[Redacted], Elaine P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2021001101 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elaine P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021001101 Agency No. DLAB-20-0050 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 November 6, 2020, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Branch Chief, GS- 0343-13, at the Agency’s J62CH Commercial and Government Entity (CAGE) Program facility in Battle Creek, Michigan. On February 13, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to a hostile work environment (sexual) based on sex (female) when: 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. 2021001101 2 1. From July 31, 2019 to October 22, 2019, Coworker 1 (C1) frequently addressed Complainant with inappropriate nicknames in his emails and then called her government cell phone to find out why she was not responding back to him. 2. On October 22, 2019, C1 kissed the back of Complainant’s head in front of other employees attending a staff meeting and whispered into ear “hey baby,” causing a very uncomfortable and embarrassing situation. 3. From November 3, 2019 to the present, Complainant’s chain of command was made aware of ongoing issues after the Agency provided C1 a no contact order and then detailed him to another area in her division. a. C1 still had access to Complainant when the Portfolio Manager (M1), would schedule staff meetings that included C1 even though Complainant often reminded her of the no contact order in place. b. C1 violated the no contact order when he made personal and non-work related comments to an employee on Complainant’s team which caused the employee to ask Complainant questions of why C1 would contact her, which put Complainant in a position of feeling vulnerable to the effect of C1’s contact with her employees as a way of getting Complainant to communicate with him. c. The perception of employees that C1 was detailed to another area due to the fault of Complainant has put her reputation at risk and tainted her integrity as a supervisor and individual. d. According to Complainant’s understanding of HR guidance on detailed employees, an employee such as C1 may return to his previous position, which has intensified her stress levels. 4. On February 3, 2020, Complainant was informed she will need to continue temporary coverage of duties for S1, her immediate supervisor, while she is out the office between March-April 2020, and continue to cover C1’s previous duties. Due to inaction of management for office coverage, this created a hardship on Complainant to work outside of her job duties, causing elevated stress which has culminated into medical concerns. 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 (AJ). 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. Complainant filed the instant appeal. 2021001101 3 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). 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”). 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’s guidelines on sexual harassment provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term of condition of an individual’s employment.” 29 C.F.R. 1604.11(a). “In determining whether unwelcome sexual conduct rises to the level of a ‘hostile environment’ in violation of Title VII, the central inquiry is whether the conduct “unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.” EEOC Policy Guidance on Current Issues of Sexual Harassment (March 19, 1990), p. 14; 29 C.F.R. 1604.11(a)(3); see also Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993). Sexual flirtation, innuendo, or vulgar language that is merely trivial or annoying will not establish a hostile environment. EEOC Policy Guidance, supra, p. 14. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person. Id. 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 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (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 2021001101 4 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. In the case of coworker harassment, 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. Id. Complainant alleges that she was subjected to harassment based on her sex by her Coworker (C1). Here, even if Complainant established a prima facie case of harassment, we find that the Agency consistently took immediate and appropriate corrective action. Thus, there is no basis for imputing liability. The evidence shows that Complainant and C1 were both managers in the CAGE Program. The CAGE Program had two branches. Complainant oversaw a branch located in Michigan. C1 oversaw a branch located in Pennsylvania. Both Complainant and C1 have the same first line supervisor (S1). Although Complainant and C1 were located in different states, the nature of their responsibilities required regular virtual contact, and they occasionally interacted in person. Complainant and C1 first met in August 2019, in Ohio during supervisor training. In October 22, 2019, both Complainant and C1 were at the Agency’s Michigan facility for a meeting. Complainant asserts that C1 arrived late to the meeting, kissed the back of her head, and whispered “hey baby” in her ear in front of her colleagues. On October 30, 2019 at about 4:00 pm, Complainant reported the incident to S1. She also reported that C1 had called her inappropriate nicknames in their email and messenger correspondence including “a peach,” “girlfriend,” and “Bay-bee.” At 8:00 am on October 31, 2019, S1 contacted the human resource