Kerrie F.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120170702 (E.E.O.C. Dec. 12, 2018)

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

Kerrie F.,1
Complainant,

v.

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

Appeal No. 0120170702

Agency No. 166739901004

DECISION

On November 19, 2016, 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 24, 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., 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 AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

In the instant appeal, we examine whether the final agency decision (FAD) properly found that
Complainant did not establish that she was discriminated against or subjected to harassment based
on sex or disability with regard to 9 incidents which formed the basis of her hostile work
environment claim.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Education Career
Specialist, NF-1740-04 at the Agency’s Marine Corps Community Services Education Center
facility in Twenty-Nine Palms, California. The Agency’s FAD thoroughly discussed the facts in
the record, and the instant decision incorporates them as stated.

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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On March 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female) and disability when:

a. On February 2, 2016, Program Manager, Complainant’s second-level supervisor (S2), sat in the
back of the classroom in which Complainant was teaching and made her feel scared;
b. On February 10 and 11, 2016, Complainant heard S2’s voice in the building she was working
in and where S2 attended training and made her feel scared;
c. On February 25, 2016, Complainant saw S2 walk by her desk window and she almost peed on
herself from fear;
d. In May 2012, she witnessed S2 greet CW1, a co-worker, by opening his legs, shouting, “Hey,
Baby Cakes,” and hugging CW1 with legs open as they hugged;
e. On an unspecified date prior to March 2013, S2 asked her to give him a massage in the presence
of coworkers;
f. On an unspecified date prior to April 2014, S2 asked her to work out with him in the park,
complimented her workout pants, hugged her very close and touched above the curve of her
buttocks;
g. On an unspecified date prior to April 2014, S2 asked her for a massage while Marines were
present;
h. On or about April 23, 2014, S2 hugged her at work and patted her bottom; he had an erection;
i. On an unspecified date in November or December 2015, S2 told CW2 that a female character
from the television show, Game of Thrones, was hot; CW2 responded that a male character from
the show was hot and pulled up a photo on her computer in her presence

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 Agency dismissed claims
d - i based on untimely counselor contact. The record indicates that Complainant indicated she
did not realize she was subjected to a hostile work environment until December 8, 2015, when
interviewed by an investigator regarding a complaint of a similar nature. Complainant first
reported the incident to the Human Resources Office on January 26, 2016, four days beyond the
45-day time limitation period; the Human Resources Office advised her to immediately contact
the EEO Office. Six days later, Complainant initiated contact with an EEO Counselor on February
1, 2016, which was 55 days after the interview with the investigator. A statement from
Complainant’s friend included within the Counselor’s Report indicated that as early as the fall of
2013, Complainant contacted him for advice regarding allegations of sexual harassment; he
advised her to speak to someone regarding her rights. With regard to claims a – c, the Agency
found that Complainant did not establish her claim that she was subjected to a hostile work
environment. The subsequent appeal followed.

Neither party submitted any statement or brief on appeal.

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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

As noted above, Complainant served as an Education and Career Specialist, NF-1740-04, with the
Marine Corps Community Services Education Center in Twenty-Nine Palms, California. S1,
Supervisory Education Services Specialist, served as her first-level supervisor. S2, Program
Manager, NF-0301-05, and S3, Director, NF-0301-05, served as Complainant’s second-and third-
level supervisors, respectively. On February 18, 2016, Complainant informed W1, an Investigator,
of incidents that occurred in 2013-2014. At the time, W1 had been investigating an unrelated
matter. W1 subsequently informed management of Complainant’s allegations. On February 18,
2016, the Assistant Chief of Staff appointed W1 to investigate Complainant’s allegations for the
timeframe of 2013-2014. W1 subsequently conducted the investigation. According to Agency
documentation, S2 was removed from Complainant’s chain of command
(date not identified).

