U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raquel T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019003874 Agency No. HS-TSA-01764-2017 DECISION On May 31, 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 May 3, 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. ISSUES PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to harassment and discriminated against on the bases of sex (female) and reprisal for protected EEO activity (reporting sexual harassment), when Complainant was allegedly harassed after a consensual sexual relationship ended; and she received inappropriate comments, she received a lowered performance appraisal rating, and her employment was terminated. 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. 2019003874 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO), SV-1801/E-Band at the Agency’s Dallas Love Field Airport (DAL) in Dallas, Texas. On September 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 as evidenced by nine separate events that form the bases of her claims. . Claim 1: In or around September 2016, or October 2016, management uttered sexually based comments to Complainant. Complainant alleged that a coworker, a Transportation Security Officer (TSO1), subjected her to repeated sexual advances between September and October 2016. She asserted that TSO1 asked her out on dates, commented that he found her attractive, and commented about her birthmark. Complainant also alleged that TSO1 stated that he had a birthmark on his penis, and asked Complainant if she wanted to see it. Complainant asserted that she immediately reported the comments to a Supervisory Transportation Security Officer (STSO1) and a Transportation Security Manager (TSM1). Complainant alleged that management did not seem to believe her and stated that they would get back to her but failed to do so. TSO1 denied having made the alleged comments, asserting that this is not a comment he would make to any coworker. STSO1, Complainant’s first-line supervisor at the time who was present on the shift during which the comments were allegedly made, acknowledged that TSO1 could be rude and a bully, but STSO1 had no knowledge of the comments at issue. STSO1 however recalled that Complainant had been upset after TSO1 made a comment about his 15-year seniority over Complainant, stating that Complainant was not in a position to tell him what to do; and that TSM1 had a discussion with TSO1 about those comments. TSM1 recalled that Complainant reported a sexual comment made by TSO1. TSM1 asserted however that she could not recall any of the details of Complainant’s allegations based on the number of months that had passed since Complainant reported the matter. Three witnesses, TSO2, TSO3, and TSO4, who are all Complainant’s coworkers performing the same duties as Complainant, provided testimonies. TSO2 stated that Complainant told her about the comment. TSO3 stated that Complainant told her that she reported concerns about sexual harassment and that management did not take any action in response. TSO4 stated that she was present when TSO1 made statements about his seniority, asserting that the comments were not of a sexual nature. Record evidence indicated that, following the alleged incident, Complainant changed her duty shift and reported to a new set of supervisors. Record evidence also indicated that management conducted an administrative inquiry into Complainant's claims regarding TSO1's alleged advances and that the inquiry concluded there was insufficient evidence to substantiate Complainant's allegation. 2019003874 3 In rebuttal, Complainant stated that it is obvious the offending officer, TSO1, is not going to admit to the alleged comment. She asserted that TSM1 had stated that STSO1 reported TSO1’s comments to Assistant Federal Security Director-Screening (AFSD-S1) but no action was taken to address her allegation. Complainant stated that STSO1 listened to the comment and stopped Complainant to indicate that Complainant needed to speak to TSM1. Complainant asserted that STSO1 followed the procedures for dealing with sexual harassment reporting. Complainant contended that TSM1 recalled discussing TSO1’s comment with STSO1 and Complainant, indicating that this was support for the veracity of her allegations. Claim 2: In or around January 2017, management uttered sexually based comments to Complainant. Complainant indicated that she terminated a one-month relationship with a second Supervisory Transportation Officer (STSO2, who is referred to in the record as “former,” indicating that he is no longer employed by the Agency), in February 2017, but that he continued to pursue her. Complainant stated that STSO2 invited her to his home or to travel out of town and that he was overly observant of her friendship with a fifth coworker, another Transportation Security Officer (TSO5). Complainant did not identify any specific dates of the alleged incidents or whether the behavior was continuous. She however asserted that STSO2 and a Lead Transportation Manager (LTSM) were subjecting her to harassment, intimidation, and a hostile work environment for assuming she was having a relationship with TSO5. Complainant indicated that STSO2 was not in her chain of command. LTSM indicated that she was unaware of Complainant’s relationship with STSO2 until she was contacted regarding the instant complaint. Record