Golden L.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120170981 (E.E.O.C. Nov. 21, 2018)

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

Golden L.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120170981
Agency No. DOIUSGS160237

DECISION

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 October 28, 2016, 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 (FAD).
ISSUES PRESENTED

In the instant appeal, we examine whether the FAD properly found that Complainant failed to
establish that she was discriminated against or subjected to harassment based on sex and in reprisal
for prior EEO activity when:

1. On March 6, 2016, she was laterally transferred to a new office after her repeated attempts
to have action taken by management against a co-worker (E1) who was allegedly stalking
her;
2. On January 12, 2016, the Center Director sent a new email message rescinding the rules of
behavior originally imposed on June 19, 2015;
3. On December 8, 2015, E1 assigned untrained employees to her project;
4. On September 15, 2015, C1, the Employee Relations (ER) Specialist, conducted an
investigation and provided a report that minimized her allegations;

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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5. She did not receive a response from C1 for six months beginning September 28, 2015,
when she made repeated requests via email;
6. On August 26, 2015, she was contacted by E1 and he began to retaliate against her by
assigning untrained staff to work on her projects;
7. On August 12, 2015, she was instructed to file a grievance;
8. On June 26, 2015, her request to hire a consultant to resolve her issues was denied by the
Center Director;
9. On June 18, 2015, she began to experience post-traumatic stress disorder (PTSD);
10. From March 2015 through June 2015, she was stalked by E1.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-12, Hydrologist
at the Agency’s Boise Water Service facility in Boise, Idaho. The Agency’s FAD thoroughly
discussed the facts in the record, and the instant decision incorporates them as stated.
Complainant’s immediate supervisor was S1, Associate Director, Water Service Center.
Beginning on June 15, 2015, her second-level supervisor was S2, Director. S3 was a GS-14
Hydrologist. S4 was a Supervisory Hydrologist, and the immediate supervisor of E1, who was a
Supervisory Biologist, but not in Complainant’s supervisory chain. On April 1, 2016, Complainant
filed an EEO complaint alleging that the Agency discriminated against her as articulated in the
statement of Issues Presented above.

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 instant
appeal followed.

On April 7, 2015, Complainant reported to S3, who was her acting supervisor, that she was being
stalked by E1. Specifically, she suspected that E1 was cyber stalking her, but was not certain and
did not want to share this information with a wider group. She was planning to go on an extended
vacation and hoped to have the matter resolved before she returned. S1 and S4 first learned of the
allegation on June 1, 2015, as did S2 when he became the Water Center Director.

The record indicates that E1 was on the selecting panel when Complainant was first selected in
2009 or 2010, and was her immediate supervisor for about 2 years. From 2010 through November
2014, while Complainant’s supervisor part of that time, E1 and Complainant were involved in a
consensual relationship, which included their living together. S1 and S2 were not aware of the
relationship when it occurred. S3 was not aware for most of the time when it occurred.

2 The Commission notes that two additional allegations were withdrawn and are not at issue in the
instant appeal.
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Complainant claimed that, during their consensual relationship, E1 made threats of physical
violence against her. E1 denied these assertions, and they are not part of the instant EEO
complaint. Complainant and E1’s relationship ended on December 1, 2014.

CONTENTIONS ON APPEAL

On appeal, Complainant, through her representative, requests, in pertinent part, that the
Commission reverse the Agency’s FAD due to an alleged cursory and incomplete investigation
resulting in an inadequate Report of Investigation, and a clear disregard of record evidence which
Complainant states clearly establishes that she was subjected to discrimination as alleged.

In response to the appeal, the Agency contends that its FAD be affirmed as it is in line with
precedent and applicable guidelines. Additionally, the Agency submits that a legitimate
nondiscriminatory reason was provided for each of the alleged discriminatory actions, and
Complainant failed to establish pretext.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

At the outset, we do not find that claim 9 states an individual claim of discrimination, and we will
not analyze it as such. According to Complainant, on June 18, 2015, she began to experience
PTSD. A fair reading of this assertion is that Complainant is alleging that the Agency’s actions
caused her physical and emotional harm. Assuming, arguendo, that Complainant were to prevail
on her EEO complaint she would be given the opportunity to establish an entitlement to
compensatory damages.