Complainant contended that, in January 2016, she informed S1 that she believed S2 had previously
subjected her to sexual harassment, and that she felt uncomfortable around him. She maintained
that she relayed this information to S1, following her (Complainant) participation in
W1’s investigation into another employee’s allegations. She further maintained that S1
subsequently informed S3 that she (Complainant) felt uncomfortable around S2 and wanted no
contact with him; however, there was no official action taken to separate them at the time. She
contended that S1 informed her that since S2 was under investigation at the time, he was permitted
to remain in the organization until the investigation had been concluded. Complainant
stated that S1 subsequently asked her to teach a Narrative Writing class as the only other qualified
instructor was unavailable. Complainant told S1 that she did not want to teach the class because
S2 would be present, and she was afraid. She admitted that S2 did not do anything to her during
class, but she found his presence intimidating. After class, she told S1 that she had done her best;
S1 responded that she knew the situation was difficult, but that she would again speak to S3.
Complainant contended that on February 10 and 11, 2015, S2 attended a class in the same building
in which she worked; she did not teach the class, but asserted that his presence in the building
caused her to feel distressed. She alleged that on February 25, 2016, he walked by her window.
She asserted that he may have been in the building to teach. She stated that when she followed up
with S1 about her concerns, S1 confirmed that she had relayed Complainant’s concerns to S3.
Complainant acknowledged that since voicing her concerns, S2 entered her office minimally.
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S2 maintained that he and Complainant had a friendly relationship from March 2012 through
December 2015, but in January 2016, her attitude changed. He attributed the change to a
combination of personal stressors and his recommendation that she be counseled for poor customer
service. S2 maintained that Complainant never informed him that she felt subjected to a hostile
work environment. S2 maintained that he did not recall having sat through a classroom training
with Complainant on February 2, 2016, but acknowledged that he was in a classroom with her on
February 11, 2016. He explained that he served as one of five facilitators, to include Complainant,
for the “Accessing Higher Education” class held on February 11, 2016. He sat in the back of the
classroom, as he customarily did so, until it was his turn to speak. He stated that the following day,
S3 informed him that Complainant had filed an EEO complaint, and that he should avoid her until
the matter could be resolved. He noted that S3 did not offer any other details about the matter. He
explained that he took S3’s comment as an order not to be in the same classroom as Complainant
when she was teaching. He also noted that no one else issued him any directives to stay away from
Complainant; however, he did not have any direct contact with her following S3’s directive. He
stated that the EEO Office informed him of the allegations against him on or around February 23,
2016. He stated that he attended a two-day training session on February 25 and 26, 2016, for
Learning Management Systems Ethos; he did not see Complainant, and noted that her desk was
not visible from the window. He added that even if Complainant could look out the window, no
one could look in, as the windows were tinted. He averred that he was unaware that he made
Complainant feel scared and denied having behaved in a hostile or threatening manner towards
her.

S3 stated that he learned of Complainant’s specific allegations after the fact; he explained that he
learned of the allegations from the EEO counselor on or about February 23, 2016. He stated that
he did not observe any of the incidents firsthand and had not received any evidence that led him
to believe the work environment was hostile. S3 acknowledged that another female employee
filed a complaint alleging S2 had sexually harassed her; those allegations were referred for
investigation. He stated that Complainant never informed him that she felt subjected to a hostile
work environment; however, once he learned of the allegations, he removed S2 from her chain of
command. S3 noted that S2 was responsible for several programs in the Education Center, but he
directed S2 to not have any interaction with Complainant because she had indicated she did not
want to be in the same building as S2. He added that he also asked S1 to ensure there was no
interaction between them. He followed up with S1 on a weekly basis, but was not notified of any
other incidents.

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
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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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.

Assuming, arguendo, that Complainant established elements 1 – 4 of a harassment claim regarding
claims d - i, we find no persuasive evidence that supports imputing liability to the Agency.
Complainant did not inform management officials of S2’s alleged conduct until January 2016.
Consequently, the Agency was unaware of the matters set forth in claims d – i, many of which
took place years before she informed the Agency. Thereafter, S3 removed S2 from Complainant’s
chain of command, directed S2 to have no contact with Complainant while her allegations were
being investigated, and asked S1 to ensure there was no interaction between them. S3 stated that
he followed up with S1 on a weekly basis, and was not notified of any other incidents.
Complainant acknowledged that since voicing her concerns, S2 entered her office minimally.

With regard to claims a – c, S3 pointed out that S2 had a legitimate reason for entering the building
in which Complainant worked, as he was responsible for the programs in the Education Center;
however, upon learning of Complainant’s allegations, he took steps to limit their interactions. S2
maintained that he did not recall sitting through a classroom training with Complainant on
February 2, 2016. S2 explained that he attended the classes at issue as a facilitator. He noted that
for at least one of the classes, he and Complainant were both facilitators, and that he sat in the back
of the classroom until it was his turn to speak. He did not recall having seen Complainant on
February 25, 2016, and pointed out it was possible that she saw him, but that as the windows were
tinted, he would not have seen her. He explained that he limited his interactions with her as directed
by S3. Complainant offered no rebuttal in response to management’s testimony. We find that these
three isolated incidents, occurring over a 3-week period, were neither severe nor pervasive to rise
to the level of a hostile work environment. We also find no evidence that Complainant’s sex or
disability played a role.

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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.
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 12, 2018
Date