0520180089
03-20-2018
Kiara R,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kiara R,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180089
Appeal No. 0120160961
Hearing No. 461-2015-00033X
Agency No. 20DR00102014102895
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120160961 (September 19, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
EEOC Appeal 0120160961 dismissed the appeal as untimely filed. The decision noted that Complainant's Notice of Appeal indicated that the Agency's decision was received on December 8, 2015. The previous decision reviewed the final decision finding that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final decision to file her appeal with the Commission. Therefore, the previous decision held that, in order to be considered timely, Complainant had to file her appeal no later than January 8, 2016. The decision found that Complainant, however, submitted her appeal by mail and by fax on January 13, 2016, which was beyond the 30-day time limitation. As such, the previous decision dismissed the appeal as untimely.
On request for reconsideration, Complainant's attorney represented that the Agency's final decision was received on December 15, 2015. Therefore, Complainant's appeal filed on January 13, 2016, was timely and should not have been dismissed. In support, the attorney provided a statement from the firm's Office Manager stating that the Agency's final decision was received on December 15, 2105, and provided a date stamp copy of the decision noting that it was received on December 15, 2015. As such, the Complainant's attorney requested that the Commission reverse the previous decision and to reopen Complainant's appeal. The Agency failed to respond to the request for reconsideration.
Upon review of the record, we find that our previous decision erred in dismissing the appeal as untimely filed. It is undisputed that the Agency issued its final decision on Friday, December 8, 2015, and served it on Complainant and her attorney by mail. Therefore, it would have been impossible for the decision to have been received by December 8, 2015. Complainant's attorney provided evidence showing that the final agency decision was received on December 15, 2015. Without other evidence to the contrary, we find that her January 13, 2016 appeal was filed in a timely manner. As such, we find that the previous decision improperly dismissed her appeal. Therefore, we vacate our previous decision dismissing the appeal as untimely filed. Because we are reopening our previous decision, we will now consider the merits of the underlying case, as well as arguments the parties originally submitted on appeal below.
BACKGROUND
During the relevant time, Complainant worked as a Program Specialist, GS-11 at the HealthCare Talent Management at the Agency's facility in New Orleans, Louisiana. Complainant's direct supervisor was the Program Director (female, African-American, Black, and engaged in prior EEO Activity). Complainant also worked with the Supervisory Program Specialist (male, African-American, Black, and engaged in prior EEO Activity) but he did not have primary supervisory duties over Complainant.
On May 6, 2014, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, Complainant was issued the Notice of Right to File her formal complaint. On July 3, 2014, Complainant filed her formal complaint alleging that she was subjected to disparate treatment and harassment on the bases of sex (female), race (Black), color (Black) and retaliation (for the instant EEO complaint).2 In support of her claim of harassment, Complainant alleged the following events occurred:
1. In June 2011, the Program Director instructed Complainant to score Caucasian candidates for the Training Technician positions higher than African American candidates.
2. In July 2011, the Program Director required Complainant to attend the Human Resources Conference which caused a backlog in Complainant's assignment of duties.
3. On or about July or August 2011, the Supervisory Program Specialist made sexual innuendos towards Complainant.
4. On or about August or September 2011, the Supervisory Program Specialist inappropriately touched Complainant in a sexual manner.
5. During August-October 2011, Complainant was pulled from her waiver duties and assigned to assist the Training Technicians with their data entry workload.
6. In October 2011, the Program Director advised Complainant to "stay in pray" when she informed her that the Director referred to her description of a waiver case as and "experiment of training monkeys" and advised Complainant to "find new ways of doing things".
7. In December 2011, the Program Director instructed Complainant to provide a plan to address Complainant's workload while she was on leave.
8. During 2012 and ongoing the Program Director used derogatory nicknames such as, Klansmen, Preacher Boy, the "B" and "N" word, Messy, Devil and smell like sulfur when referring to certain employees. The Program Director referred to the Complainant as the Mole and made derogatory religious comments.
9. In January 2012, the Program Director began assigning Complainant's duties to her Coworker (BZ) and told the Complainant to be more like the Coworker 1 because she was a "Natural Born Leader."