evidence reflected that an informal inquiry conducted by management addressed Complainant’s allegations regarding STSO2 and concluded that Complainant and STSO2 had had an unreported consensual intimate relationship. The inquiry also concluded that there was insufficient evidence to substantiate Complainant's claims that STSO2 engaged in subsequent unwelcome conduct. In rebuttal, Complainant indicated that, by giving her the termination letter, LTSM and STSO2 presented a clear message that they were not agreeable with Complainant’s standing up against sexual harassment, bulling, intimidation, and a hostile work environment. Claim 3: In or around February 2017, management stated, "I do not have any candy but I have something else that you can put in your mouth." Complainant alleged that a fourth Supervisory Transportation Officer (STSO4) approached her sometime in March or April 2017, and asked if she had any candy left. Complainant indicated that she replied that she did not have any and that she asked STSO4 if he had any more candy. Complainant alleged that STSO4 responded with the statements at issue. 2019003874 4 Complainant stated that she walked away from the interaction and verbally reported the comments to STSO2 a few days later. Complainant alleged that STSO2 laughed at her and stated that he did not believe her. Complainant stated that she did not report the alleged incident to management because no action had been taken regarding her allegations in Claim 1. STSO4 affirmed that he brought and shared candy at work but denied making a sexual comment to Complainant. In rebuttal, Complainant contended, and this contention is unclear, that she was not willing to be treated in the same manner regarding STSO4 and his disgusting gestures and comments. Complainant added that she was the victim of STSO4, asserting that he was the perpetrator and that her "words had already fallen on deaf ears in the past." Claim 4: On or around April 1, 2017, management stated, “No, but you can sit on my lap." Complainant alleged that, in or around mid-April 2017, she asked STSO4 to get up from a chair; however, STSO4 pushed the chair back, spread his legs open, and replied with the statement at issue. Complainant stated that she did not respond and that STSO4 walked away. Complainant stated that she did not report the incident to management because she felt they would not believe her and that she filed the instant complaint instead. STSO4 denied Complainant’s allegations, asserting that he did not make the statement at issue. In rebuttal, Complainant reiterated the statements she made in Claim 3. Claim 5: On or about April 2, 2017, Complainant was charged Absent Without Leave (AWOL). It is unclear why Complainant made this allegation as she acknowledged that she was not charged AWOL. Rather, Complainant asserted that STSO2 told LTSM that Complainant had left the floor without permission even though a Lead Transportation Security Officer (LTSO) approved her to go to lunch. Complainant stated that, when she returned, LTSM accused her of leaving for lunch without permission. Complainant stated that LTSM also instructed her to leave whatever she and TSO5 had going on "at home." Complainant added that it was clear that she was being singled out and harassed for no reason other than retaliation for ending her relationship with STSO2 and for her perceived relationship with TSO5. Complainant stated that she felt as if LTSM and STSO2 were working together to build a case to terminate her. Complainant stated that there were no witnesses to the incident and that she did not report the incident to management but filed the instant complaint instead. LTSM stated that she had no knowledge of the alleged incident, asserting that she would not question a TSO’s 30-minute lunch break or 15-minute break. LTSM explained that an LTSO is authorized to issue such breaks to TSOs, stating that she was unaware of the 30-minute lunch break at issue or any AWOL related to a lunch break. 2019003874 5 She added, however, that it was possible that STSO2 was aware through verification with an LTSO. LTSM explained that she did not observe or have any knowledge of any discrimination or harassment involving Complainant. In rebuttal, Complainant stated that she informed everyone involved that LTSO gave her permission for a 30-minute lunch break as confirmed in an email from LTSO. Complainant reiterated that she was not surprised that STSO2 failed to provide a response. Claim 6: On or about April 2, 2017, management stated, "You are always trouble," and "Yes, she is a troubled child." Complainant alleged that, as she was leaving the room following the discussion with LTSM regarding her lunch break, she overheard LTSM and STSO2 comment that Complainant "was always trouble" and accused Complainant of being a "troubled child." LTSM denied making the alleged comments, asserting that STSO2 did not make those comments either. In rebuttal, Complainant stated that LTSM bullied her on a regular basis, following the lead of STSO2 regarding the AWOL. Complainant added that LTSM did not believe that Complainant received permission to leave the screening floor for a lunch break. Complainant asserted that she heard LTSM and STSO2 state “troubled child,” reiterating that she was not surprised that STSO2 failed to provide a response. Claim 7: In or around April 2017, management changed