[Redacted], Foster W., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 2021Appeal No. 2021000292 (E.E.O.C. Apr. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Foster W.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000292 Agency No. 19-00027-02862 DECISION On October 15, 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 September 14, 2020 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Police Officer (Instructor), Grade GS-9, at the Agency’s Security Battalion in Marine Corps Base Quantico, Virginia. On April 10, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on sex (male) when: a. On or around January 15, 2019, the Battalion Equal Opportunity Representative told Complainant that a female Marine witness was considering making a formal complaint which would claim that Complainant’s pants were too tight and she could see the outline of his penis. The following day, Complainant returned with a different pair of trousers 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 202100092 and the Battalion Equal Opportunity Representative stated he saw no difference in the fit of the trouser. b. On February 5, 2019, while giving instruction, the Delta Watch Commander stated in front of the class he could see Complainant’s “dick”. c. On February 6, 2019, Complainant’s first-level supervisor (Training Chief) told Complainant that someone had taken a picture of Complainant and forwarded it to the chain of command to show the outline of his penis. d. On February 6, 2019, Complainant's second-level supervisor, the Assistant Operations Officer, told Complainant that the Training Chief had shown him the photo of Complainant’s pants/groin area and made comments to him and others about his penis. The Assistant Operations Officer suggested a larger size trouser. When Complainant tried on a larger size, the Assistant Operations Officer inspected the fit of the pants in front of everyone and despite the pants being too big for Complainant, told Complainant this was the size Complainant needed to wear. e. On February 19, 2019, the Alpha Watch Commander wrote remarks about the Complainant’s pants in an After-Action Review paper. f. On April 11, 2019, the Battalion Commanding Officer insisted Complainant take administrative leave on April 15, 2019, even though he did not want to take leave. Later that week, the Training Chief called him to tell him to take more time off. g. On April 11, 2019, a male Marine Corps Police Officer (MCPO) submitted a complaint to Human Resources about Complainant’s pants. h. On April 23, 2019, the MCPO turned his back on Complainant at the gate to the base and refused Complainant's identification to gain access to the base. i. On an unspecified date, the female Marine witness took a picture of Complainant’s crotch and showed it to the Alpha Section. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 3 202100092 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”). Claims a., b., c., d., e., g., and i. Complainant's claims of sexual harassment creating a hostile work environment required that he establish: (1) he belongs to a protected class; (2) he was subjected to unwelcome sexual verbal or physical conduct; (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 Sys., Inc. 510 U.S. 17, 21 (1993); Henson v. City of Dundee, 682 F.2d897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). An employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate 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 it exercised reasonable care to prevent and correct promptly any harassing behavior. See Burlington Indus., 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. Construing all evidentiary inferences in Complainant's favor, we find that Complainant unable of demonstrating that he was sexually harassed in violation of Title VII. The record does reflect that at least one image of Complainant was shared among members of the Security Battalion. However, both managers and co-workers opined that Complainant's pants in both form and fit were too tight. In her statement, the female Marine witness denied taking the photograph or making a formal complaint, but had overheard others talk about Complainant’s ill-fitting pants. 4 202100092 The male MCPO stated that he did indeed notify Human Resources that he found Complainant’s pants inappropriate. While it is reasonable that Complainant may have been upset about being ridiculed and photographed without his consent, it is unclear who captured the pictures of Complainant's pants or distributed them within the Security Battalion. The Delta Watch Commander denied saying that he could see Complainant’s “dick.” With respect to the After- Action Report, the Alpha Watch Commander wrote a review impugning the quality of the law enforcement training provided by Complainant and three other instructors from his section. The Alpha Watch Commander did reference Complainant implicitly: "No one should be able to outline an instructor's anatomy while he is instructing. This has been complained about every time this particular instructor is teaching a block of instruction in front of my section." Finally, as soon as Complainant reported that he was being humiliated by co-workers about his pants and photograph thereof, the chain of command conducted a preliminary inquiry. The officer responsible for the command inquiry recommended the Assistant Operations Chief be counseled for having Complainant try on his larger sized pants and then displayed Complainant wearing those larger pants in front of others. The Operations Officer testified that the Delta Watch Commander and Assistant Operations Chief and Delta Watch Commander had indeed been disciplined for improperly handling the matter of Complainant's pants. Despite his contention that Agency’s reaction to his complaints was inadequate, Complainant acknowledged that Agency management had taken corrective action which resulted in comments about his pants "tapering off." We noted that the inquiry officer also concluded Complainant himself was partially at fault in the matter. Specifically, the inquiry officer explained that Complainant had been wearing an unauthorized brand of pants. Claims f and h Regarding Claim h. that the MCPO had turned his back on Complainant and refused his identification, we have determined that teasing which is neither severe nor pervasive does not meet the standard for actionable harassment. We note that this matter did not address Complainant’s denial of access, but rather was a claim of a breach of safety procedure (that Complainant’s identification should have been examined for entry, whether the official knew Complainant or not). Similarly, as to Complainant’s Claim f. about management instructing him to take leave involuntarily, we have consistently held routine admonishments and everyday indignities of employment do not make a hostile workplace in violation of Title VII. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s decision finding that Complainant was not subjected to discrimination as alleged. 5 202100092 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). 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). 6 202100092 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 April 8, 2021 Date Copy with citationCopy as parenthetical citation