[Redacted], Lolita N., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2021001960 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lolita N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001960 Hearing No. 510-2020-00164X Agency No. 200I-0546-2019-105037 DECISION On February 4, 2021, 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 January 5, 2021 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 Food Service Worker, Grade WG-2, in Nutrition and Food Services for the Agency’s Medical Center in Miami, Florida. On October 15, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on sex (female) when, on August 1, 2019, she was sexually harassed by a male coworker. 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 2021001960 After an 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). Complainant timely requested a hearing but subsequently withdrew her request. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 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”). In order to establish a prima facie case of sexual harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (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 and/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, 903 (11th Cir. 1982). 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). According to Complainant, on the date in question an identified male coworker came-up behind her while she was bent-down picking up a packet of sugar, “mounted her in a spooning fashion,” wrapped his arms around her, pushed his body against her so hard she could feel the co-worker’s genitals, and pushed his head against her. The co-worker admitted physical contact with Complainant but asserted that the contact was accidental. Complainant stated that she immediately told the co-worker “get off.” Complainant immediately reported the matter to her supervisor and requested that the supervisor write-up the co-worker. She stated that when the supervisor initially confronted the co-worker, the co-worker had laughed and tried to make light about what had transpired. Complainant stated that the co-worker asked her if they could “squash it,” meaning to “forgive and forget” what had occurred. The supervisor expressed doubt the co-worker’s touching had been accidental. The supervisor then reported the matter to the manager (female), who consulted with 3 2021001960 Human Resources (HR) and immediately encouraged Complainant to report the matter to Agency police, which she did. The Agency police investigation was unable to substantiate the sexual intent but determined that the co-worker was not exonerated. On August 2, the coworker was ordered to have no contact with Complainant and was reassigned to a different shift. Complainant was referred to the Employee Assistance Program for counseling because the harassment had caused her anxiety. In addition, the Agency provided all the Food and Nutrition Service workers received refresher training on prevention and awareness of sexual harassment. Upon review of the record, we determine that the Agency cannot be held liable for the alleged misconduct by the coworker based on management’s response to the subject incident. The record reflects that once Complainant notified management of her sexual harassment allegation, the Agency met its duty 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 management’s remedial actions were sufficiently expeditions and effective in stopping further harassment of Complainant by the offending coworker. Lutticken v. Dep’t of Health and Human Svcs., EEOC Request No. 05900386 (Apr. 27, 1990). While Complainant alleged that management should have disciplined the coworker more severely, she does not allege that the coworker engaged in any further incidents of harassment.2 In sum, we conclude that the Agency is not liable for the coworker’s actions on the date in question because it took prompt and effective action upon learning of the incident. CONCLUSION Based on the foregoing thorough review of the record, the 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. 2 On one subsequent occasion, Complainant absented herself form the workplace after she saw the co-worker, and management approved her unscheduled leave. 4 2021001960 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). 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. 5 2021001960 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 September 30, 2021 Date