[Redacted], Dalton C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2020003657 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dalton C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003657 Hearing No. 510-2018-00198X Agency No. BOP-2017-0571 DECISION On June 4, 2020, 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 May 5, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Unit Manager Grade at the Agency’s Federal Correctional Institution in Coleman, Florida. At that time, Complainant’s first-line supervisor (S1) was the Associate Warden (female) and his second-line supervisor (S2) was the Warden (male). On May 12, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex (male and refusal of quid pro quo sexual advances) when, from January 2017 to April 2017, S1 sexually harassed Complainant by sending him 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 2020003657 multiple texts and pictures, asking him out on a date, threatening him with disciplinary action, and giving him a lower than deserved rating when Complainant turned down S1’s request for a date. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Complainant subsequently withdrew his hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, through a legal representative, Complainant attacked S1’s credibility in S1’s assertion that Complainant had hacked S1’s phone and copied images from S1’s social media and then falsely accused S1 of sending those images to Complainant. Complainant argues S1 discriminatorily downgraded Complainant’s performance rating after Complainant declined her invitation for date. Complainant further asserted that S1 made severe sexual advances that subjected him to quid pro quo harassment and created a hostile work environment for Complainant. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). This Commission, as well as the U.S. Supreme Court, have moved away analyses that discuss “quid pro quo” sexual harassment. Instead, it is more useful consider sexual harassment in terms of whether it results adverse employment action and the extent to which sexual harassment that creates a hostile work environment. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999). To establish substantiate a case of sexual harassment discrimination, Complainant must prove, by a preponderance of the evidence, the following five elements: (1) that he is a member of a statutorily protected class; (2) that she was subjected to unwelcome sexual conduct related his gender (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 at 903 (11th Cir. 1982). 3 2020003657 Claims of sexual misconduct are 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 (Mar. 8, 1994). However, even assuming Complainant was able to establish that S1 engaged in the conduct alleged,2 a fair reading of the record reflects that the Agency has responded to the situation in a manner that established an affirmative defense so that it cannot be held liable for sexual harassment by S1 as alleged. Once Complainant notified S2 of his sexual harassment allegation, the Agency met its obligation to investigate the sexual harassment charge promptly and thoroughly. Rodriguez v. Dep’t of Veterans Affairs, EEOC Appeal No. 01953850 (Aug. 29, 1996). Furthermore, we find the Agency’s remedial actions were immediate and appropriate in halting S1's conduct toward Complainant. Lutticken v. Dep't of Health and Human Svcs., EEOC Request No. 05900386 (Apr. 27, 1990). Specifically, after Complainant reported S1’s advances to S2, S2 initiated an immediate internal affairs investigation into the matter. The Agency’s internal affairs investigation substantiated that S1 had sent unprofessional texts to Complainant and that S1 was not forthcoming about deleting the text messages from her phone. The internal affairs investigation also revealed, however, that Complainant was not coerced into a social relationship with S1. We observe that, like S1, Complainant also claimed to have lost the sim card evidence of the texts he had received from S1. Moreover, on at least one occasion, the evidence shows Complainant had initiated an off-duty exchange with S1 by texting her with words to the effect of “Hi, beautiful.” As to Complainant’s position that S1 downgraded his performance based on unlawful motivations, the Agency's internal affairs investigators concluded those accusations unsubstantiated. Moreover, after careful review of the record, we conclude Complainant has not provided adequate evidence to dispute that Agency investigators conclusions about the legitimate nature of the disputed performance appraisal. Ultimately, the Agency officially suspended S1 because she had sent Complainant texts that were inappropriate as his supervisor. Complainant does not dispute that S1’s actions ceased once Agency management intervened and investigated his sexual harassment allegation. In sum, the Agency is not liable for sexual harassment in the present matter because it reacted immediately by thoroughly investigating the incident and thereafter corrected the problem effectively so that Complainant was protected from further impropriety. 2 We note that Complainant withdrew his request for a hearing before an EEOC AJ. In so doing, Complainant waived his opportunities to have an AJ make credibility determinations and for his legal representative to cross-examine witnesses. 4 2020003657 CONCLUSION Accordingly, based upon the above analysis, this Commission AFFIRMS the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 5 2020003657 Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 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 29, 2021 Date