specialist (HR1) and the Agency’s Sexual Assault Prevention and Response Team (SAPR) to address Complainant’s allegations. On November 4, 2019, S1 issued C1 a no contact order stating that effective immediately, C1 was to have no direct or indirect contact with Complainant due to Complainant’s allegations of sexual harassment and inappropriate conduct. The letter further stated that failure to adhere to the no contact order could result in disciplinary action, including termination. The letter also noted that if C1 had a business reason necessitating contact with Complainant, he was to notify S1, and she would facilitate the communication. On November 15, 2019, Complainant’s allegation was forwarded to Federal Protective Services (FPS), Department of Homeland Security for a criminal investigation. Once the investigation was completed, the Western District of Michigan Assistant U.S. Attorney declined to prosecute 2021001101 5 the case. FPS returned the case back to the Agency’s Office of Inspector General (OIG) for investigation.2 On November 20 and 21, 2019, Complainant contacted HR1 and complained she received indirect contact from C1. HR1 consulted with Complainant’s second line supervisor (S2) and it was decided that C1 would be detailed to the Portfolio Team and would be supervised by the team’s Portfolio Program Analyst (PA1). On November 29, 2019, S1 removed C1 from all CAGE email groups, meeting invites, system access, and took over supervision of C1’s staff. C1 was no longer a member of CAGE. On December 2, 2019, C1 was officially detailed to PA1’s team. Regarding claims 1 and 2, the evidence shows that within one day of Complainant reporting the incidents to management, S1 and HR1 took measures to eliminate all direct and indirect contact between Complainant and C1. The Agency contacted HR the morning after being made aware of the alleged incidents the evening before. Then, after two business days implemented the no contact order. There is no indication there was any contact in that short time period between Complainant and C1. Regarding claim 3a, the record shows that Complainant attended a Portfolio Team meeting while acting on behalf of S1 in her absence. S1 stated that Complainant was instructed not to attend Portfolio Team meetings. When Complainant contacted HR1 on November 20, 2019 and November 21, 2019, alleging that she was still receiving indirect contact from C1, HR1 contacted S2 who determined the best way to mitigate the risk of any future contact between Complainant and C1 was to detail C1 to a set of duties outside the CAGE program and have him report directly to the PA1. PA1 stated that during the call-in meeting at issue, C1 was in attendance to provide an update to the program managers on an item of interest. However, C1 did not have any updates and did not speak directly or indirectly to Complainant. Regarding claim 3b, C1 stated that he reached out to a senior CAGE employee to inquire about Complainant’s health because she had been out sick. C1 stated that the employee’s decision to tell Complainant about the conversation was the employee’s decision and not solicited by C1. C1 stated that both S1 and PA1 provided guidance to him to ensure the required separation was in place pursuant to the no contact order. C1 further noted that he did not interact with Complainant during the Portfolio Team meeting. S1 stated that Complainant told her that C1 contacted one of her employees but did not provide specific details. S1 then contacted C1 via email and phone and told him to cease communication with anyone other than his own team. 2 The Agency OIG investigation began in March 2020, and the OIG issued a report substantiating inappropriate conduct on June 4, 2020. 2021001101 6 Regarding claims 3c and 3d, S1 reported that Complainant did not inform her of any concerns regarding employees’ perceptions or concerns regarding C1’s return to his position. Thus, management did not have an opportunity to take formal action with regard to these issues. Regarding claim 4, S1 noted that acting on S2’s behalf in her absence was a normal responsibility for her role as a supervisor in the CAGE program. In addition, Complainant served as acting manager from February 20-28, 2020, and not March or April 2020. S1 also told C1 that she was available by phone for any emergencies. S1 stated that Complainant never reported that she had elevated stress, and noted Complainant had an entire team to assist her in her responsibilities. When S1 returned, Complainant informed her that the entire team performed well while she was away. We find that with respect to all claims, once Complainant reported her concerns to management, the Agency took immediate, appropriate and effective actions to stop the unwanted behavior and address Complainant’s allegations. Accordingly, there is no basis for imputing liability for sexual harassment to the Agency. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 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). 2021001101 7 Complainant should submit his or her 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 or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, 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. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/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. 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. 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. 2021001101 8 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 April 25, 2022 Date