10. March 2, 2012, the Program Director told Complainant she was insecure because the Coworker 1 is reviewing Complainant's work.
11. March 13, 2012, the Program Director told Complainant that she would receive a low performance rating if she made one typographical or grammatical error on waiver reports.
12. On March 16, 2012, the Program Director asked the Complainant's student trainee for assistance regarding a wavier instead of asking the Complainant.
13. In May 2012, no action was taken when Complainant informed the Acting Director (female, African-American, Fair Skinned, engaged in prior EEO activity) that the Program Director humiliated Complainant and other African American staff during meetings and that the Program Director did not listen to Complainant when she began to discuss issues of fraud, waste and abuse regarding bill collection.
14. During a meeting on May 2, 2012, the Program Director stated that she was not going to allow anyone to threaten her team.
15. In November 2012 and April 2013, the Program Director denied the Complainant the opportunity to apply for the position of Supervisory Program Specialist GS12/13.
16. In April 2013, the Program Director used the "N" word in the presence of Complainant when an African American was selected for the Supervisory Program Specialist GS12/13.
17. On April 13, 2013, the Program Director did not include Complainant on emails sent to the staff notifying them of the time change for the Complainant's presentations.
18. On April 19, 2013, Complainant was denied the opportunity to participate in the Virtual Lead Program.
19. On May 17, 2013, the Program Director only approved 59 minutes for the Complainant to facilitate mediation, but approved more time for Coworker 2 and Coworker 1 to attend a conference.
20. On June 27, 2013, the Program Director took no corrective actions after Complainant notified her of the rude behavior exhibited by co-workers while Complainant was conducting training.
21. On July 17, 2013, the Supervisory Program Specialist used the "N" word in the presence of the Complainant.
22. September 3 and 4 September 2013, Complainant sent the Program Director a Report of Contact that labeled the Program Director a racist.
23. On September 5, 2013, the Supervisory Program Specialist pushed Complainant against the table and laughed and said he did not see Complainant.
24. In November 2013, the Program Director asked Complainant if she had filed an EEO Complaint.
25. On December 4, 2013, the Program Director informed the Complainant that whatever was discussed during the Complainant's December 12, 2013, meeting with the Chief Officer (male, Caucasian, White, no prior EEO activity) would be shared with her at a later date.
26. January 13, 2014, the Program Director informed Complainant she would continue to supervise Complainant.
27. January 13, 2014, the Program Director sent Complainant an inappropriate response regarding not creating a certificate for an employee.
28. On February 12, 2014, the Program Director did not forward Complainant's request to volunteer for a detail opportunity within the Veterans Health Administration.
29. February 20, 2014 through April 5, 2014, the Program Director stopped by the Complainant's office on several occasions, called her on the phone repeatedly, and sent multiple emails asking Complainant to close her door.
30. March 14, 2014, the Supervisory Program Specialist came into Complainant's office with his hand impersonating the shape of a handgun.
31. On March 21, 2014, the Program Director asked Complainant if she compared the staff's experience to Special Olympic participants.
32. On March 14, 2014, Complainant informed the Program Director that the Supervisory Program Specialist created a hostile environment.
33. On April 3, 2014, the Program Director denied Complainant the opportunity for a reassignment.
34. As of April 16, 2014, the Program Director has not upgraded Complainant's position from a Program Specialist G11 to a GS12, even though the Office of Personnel Management approved the upgrade in June 2012.
35. On April 17, 2014, Complainant discovered a document that she needed to prepare for the Under Secretary of Health had been misrouted.
36. On or about May 3, 2014, after Complainant informed the Program Director of her intent to file an EEO complaint, Complainant was assigned "Prevention and Management of Disruptive Behavior" training.
37. On May 5, 2014, the Program Director required Complainant to travel to the Oklahoma City Office to facilitate All Employee Survey discussions.
38. On June 6, 2014, the Program Director sprinkled "Holy Water" on the Complainant's office and on her papers.
39. On June 9, 2014, the Program Director's colleague who works in VA Central Office (VACO) informed Complainant of a vacant position in the Human Resources Office.
