was afraid of losing her job if she complained publicly.

2 Complainant also raised a spin-off complaint about the investigator sharing information about
her sexual harassment claim with other witnesses while interviewing them. The Agency
determined that the investigator acted appropriately. Complainant did not dispute this
determination on appeal; therefore, we will not address this matter in this decision.
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Complainant maintained, however, that in 2015, she told MD about a comment that A1 made about
her breasts, but that nothing was done. Finally, Complainant notes that, in 2016, C2, a female
coworker, reported A1’s inappropriate behavior towards her, C2, but nothing was done.

In response, the Agency, contends among other things, that Complainant’s contention that she told
MD in 2015 about comments by A1 is being raised for the first time on appeal and is not supported
in the record and that such new evidence should not be considered, and that the FAD should be
affirmed as Complainant did not demonstrate that the Agency failed to take appropriate remedial
action regarding her allegations.

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 Chap. 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”).

Sexual Harassment

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, 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, 118 s. Ct. 2257, 2270 (1998); Faragher v. City
of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment
does not result in a tangible employment action the 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 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
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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. By way of contrast, in the case of co-worker harassment, an agency
is responsible for acts of harassment in the workplace where the agency (or its agents) knew or
should have known of the conduct, unless it can show that it took immediate and appropriate
corrective action. Id.

With respect to Claim 1(a), we find that assuming, arguendo, Complainant established elements 1
– 4, the preponderance of the evidence and the totality of the circumstances does not support
Complainant’s claim that she was subjected to a hostile work environment based on sex for which
the Agency is liable. Because A1 was not Complainant’s co-worker, but was a manager in her
workplace, we find that vicarious liability applies and that we must determine whether the Agency
established an affirmative defense because no tangible employment action resulted here.
Based on the preponderance of the evidence, we find that the Agency was able to establish an
affirmative defense pursuant to element 5.

Agency’s Affirmative Defense

Reasonable Care to Prevent and Correct

We find that the Agency exercised reasonable care to prevent and correct promptly any harassing
behavior. The record contains a copy of the policy statement issued by the Commanding General
of Camp Pendleton on discrimination and harassment. Among other things, the policy provides:
that discrimination, in any form, would not be tolerated; that allegations of harassment would be
investigated in a timely manner; that disciplinary actions would be taken against those found to
have engaged in harassment; that supervisors (military and civilian) would be held responsible for
maintaining a workplace free of harassment based on both discriminatory and non-discriminatory
factors; that the confidentiality of anyone bringing a claim of harassment would be protected to
the fullest extent possible and that they would be free from reprisal. We also note that a phone
number was provided to report harassment or discrimination.

The record also contains evidence of EEO training that Complainant, A1 and other employees
received over a period of years. Specifically, we note that Complainant completed Prevention of
Harassment training on October 23, 2009, and February 8, 2011; No Fear training on February 24,
2010 and February 8, 2011; and Sexual Harassment Prevention and Response training on August
8, 2013.

The record further indicates that once Complainant reported A1’s conduct, an investigation was
launched; within a week he was placed on administrative leave; and a recommendation was made
that he be terminated, but he resigned rather than face termination.

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Failure to take Advantage

We also find that Complainant unreasonably failed to take advantage of preventive or corrective
opportunities provided by the Agency or to avoid harm otherwise. In the instant complaint,
Complainant acknowledged that she did not notify management regarding A1’s behavior until
August 2017, and that she only disclosed the information after learning that A1 was possibly
joining her chain of command. Complainant acknowledged that she and others were upset about
A1’s placement into the position without the position being announced.

With respect to Complainant’s contention that she did not contact Agency officials earlier because
she feared retaliation, we note that the Commission has long held that fear of reprisal is an
insufficient justification for not complying with our notification obligations. Duncan v. Dep't of
Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep’t of Def., EEOC
Request No. 05930898 (Dec. 9, 1993).

We also find no persuasive evidence to support Complainant’s contention that other employees on
her behalf contacted management about A1’s conduct or that management was otherwise on
notice. C1 testified that he had witnessed several incidents of A1’s inappropriate behavior toward
Complainant and that he reported it to A3 and A4, two Agency officials, in 2009. As the Agency
notes on appeal, and we agree, C1 provided no documentary evidence to support his claim, did not
provide specifics as to what was reported, nor was there any statement from A3 in the record to
corroborate this assertion. A4 did provide a sworn statement but he stated that he could not recall
C1 making a report of harassment.3 With regard to C2, the Agency found that there was credible
evidence that she was subjected to behavior from A1 that was similar in nature to the behavior
described by Complainant, C2 did not, however, state that she filed a formal complaint of
discrimination with the EEO office or discussed the behavior with her own or A1’s supervisor.
Like Complainant, C2 maintained that she spoke with her coworkers, but she made no report.
Finally, regarding MD, the record contains no sworn statement from him as part of the EEO
investigation, but he was interviewed as part of the investigation into Complainant’s August 2017,
harassment claim. MD’s interview is part of the Report of Investigation. According to the notes
from that investigation, MD stated that the first time he learned of Complainant’s allegations was
on August 21, 2017, and that on that same day, he informed A4. We find this statement is consistent
with Complainant’s statement that she did not inform management until it was announced that A1
would be assuming MD’s position.

With respect to Claim 1(b), we find no persuasive evidence that this allegation occurred.
Moreover, if it did occur, we do not find that it was severe or pervasive enough to rise to the level
of harassment. As the Commission has previously stated Title VII is not a civility code. Rather, it
forbids “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

33 The Agency contends that C1 had a motive to be untruthful because he was forced to retire after
receiving non-judicial punishment and A4 was his immediate supervisor.
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Based on the above, we find that Complainant did not establish that she was subjected to
harassment by the Agency as alleged. As Complainant did not request a hearing, we do not have
the benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, we
can only evaluate the facts based on the weight of the evidence presented to us.

CONCLUSION

After a careful review of the record in its entirety, including consideration of all statements
submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

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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 (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

December 17, 2019
Date