Complainant's Transportation Officer Performance System (TOPS) rating from 4.6 to 3.0. Complainant alleged that a fifth Supervisory Transportation Security Officer (STSO5) and STSO3 verbally issued her a rating of 4.6. Complainant stated that STSO5 commented that LTSM had final authority on the appraisal and that LTSM issued Complainant a 3.0 score. Complainant affirmed that STSO5 attributed the lowered score to her "honesty and integrity." Complainant questioned why LTSM, rather than TSM2, reviewed her performance. Complainant asserted that she received the lowered rating in retaliation for ending her relationship with STSO2. LTSM stated that STSO5 and STSO3 provided input on Complainant's TOPS rating. LTSM asserted that she had no knowledge of the purported 4.6 rating or any changes following issuance of the rating and that Complainant did not approach her to provide any information about Complainant’s ratings. LTSM denied changing Complainant's rating, indicating that Complainant’s original score, and her final score that was submitted to LTSM, were the same. LTSM indicated that she was not aware of Complainant engaging in any prior EEO activity. 2019003874 6 STSO5 affirmed that STSO3 assisted with Complainant’s rating because STSO5 was a new supervisor at the time. STSO5 did not address whether LTSM asked her to change the score, noting only that she had been a supervisor for a short time; therefore, guidance from LTSM was necessary. STSO3 stated that LTSM instructed STSO5 to lower Complainant's TOPS scores, but STSO3 was unaware of the specific competencies STSO5 was directed to change. Record evidence includes a copy of the rating at issue, reflecting an overall score of "3.07, Achieved Expectations" and a competency rating of "Exceeded Expectations" for "Integrity and Honesty." The record is devoid of any documentation indicating a lowered score. In rebuttal, Complainant asserted that STSO3 specifically told her that STSO3 gave Complainant a higher rating than LTSM. Complainant also asserted that she had numerous conversations with STSO3 during work and outside of work. Complainant stated that LTSM’s testimony is inconsistent with STSO5’s, explaining that STSO5 stated that Complainant’s TOPS score was lowered at the direction of LTSM. Complainant contended that LTSM and TSM2 needed to find a reason to lower her TOPS score by using the AWOL due to the lack of negative work performance. Complainant added that, in a text following her termination, STSO5 informed her that the termination was “bullshit.” Complainant stated that she was targeted because she “blew the whistle” on sexual harassment, intimidation, bullying, and a hostile work environment. Claim 8: On an unspecified date in 2017, Complainant alleged that management stated, "She does not need new uniforms, she won't be here much longer" and "She does not need training, she won't be here much longer." Complainant alleged that STSO2 commented that Complainant would not need new uniforms because Complainant would not be at the Agency much longer. Complainant alleged that the comment was made in response to her statement that she needed to order new pants. Complainant added that in April 2017, when she told STSO2 that she was behind on training, STSO2 replied that Complainant did not need to train because Complainant would not be around much longer. Complainant affirmed that she did not report the incident to management. She reiterated that she felt retaliated against by STSO2 because she ended her relationship with him. STSO2 did not provide a response to any of Complainant’s allegations against him. (As noted above, the record indicated that he was no longer employed by the Agency.) Record evidence indicated that an administrative inquiry conducted into Complainant's allegations determined that there was no evidence to prove that STSO2 made the alleged comments or that the alleged interaction occurred. In rebuttal, Complainant reiterated that she was not surprised that STSO2 did not provide a response. Claim 9: On April 28, 2017, Complainant was terminated from employment at DAL. 2019003874 7 Complainant alleged that management terminated her for being tardy on three occasions and for being AWOL on December 16, 2016, but did not provide her with any specific details regarding the charges. Complainant asserted that her termination was retaliation for reporting sexual harassment by STSO2 and STSO4. Complainant alleged that male TSOs received more favorable treatment. Complainant also asserted that TSM1 only spoke to her on one occasion about her attendance. TSM2 stated that he initiated Complainant's termination due to her attendance issues. LTSM provided supporting testimony, affirming that AFSD-S1 and TSM2 served as the decision makers for Complainant's termination. LTSM however stated that she was tasked with the issuance of the termination letter because TSM2 was out on leave. LTSM did not address the reasons cited for Complainant's termination but maintained that Complainant's sex and reprisal were not factors in her termination. Included in the record is the termination notice served to Complainant which noted that Complainant had accrued 24 unscheduled absences in the three months preceding April 2017. In rebuttal, Complainant explained that LTSM was part of building the case against her for a termination, asserting that LTSM was working closely with