The Agency dismissed claims (2), (5), (7), (9), (18), (19), and (28) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that these events were separate claims of disparate treatment which were raised outside of the 45-day time limit. The Agency accepted the claims to the extent Complainant alleged that these events occurred in support of her claim of harassment.
At the conclusion of the investigation, Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). However, Complainant withdrew the request for a hearing. Complainant's attorney (Attorney) indicated that Complainant was forced to withdraw her hearing request based on their belief that the AJ had demonstrated clear bias against Complainant and the Attorney. The Attorney noted that after a pre-hearing conference call on July 9, 2015, the Attorney believed that the AJ was not going to afford Complainant an objective hearing. The record showed that the Attorney objected to the AJ allowing for only one day for the hearing. The Attorney believed that the AJ's comments suggested that she had already concluded the outcome of the case. As a result, the Attorney filed a motion asking the AJ to recuse herself. The AJ denied the motion. Accordingly, the Attorney felt forced to withdraw the hearing request and to proceed with a final decision by the Agency.
The Agency issued its final decision finding no discrimination. Complainant appealed.
On appeal, Complainant's attorney alleged that Complainant had to withdraw her hearing request believing that the AJ had already come to a conclusion on her case and that the AJ was biased. The attorney asserted that the AJ discounted Complainant's claim of harassment. Based on comments made by the AJ, they feared that Complainant would not receive a fair hearing. As such, the attorney argued that Complainant was not afforded the right to a proper hearing.
Further, as to the merits of Complainant's claims of discrimination, the attorney consolidated her claims of discrimination into the following four claims:
a. Complainant was subjected to discrimination on the bases of race, color, sex, and reprisal when on April 3, 2014, the Program Director denied her the opportunity for a reassignment.
b. Complainant was subjected to discrimination on the bases of race, color, sex, and reprisal when as of April 16, 2014, the Program Director has not upgraded Complainant's position from a Program Specialist G-11 to a GS-12, even though the Office of Personnel Management approved the upgrade in June 2012.
c. Complainant was subjected to harassment resulting in a hostile work environment on the bases of race, color, sex, and reprisal as evidenced by the 39 incidents listed above from June 2011 through June 9, 2014.
d. Complainant was subjected to sexual harassment on the basis of sex as evidenced by the following incidents:
i. On or about July or August 2011, the Supervisory Program Specialist made sexual innuendos towards Complainant;
ii. On or about August or September 2011, the Supervisory Program Specialist inappropriately touched Complainant in a sexual manner;
iii. On September 5, 2013, the Supervisory Program Specialist pushed Complainant against the table, laughed, and said he did not see Complainant; and
iv. On March 14, 2014, the Supervisory Program Specialist came into her office with his hand "impersonating" a gun and made an inappropriate comment.
The attorney noted that the Agency's final decision found that Complainant failed to prove that she was subjected to discrimination as alleged or that she was subjected to a hostile work environment. The attorney argued that the Agency's final decision erred in its conclusions. The attorney noted that Complainant alleged numerous examples of management actions which were severe and pervasive and created a hostile work environment. The attorney also argued that Complainant's witnesses supported Complainant's assertion that the Program Director favored Caucasian employees over African-American employees. The attorney then claimed that the Agency's analysis failed to find that Complainant was subjected to disparate treatment. Finally, the sttorney argued that Complainant had shown that she was subjected to sexual harassment.
The Agency asked that the Commission affirm its final decision finding no discrimination.
ANALYSIS AND FINDINGS
Standard of Review
As these are appeals from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decisions are 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").
AJ's Conduct at the Hearing Stage
On appeal, it is contended that the AJ was biased against Complainant and Complainant had filed a motion to recuse the AJ. The AJ denied the motion. The motion was filed because of the AJ scheduling one day for the hearing and Complainant believed that one day was not sufficient and was demonstrative of the AJ's belief that Complainant had no case. Without more, however, we do not find that Complainant has established bias by the AJ. Moreover, to preserve her right to expand the evidence of record, Complainant could have continued with the hearing process, preserving any issues for appeal. Instead, Complainant voluntarily withdrew her hearing request. Accordingly, the Agency properly issued a final decision in accordance with Complainant's request.
