Lida G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Dec 14, 2017

0120160072 (E.E.O.C. Dec. 14, 2017)

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

Lida G.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120160072

Agency No. GIPSA-2015-00030

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the September 2, 2015 final Agency decision (FAD) 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a temporary,
intermittent Agricultural Commodity Technician at the Agency’s Grain Inspection, Packers, and
Stockyards Administration’s Stuttgart Field Office in Stuttgart, Arkansas. Complainant alleges
that in September 2014, a Grader (CW-1) came into the office late with two interns.2
Complainant claims that CW-1 looked tired and hung over and that she could smell alcohol on

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 Complainant referred to CW-1 as her “supervisor;” however, the record indicates that he only
acted occasionally as the Team Lead. Complainant acknowledged during the investigation that
CW-1 was not one of her first or second-level supervisors, and M1 stated that CW-1 was not a
management official or in Complainant’s supervisory chain-of-command. ROI, at 40, 46.
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his breath. Complainant states CW-1 told her that he and the interns were partying at his house
until 3:00 a.m., and Complainant believed that CW-1 was possibly still intoxicated.
Complainant claims that she offered CW-1 some gum to cover up his breath and CW-1 then
began making inappropriate comments such as “come sit on my lap,” “you know you want it,”
and “what, are you scared?” Complainant states that she repeatedly told CW-1 to stop making
those comments and CW-1 responded by saying he was going out to his truck and that she
should join him. Complainant alleges that CW-1 previously made other inappropriate comments
and grabbed her and pulled her onto his lap. Complainant states that she mentioned CW-1’s
comments to another Grader at a different mill, but did not report the incident to management
officials.

On September 26, 2014, Complainant met the terms of her temporary appointment, and was
unavailable to work until her appointment was renewed. On September 30, 2014, a co-worker
(CW-2) reported CW-1’s comments to the Field Manager (M1).3 M1 reported the incident to
her supervisor, and management ordered an investigation into CW-1’s conduct. Complainant’s
appointment was renewed on December 1, 2014, and management took measures to ensure that
Complainant did not work with CW-1 thereafter.4

On January 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected
her to sexual harassment and a hostile work environment on the bases of race (African-
American), sex (female), and age (46) when in September 2014, and other unspecified dates,
CW-1 subjected her to inappropriate remarks, such as informing her (with a strong smell of
alcohol on his breath) that he was “hung over bad” because he had been out all night drinking
with his interns; asking her to “come sit on [his] lap,” and later, to “come get in [his] truck with
[him];” asking her “what's wrong you scared of it;” and further commenting “you know you
want it.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant’s
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged conduct at issue was insufficiently severe or
pervasive to establish sexual harassment. The Agency determined that CW-1’s comments, while
sexually suggestive, were an isolated incident and did not demonstrate a work environment
permeated with sexually-charged language or behavior on a consistent basis. Further, the
Agency noted that management took prompt remedial action as soon as it became aware of the
alleged conduct. M1 became aware of the alleged harassment on September 30, 2014, and she

3 The EEO investigator noted that CW-2 is no longer a federal employee and could not be
reached to participate in the investigation. ROI, at 73.

4 M1 indicated that disciplinary action against CW-1 was pending with Human Resources as of
April 28, 2015.
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immediately informed the Agency’s Field Management Division on October 1, 2014. M1 stated
that Complainant and CW-1 were no longer required to work together and there have been no
further incidents of similar conduct reported by Complainant. Thus, the Agency concluded that
even if Complainant’s allegations constituted sexual harassment, there was no basis for Agency
liability.

With respect to Complainant’s race and age-based hostile work environment claim, the Agency
concluded that none of the alleged incidents were based on Complainant’s age or race. As a
result, the Agency found that Complainant had not been subjected to discriminatory harassment
based on her race or age. Complainant subsequently filed the instant appeal without submitting
any arguments or contentions in support.

ANALYSIS AND FINDINGS

Hostile Work Environment - Sexual Harassment

To establish a case of sexual harassment creating a hostile work environment, Complainant must
show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was
subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the
harassment affected a term or condition of employment, either unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

The Commission notes that Complainant chose not to request a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here, the
record shows that on September 30, 2014, CW-2 reported to M1 that CW-1 had made several
inappropriate, sexual comments and advances to Complainant such as “come sit in my lap” and
“you know you want it.” ROI, at 46, 83, 114-15. Complainant stated that she requested that
CW-1 stop talking to her like that, but he continued to embarrass her and told her that she should
join him in his truck. Id. at 41. Complainant further alleged that there were several other
incidents where CW-1 had acted inappropriately toward her including once he grabbed her and
pulled her into his lap and another occasion where he forced her to brush past him to leave a
room. Id. Complainant stated that CW-1’s behavior humiliated and degraded her. Id. The
Commission concludes that CW-1’s conduct unreasonably interfered with Complainant’s work
and created an intimidating and hostile environment. As a result, the Commission concludes that
Complainant was subjected to sexual harassment by CW-1.
The Commission will now turn to whether there is a basis for imputing liability to the Agency
for CW-1’s harassing conduct. As noted above, the record evidence demonstrates that CW-1
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was Complainant’s co-worker and not in her supervisory chain-of-command. CW-1
occasionally acted as the Lead Grader; however, there is no evidence that he had any supervisory
authority over Complainant. See ROI, at 74-82.

In the case of co-worker harassment, as is the case here, 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.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar.
8, 1994). Here, the record reveals that once M1 received CW-2’s report of CW-1’s harassing
behavior, she reported the conduct to her superiors who then initiated an investigation. ROI, at
46. Complainant had met the terms of her appointment on September 26, 2014, and was no
longer in the workplace after that date; however, when her appointment was renewed in
December 2014 and she was brought back to work, management ensured that Complainant did
not work at any site with CW-1 and removed him from dispatch duties. Id. M1 added that
disciplinary action was still pending with Human Resources at the time she submitted the
affidavit. Id. While Complainant asserts that she still sees CW-1 occasionally, there is no
evidence that any similar harassing conduct recurred. Thus, nothing in the record shows that the
Agency’s corrective actions were insufficient or inappropriate. As such, the Commission finds
that Complainant failed to establish that the Agency should be held liable for CW-1’s conduct;
therefore, her claim that she was subjected to sexual harassment for which the Agency must be
held liable must fail.

Hostile Work Environment – Non-Sexual Harassment

To establish a claim of non-sexual, discriminatory harassment, Complainant must show that: (1)
she belongs to 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 her 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). 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).

Therefore, 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 her protected classes, i.e., in this case, race, sex, or age.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

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The Commission finds that Complainant has not established that she was subjected to a
discriminatory hostile work environment on the alleged bases. Even assuming that the alleged
conduct was sufficiently severe or pervasive to create a hostile work environment, there is no
persuasive evidence in the record that Complainant’s protected classes played a role in any of the
Agency's actions. Accordingly, the Commission finds that Complainant has not shown that she
was subjected to a discriminatory 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 for the reasons set forth herein.

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
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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

December 14, 2017
Date