STSO2. Complainant stated that neither LTSM nor TSM2 spoke to her about being tardy. Complainant again reiterated that she was not surprised that STSO2 did not provide a response. The record includes the following timeline of events: On September 12, 2016, TSM2 issued Complainant a Letter of Counseling (LOC) for excessive and/or unscheduled absences, to include six instances of Leave Without Pay (LWOP) and two sick days. On October 9, 2016, TSM2 issued Complainant a rating of "Achieved Expectations" on her performance appraisal for the rating period of October 1, 2015, through September 30, 2016. On November 26, 2016, a sixth Supervisory Transportation Security Officer (STSO6) issued a memorandum to Complainant, explaining that he reviewed her attendance record, identified potential sick leave abuse, and provided her an opportunity to advise management of any extenuating circumstances that should be considered. STSO6 noted that Complainant indicated her health had improved and that he expected Complainant’s attendance to also improve. On February 18, 2017, TSM2 emailed the Human Resources Specialist (HRS) and stated that Complainant had not received any discipline, but that she did not meet the E-band promotion requirements because she had one instance of AWOL and had used 130 hours of LWOP. On April 17, 2017, STSO5 issued Complainant a mid-year rating of "Achieved Expectations" on her performance appraisal for the fiscal year that began on October 1, 2016, and would have ended on September 30, 2017. On April 28, 2017, AFSD-S1 issued Complainant a notice terminating her employment during the trial (one-year probationary) period, consistent with TSA Management Directive (MD) 1100.31-1. 2019003874 8 AFSD-S1 noted that TSM2 had issued Complainant an LOC on September 12, 2016, for excessive unscheduled absences and that STSO6 held an Interest-Based Conversation (IBC) with Complainant about her attendance and need for improvement. The record indicated that Complainant received notice on both occasions that continued misconduct could result in disciplinary action, up to and including termination of her employment; however, she was tardy for three of her shifts over the three months prior to her termination; accrued eight hours of AWOL on December 16, 2016; and accrued 24 hours of unscheduled absences over the three months prior to the April 28, 2017, notice. Record evidence indicated that on August 1, 2017, after Complainant’s termination, the Assistant Federal Security Director-Law Enforcement (AFSD-LE1) submitted an Informal Administrative Inquiry, Report Number DAL IAI 01-2017, addressing Complainant's allegations of harassment and sexual harassment that allegedly occurred from September 2016 through April 2017. The record indicated that, on June 19, 2017, the Federal Security Director (FSD) had appointed AFSD-LE1 to investigate the allegations, which included inappropriate comments, harassment after a consensual sexual relationship ended, management's failure to address the harassment, and a lowered performance appraisal rating. The record reflected that AFSD-LE1 conducted interviews with ten subjects and partly substantiated two out of the 13 allegations made by Complainant. AFSD-LE1 stated that the evidence revealed that Complainant and STSO2 did enter into a consensual sexual relationship, which STSO2 failed to report, in violation of TSA MD 1100.73-5 J, Employee Responsibilities and Code of Conduct, but that it was a one-time encounter, and the investigation did not support that STSO2 continued to contact Complainant thereafter. The record indicated that AFSD-LE1 also substantiated that Complainant and TSO5 had become close friends and discussed moving in together. AFSD-LE1 asserted that he found no evidence to support any of Complainant’s harassment or sexual harassment claims. 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 Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Statement, among other things, Complainant reiterates her allegations, arguing that she was not provided with details concerning several instances of tardiness. Complainant also indicates that she had experienced illness of which she informed management. Complainant adds that she was informed that she was not eligible for leave under the Family and Medical Leave Act (FMLA) because she was a probationary employee and had yet to complete a full year of employment, but that she was not advised in writing that a medical certificate would be required for each subsequent absence for which sick leave was requested. 2019003874 9 Complainant asserts that some of her witnesses were not interviewed by the investigator and that neither she nor DAFSD-S1 were interviewed during the fact-finding inquiry later conducted by the Agency. Complainant also argues that the inquiry into her sexual harassment allegations was not conducted until after her termination and that STSO2 had lied at the inquiry about how their relationship ended. She requests ten remedies that include reinstatement and accompanying compensation, compensatory damages, and medical costs. In its Appeal Brief, the Agency reiterates its reasons for terminating Complainant’s employment during the probationary period. The Agency asserts that Complainant has failed to establish a prima facie case of discrimination or retaliation and that she failed to show that the Agency’s legitimate, nondiscriminatory reasons for its actions were merely a pretext for discrimination or retaliation. The Agency requests that the Commission affirm its FAD. 