Dismissal
The Agency dismissed claims (2), (5), (7), (9), (18), (19), and (28), pursuant to 29 C.F.R. �1614.107(a)(2), as untimely raised. EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
Upon review of the record, we find that the Agency's dismissal of these events was appropriate. Further, the Agency correctly investigated these claims to the extent Complainant asserted that these events were provided in support of her claim of harassment.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant alleged two actionable claims of disparate treatment. Specifically, Complainant claimed that the Program Director subjected her to discrimination on the bases of race, color, sex and reprisal when she was denied a reassignment on April 3, 2014 and she was not upgraded to the GS-12 Program Specialist position even though the Office of Personnel Management had approved the upgrade in June 2012.
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to claim (33), Complainant asserted that she requested a reassignment due to the stress she experienced in her workplace. Complainant claimed that the Program Director suggested a mentorship program. However, Complainant took issue with the offer and she indicated that the Program Director was going to "pray on it." Complainant believed that the offer was "set in stone" but later discovered that it was only the Program Director making a recommendation. The Program Director denied Complainant's claim of discrimination and noted that others were reassigned based their application for the position. The Mentorship Responsible Management Official was the Director (Director, Female, Caucasian, Beige, engaged in prior EEO activity) indicated that the Program Director discussed Complainant for the mentorship. However, Complainant did not discuss the mentorship with the Director and no one expressed to her that Complainant was interested in the mentorship. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for not reassigning Complainant to the mentorship.
In claim (34), Complainant asserted that she should have been upgraded to the GS-12 level by the Program Director. Complainant indicated that she discovered documents from the Office of Personnel Management that she claimed had "approved" of the upgrade in June 2012. Complainant confronted the Program Director regarding the Agency's failure to upgrade her position in 2012. The Program Director denied Complainant's assertion and noted that she had an open meeting in which she explained that some positions were to be upgraded and others were not at a staff meeting in January. She claimed that there was a process for review for reclassification by Human Resources. She asserted that a new position had been created and, had Complainant wanted it, she should have competed for the position. The Director noted that Complainant's assertion that the Office of Personnel Management had "approved" the upgrade was inaccurate. She indicated that any upgrade for the Agency must be submitted for approval by the Under Secretary for Health for review and assessment. Management prepared a request for an upgrade, however the submission was never approved.
Upon review, the Agency provided legitimate, nondiscriminatory reason for its actions. We now turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Upon review, we find that Complainant failed to provide any evidence to substantiate her bald assertions that the Agency's reasons were pretext. Therefore, we find that Complainant has not met her burden of establishing that the Agency subjected her to disparate treatment based on her race, color, sex and/or reprisal for her EEO complaint.
Harassment
In her harassment claim, in addition to the two incidents discussed above, Complainant alleged that she was denied reassignment and an upgrade. In addition, Complainant alleged 37 other incidents listed above which occurred from June 2011 through June 9, 2014. Complainant indicated that the Program Director continually harassed Complainant and abused her position of power over Complainant. Complainant believed that the Program Director favored the Caucasian employees over the African American employees, like Complainant. Complainant asserted that her witnesses provided evidence during the Agency's investigation that the Program Director favored Caucasian employees. She also alleged that the Program Director had made blatantly racist remarks and displayed discriminatory attitude. Because of the Program Director's actions, Complainant believed that she halted her professional growth and development. Based on some 14 events, Complainant felt that the Program Director would deny her requests for additional duties, details and reassignment opportunities. As such, based on the totality of the circumstances, Complainant claimed that she established that she had been subjected to harassment at the hands of the Program Director based on her race, color, sex, and protected EEO activity.
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, sex and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's race, color, sex or prior protected activity played any role whatsoever in the decisions regarding the reassignment and the denial of the upgrade in April 2014. Moreover, the responsible management officials provided a legitimate, non-discriminatory explanation for the various events alleged by Complainant. For example, as for claim (2), the Program Director sent Complainant to the conference because she believed it would be good for Complainant's development and that the backlog was not an issue. We also note that some of the alleged nearly 14 events involving incidents in which Complainant failed to apply for positions or assignments such as in the case of the Supervisory Program Specialist position. In sum, Complainant believed that the Program Director's actions created a pattern of how African-Americans were not being given trainings or other things. However, she failed to provide any evidence beyond her bald assertions that the incidents were based on her race, color, sex, and/or protected EEO activity.
