[Redacted], Gail W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Mar 18, 2021

Appeal No. 2020001567 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gail W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2020001567 Agency No. DIA-2019-00018 DECISION On December 23, 2019, 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 27, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Intelligence Officer, GG-0132-11, at the Agency’s Asia-Pacific Regional Center in Washington, D.C. On March 19, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and in reprisal for prior protected EEO activity when: 1. From November 27, 2017 until January 8, 2019, a colleague (the Chief of another branch (BC)) subjected Complainant to sexual harassment; and 2. On January 17, 2019, the Chief of the East Asia Division (DC) retaliated against Complainant by issuing an official notice reprimanding her for criticizing the DC’s handling of her sexual harassment allegation. 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. 2020001567 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final agency decision without a hearing, and in accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). That decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. The instant appeal followed. Complainant claimed that on November 17, 2017, BC shook her hand for longer than five seconds in a way that made her uncomfortable. Complainant admitted, however, that she did not report the alleged incident until January 2018. IR 343-44, 346-48. BC acknowledged that he did talk to Complainant, but that he was merely introducing himself as a new branch chief, that he had introduced himself to 30 people that day, and that he had not known that there was a problem until November 29, 2018, over a year later. IR 402-05, 455. Complainant next averred that on February 8, 2018, she told BC to leave her alone after he tried to engage in a conversation with her but did not report the incident at all. IR 344, 351-54. BC affirmed that he could not recall the incident. He stated that the only thing he could remember was that sometime in February 2018, the DC informed him and the other branch chiefs that someone had registered a complaint against one of them without specifying who it was, and that the branch chiefs needed to be careful about what they said. IR 405-06. Third, Complainant alleged that on July 27, 2018, BC had been caught staring at her during a happy hour. She further stated that she texted her second-level supervisor about the incident and that he told her to ignore BC’s behavior. IR 344, 357-59. The BC denied that the incident had even occurred, and that he did not even know that there was an issue until August 17, 2018, when his direct supervisor warned him that Complainant had an issue with him, believing that he, BC, had some interest in Complainant personally. BC reiterated that he never said or did anything to give Complainant that impression, and that he was with his fiancé on the day that the incident allegedly took place. IR 406-08. Finally, Complainant claimed that on January 8, 2019, BC came over to her work area to speak with a co-worker. IR 344, 359-65. BC acknowledged that this was true. He averred that Complainant’s coworker had informed him that she had an intelligence product that was ready to be released and needed verification, and that he had agreed to review the document directly from the co-worker’s computer screen. He further stated that he was not aware until he arrived at the co-worker’s desk that Complainant was situated two desks down. He also stated that Complainant’s supervisor advised him to move away from the area and that he did so immediately, but that DC still issued him a letter of caution about the incident. IR 408-11. DC affirmed that on that day, Complainant came into her office and demanded to know why BC was in her workspace, that she also advised BC to leave the area, and that Complainant again came to her office visibly upset and yelling. In addition, DC noted that the co-worker did not complain of being harassed by BC. IR 427-32. 2020001567 3 Complainant stated that on January 17, 2019, DC retaliated against her in response to her criticism of DC’s handling of the incidents involving BC by issuing her an official notice pf reprimand. IR 344, 365-72. In the memorandum from DC to Complainant dated January 17, 2019, DC advised Complaint not to discuss her issues with BC with her coworkers, to avoid crossing paths with BC wherever possible, and to report any further incidents to her immediate or second-line supervisor. DC further stated in the memorandum that she understood Complainant’s frustrations and took her concerns very seriously. IR 579-80. DC denied that the memorandum was a reprimand. IR 426, 432-38, 546. ANALYSIS AND FINDINGS Standard of Review 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”). Sexual Harassment - Incident (1) 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). Complainant alleged several incidents of what she claimed to constitute sexual harassment. The Commission finds that there is insufficient evidence demonstrating any sexual conduct directed toward Complainant. With regard to the November 2017 incident, the record evidence shows that BC was introducing himself as a new branch chief to members of the staff and shook Complainant’s hand. Complainant stated that she was uncomfortable with how long BC held her hand while talking to her. 2020001567 4 As to the February 2018 incident, Complainant claimed that she told BC to leave her alone after he said “Hello, how are you?” walking past her in a hallway. BC stated that he was not even aware that there was a problem until the DC had told the branch chiefs that a staff member had registered a complaint against one of them. Concerning the July 2018 “staring” incident, there is no corroborating evidence that this incident occurred as described by Complainant. BC denied staring at Complainant and noted that his fiancé was with him while he was supposedly staring at Complainant. Regarding the incident that occurred in January 2019, BC responded to a coworker’s request to verify an intelligence product for release, and that verifying the document directly from the coworker’s screen was the quickest and easiest way to do so. BC was subsequently asked to leave the area after Complainant complained. Even assuming arguendo that these incidents occurred as Complainant described and were unwanted conduct of a sexual nature, we find that they did not rise to the level of unlawful sexual harassment. The conduct alleged was not sufficiently severe or pervasive as to alter the conditions of Complainant's employment or create an abusive working environment. Further, the record establishes that BC received a Letter of Caution instructing him to have no contact with Complainant following her report of the alleged conduct. There is no evidence that any similar conduct recurred thereafter. The Commission therefore concludes, based upon the totality of the circumstances, that Complainant has not presented evidence sufficient to prove that she was subjected to a hostile work environment due to sexual harassment, as alleged. Reprisal - Incident (2) To prevail in a disparate treatment claim, including reprisal, Complainant must satisfy the three- part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of reprisal. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978); Homer B. v. Dep’t of the Interior, EEOC Appeal No. 2019005980 (Dec. 21, 2020) citing Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), The prima facie inquiry may be dispensed with in this case, however, since the DC articulated a legitimate and nondiscriminatory reasons for issuing Complainant the memorandum dated January 17, 2019. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). DC denied that the memorandum was a reprimand and there is no language in the memorandum reflecting an intent to issue a disciplinary action. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 2020001567 5 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Apart from her own unsupported assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by Agency management regarding their actions or which cast doubt upon their veracity as witnesses. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented, and that evidentiary record is insufficient to support a finding that DC harbored any sort of retaliatory motivation in connection with the January 2019 memorandum. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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. 2020001567 6 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. 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 18, 2021 Date