Harassment

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
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liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

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
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.

Complainant claimed that from March 2015 through June 2015, she was harassed and stalked by
E1, claim 10. The Agency’s FAD outlines in great detail Complainant’s allegations during this
period and E1’s denials of her contentions. See FAD pp 3 – 10. Complainant’s allegations of
stalking were investigated by C1, an Employee Relations Specialist. C1 found that there was no
actionable misconduct on E1’s part, and “no evidence of imminent threat towards the
Complainant’s safety in the workplace or, otherwise.” C1 consulted with the Office of Inspector
General, and the Boise Police Department, which reported that there was no open investigation
and that Complainant had twice been denied an order of protection against E1, despite her
allegations. Although C1 considered the evidence submitted by Complainant, she did not
interview Complainant or E1. C1 advised Complainant that she could file a grievance if she was
dissatisfied with S2’s decisions.

We find that Complainant’s overall claim of harassment must failed, because we find no persuasive
evidence that she was subjected to the alleged conduct that comprises her claim. As noted above,
C1’s investigation did not corroborate Complainant’s allegations that she was being stalked by E1,
nor did the Boise Police Department. 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. Accordingly, we
find that Complainant did not provide preponderant evidence that she was subjected to disparate
treatment or harassment, including sexual harassment.

Disparate Treatment

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To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

With respect to her reassignment (claim 1), the record indicates that Complainant was already
seeking a position outside of Boise. She requested reassignments out of the area, and in fact
declined an offer located in Boise. There is no persuasive evidence that she was involuntary
reassigned in retaliation for her complaints about E1. With respect to claim (2), Complainant’s
allegation that the Agency improperly rescinded the Rules of Behavior (Rules), which, among
other things, mandated no direct contact between Complainant and E1. The Rules were imposed
on June 19, 2015, by S2 shortly after he became Director. In August 2015, as a result of C1’s
investigation, the Rules were rescinded. In January 2016, S2 sent an email confirming the
rescission of the Rules, in part, because there had been no further incidents after six months, and
the Agency’s investigation did not corroborate Complainant’s allegations. Assuming Complainant
establish prima facie cases of discrimination based on sex and reprisal regarding claims 1 and 2,
we find that the Agency provided legitimate non-discriminatory explanations for its actions, and
we find no persuasive evidence of pretext.

Regarding claims 3 and 6, Complainant maintains that she was assigned untrained employees to
her project by E1 in order to harass and retaliate against her. The record indicates that in addition
to the untrained employees, Complainant was also assigned two experienced employees.
Management’s indicated that the assumption was that the experienced employees would help train
the less experienced employees. Additionally, the untrained employees were carefully observed
during an initial period for any performance issues and none were noted. Furthermore, there is no
evidence that discriminatory animus played any role in these assignments. Finally, the record
indicates that because the Rules had been rescinded it was not inappropriate for E1 to contact
Complainant. Again, assuming Complainant establish prima facie cases of discrimination based
on sex and reprisal regarding claims 3 and 6, we find that the Agency provided legitimate non-
discriminatory explanations for its actions, and we find no persuasive evidence of pretext.
Claims 4, 5, and 8, reflect Complainant’s dissatisfaction with the Agency’s investigation. We find,
however, that the record is void of any evidence that C1’s investigation in any way minimized
Complainant’s allegations. The investigation into Complainant’s allegations of harassment
appears to have been diligent, and included consultations with the Inspector General’s office for
advice, and the Boise Police Department for information. Complainant’s dissatisfaction with the
outcome of the investigation does not diminish its legitimacy.
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We also note that to the extent Complainant was dissatisfied, she was given the opportunity to
have a hearing before an EEOC Administrative Judge. At the hearing, she could have conducted
discovery, called witnesses, and cross-exam Agency witnesses under oath.

Finally, we find that claim 7 fails to state a claim. Complainant was not aggrieved by C1 telling
her that she could file a grievance if she was dissatisfied with S2’s decisions. To the extent that
Complainant was offended by this comment, we find that that it was an isolated comment that was
neither severe nor pervasive to establish a hostile work environment.

CONCLUSION

After a 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 because the preponderance of the evidence of record does not establish
that discrimination occurred as alleged.

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.
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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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 21, 2018
Date