Complainant also asserted on appeal that her witnesses supported her claim that the Program Director favored Caucasian employees over African-American employees as alleged in claim (1). The Program Director and management officials denied that race, color, sex and/or protected EEO activity played any role in the workplace. Complainant specifically stated that Coworker 3 would come to her and complaint about the Program Director. We find that the record does not support Complainant's argument. For example, as to claim (1), Complainant alleged that the Program Director instructed her to score Caucasian candidates higher for positions than African-American candidates. However, the others involved on the selection panels denied that they were given any such instruction.
As to events alleged in claims (6), (8), (16), and (21) about the Program Director's use of derogatory nicknames and racially charged words, the Acting Director stated that she heard rumors of the Program Director using such language but she denied knowledge of any inappropriate comments such as the term "monkeys." Furthermore, the Program Director denied making any such racially charged or sexist comments. Complainant claimed that Coworker 4 complained about the Program Director. Coworker 4 averred that she believed Complainant was subjected to harassment by the Program Director. However, the record does not support Complainant's assertions regarding the Program Director's actions were racially charged.
In sum, Complainant failed to prove that her race, color, sex or retaliatory animus played any role in the incidents she proffered as evidence of her harassment claim.
Sexual Harassment
Complainant also alleged that the Supervisory Program Specialist subjected her to sexual harassment. A hostile work environment is an amalgamation of incidents that "collectively constitute one unlawful employment practice." National Railroad Passenger Corp. v. Morgan, 536 U.S. at 117 (quotations omitted). Unlike discrete acts, the incidents that comprise a hostile work environment claim "cannot be said to occur on any particular day" and by their "very nature, involve repeated conduct." Id. at 115.
To establish a claim of hostile work environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems Inc. at 6, 9 (Mar. 8, 1994).
A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17(1993).
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." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The Agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that appellant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. Burlington Industries. Inc., v. Ellerth, 524 U.S. at 764-765; Faragher v. City of Boca Raton, 524 U.S. at 807-808; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
In the case at hand, Complainant alleged four incidents in support of her claim that the Supervisory Program Specialist subjected her to sexual harassment. The events occurred on July/August 2011, August/September 2011, September 5, 2013, and March 14, 2014. Complainant testified that she believed that he was a "pervert" type of person and cause her to feel "creepy" which was based on event (i). As for event (ii), Complainant noted that she was in a small copy room when the Supervisory Program Specialist tried to squeeze behind her. Complainant indicated that she complained to the Program Director about the coworker's actions in September 2011. She averred that the actions stopped at that point. However, subsequently, she alleged that two additional events occurred. In event (iii), Complainant asserted that the Supervisory Program Specialist pushed her. He indicated that he did not see Complainant. This event occurred with Coworker 4 present. Coworker 4 did not know why the Supervisory Program Specialist pushed her. Finally, as to event (iv), Complainant felt uncomfortable when the Supervisory Program Specialist made a gesture which she believed "impersonated" a gun. Coworker 3 averred that the Supervisory Program Specialist was a person who liked to joke with the staff and had always acted in a playful manner. She did not believe Complainant's assertion that his actions were offensive. Coworker 4 averred that she recalled that Complainant would complain about the Supervisory Program Specialist. However, Coworker 4 did not witness any such sexual harassment or inappropriate touching. The Supervisory Program Specialist denied any wrong doing. He noted that it was a tight space and that he bumped her when he bent down to look into his mail box. Based on the totality of the circumstances, we find that Complainant has not shown that the alleged events were sufficient to subject her to sexual harassment.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120160961 is reversed and we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)3
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).
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
March 20, 2018
__________________
Date
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.
2 We note that Complainant also amended her complaint by email dated August 24, 2014, to include additional events which have been incorporated herein.
3 Because we have considered the merits of Complainant's claims for the first time in this decision, we are providing the parties another right to reconsideration.
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