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”). ANALYSIS AND FINDINGS Procedurally Dismissed Claims The Agency dismissed Complainant’s disparate treatment allegations in Claims 5 and 7 to the extent that they allege an independently actionable discrete act, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO Counselor. It explained that, contrary to the requirements at 29 C.F.R. § 1614.105(a)(l) that a complainant initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, Complainant contacted an EEO Counselor on June 12, 2017, more than 45 days after the incidents giving rise to the disparate treatment allegations in those claims occurred. The Agency asserted that Complainant offered no justification to warrant extension, waiver, estoppel, or equitable tolling of the 45-day time limitation for initiating EEO contact as required in 29 C.F.R. § 1614.105(a)(2). The Agency however addressed the dismissed claims as part of Complainant’s harassment allegations. Complainant did not contest the dismissal of her disparate treatment allegations in Claims 5 and 7. Therefore, those two claims will also be analyzed as part of her harassment allegations in this decision. 2019003874 10 Disparate Treatment - Termination (Claim 9) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant’s employment during her probationary period. The termination notice served to Complainant, affirmed by the April 28, 2017, notice from AFSD-S1, reflects that Complainant’s termination was due to poor attendance. Complainant asserted that LTSM and STSO2 had set her up for termination in retaliation for ending her relationship with STSO2 and for reporting sexual harassment. She also asserted that no one previously discussed attendance issues with her. However, nothing in the record indicates that AFSD-S1, the deciding official, had any knowledge of Complainant’s reported allegations at the time he made the decision to terminate Complainant during her probationary period. Rather, the record indicates that, based on information provided to HRS by Complainant’s supervisors, Complainant lacked the requisite qualifications for continued employment past her probationary period. Moreover, record evidence demonstrates that Complainant was counseled and warned, prior to her complaining of alleged sexual harassment, that her continued attendance abuses could result in disciplinary action, up to and including removal. Yet, Complainant did not improve her attendance. In an effort to show pretext, Complainant alleged that unidentified male TSOs received more favorable treatment. To demonstrate that another employee is a similarly situated comparator, a complainant must show that all relevant aspects of the comparator's work situation were nearly identical to her own. Martinez v. Dep't of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1, 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). Also, to be similarly situated, comparative employees must have reported to the same supervisor, been subjected to the same standards governing discipline, and engaged in conduct similar to the complainant's without differentiating or mitigating circumstances. Jones v. Dep't of the Interior, EEOC Request No. 05950175 (Jun. 7, 1996) (finding comparators must have similar performance deficiencies to be similarly situated employees); see also Hester v. U.S. Postal Serv., EEOC Appeal No. 2019003874 11 0120111875 (Feb. 13, 2013) (finding an employee was not comparable to complainant when the employee worked part-time and complainant worked full-time); Brazell v. Dep't of the Air Force, EEOC Appeal No. 01851885 (Mar. 13, 1987) (employees were not similarly situated to complainant because their respective training programs occurred several years apart and they were trained by different trainers). Here, given Complainant’s failure to identify the comparative employees she alludes to, we cannot find that they were similarly situated. Complainant also asserted that TSM2 only spoke to her on one occasion about her attendance. However, Complainant failed to cite any policy or applicable agency requirement that she be informed multiple times about poor attendance. Importantly, the Commission has long held that, where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). In the instant complaint, Complainant is a probationary employee who, the record indicates, was at least issued an LOC and warning about her attendance issues, which she failed to improve. We find no persuasive evidence that discriminatory or retaliatory animus played any role in Complainant’s termination. Complainant also failed to cite any Agency policy requiring that she be advised in writing that a medical certificate would be required for each subsequent absence for which sick leave was requested, nor comparative employees who were given such notice. Sexual Harassment - Claims 1 through 4 Complainant may establish a violation of Title VII by demonstrating that she was subjected to sexual harassment that was severe or pervasive enough to create a hostile work environment. Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57, 62-67 (1986). To establish the existence of sexual harassment based on a hostile work environment, Complainant would have to show: that she belongs to a protected group; that she was subjected to unwelcome conduct of a sexual nature based on her sex; that the harassment created an intimidating, hostile, or offensive work environment; and that the agency knew or should have known of the harassment, but took no prompt remedial action. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, Complainant has alleged that a coworker and two supervisors made remarks and gestures of a sexual nature toward her and that management failed to take any action after the first alleged incident. Therefore, Complainant asserted, she did not report subsequent incidents of harassment. The Commission has held that, in general, unless the conduct complained of is very severe, a single incident will not be regarded as discriminatory treatment. Taylor v. Dep’t of the Army, EEOC Appeal No. 01942699 (Mar. 7, 1996); Policy Guidance On Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 16 (Mar. 19, 1990) (citing Barrett v. Omaha Nat’l Bank, 584 F. Supp. 22, 35 (D. Neb. 1983), aff’d 726 F.2d 424 (8th Cir. 1984)). Violations have been found in cases involving single incidents where the harasser forcibly grabbed and kissed the complainant while they were alone in a storeroom, and where the harasser slid his hand under the complainant’s skirt and squeezed her buttocks. Id. at n. 24 (citing Commission 2019003874 12 Decision No. 83-1, CCH EEOC Decision ¶6834 (1983); Commission Decision No. 84-3, CCH Employment Practices Guide ¶6841 (1984)). We find that, if true, TSO1 asking Complainant if she would like to see the birthmark on his penis, STSO2 inviting her to his home and for out of town travel after a consensual relationship STSO2 had with Complainant ended, STSO4 telling Complainant that he did not have candy but he had something she could put in her mouth, and STSO4 stating that Complainant could sit in his lap while he had his legs spread wide open, like the incidents cited as examples in the Commission’s policy guidance, could be sufficiently severe to give rise to a hostile work environment, if taken together. However, Complainant only reported the first incident of sexual harassment, which involved comments allegedly made by TSO1. In response to that reporting, the Agency conducted an administrative investigation and found no evidence to substantiate Complainant’s allegations. Complainant’s appeal statement that neither she nor DAFSD-S1 were interviewed during the fact-finding inquiry later conducted by the Agency appears to support Complainant’s rebuttal statements regarding the veracity of her allegations that management failed to act when she reported TSO1’s alleged sexual comments. It is also not unexpected that TSO1 would deny Complainant’s allegations. Yet, we find credible first-hand witness testimony from TSO4, who was present when the first alleged incident occurred and whose assertion that TSO1 made comments about his seniority but the comments were not of a sexual nature were affirmed by STSO1. TSM1 and the other witnesses only learned of the alleged incident when Complainant informed them about it. Even STSO1’s action in stopping Complainant and indicating that she needed to talk to TSM1 was based on Complainant’s own statements to STSO1 that Complainant was harassed; STSO1 did not hear TSO1 make the alleged comments. We find, therefore, that the preponderance of the evidence before us does not establish that TSO1 in fact made the alleged comments. With respect to the remaining alleged incidents of sexual harassment, how Complainant’s relationship with STSO2 ended is immaterial. What matters is that both STSO2 and STSO4, the alleged perpetrators, are supervisors who should be held to a higher standard of behavior; and it is Complainant’s words against their denials that sexual harassment did not occur. However, while it is understandable that there are often no witnesses to sexual harassment, Complainant failed to report those incidents. The Commission has held that, where the agency knows or has reason to know about the occurrence of acts of sexual harassment on the part of its employees but fails to take immediate and effective action reasonably calculated to end the harassment, including making the victim whole, it will be held liable for a violation of Title VII. Taylor, EEOC Appeal No. 01942699; Hirschfield v. New Mexico Corr. Dep’t, 916 F.2d 572, 577 (9th Cir. 1990); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989); Policy Guidance, EEOC Notice No. N-915-050 at 29-30. In the instant complaint, neither Complainant nor STSO2 reported their consensual relationship to management, not even after the relationship ended. Complainant’s assertions that she did not report the incidents involving STSO2 and STSO4 because management did not believe her and that they had failed to act when she reported the incident alleged in Claim 1 are understandable. 2019003874 13 However, having changed her duty shift, Complainant had a new set of supervisors who might have been more proactive in addressing her allegations. Even if the alleged incidents involving STSO2 and STSO4 occurred, Complainant’s failure to report them deprived management of the opportunity to act. There is also no evidence that LTSM made any sexual remarks to Complainant. Complainant’s own conclusory statements that LTSM took any actions or made remarks based on what Complainant assumed, without evidence, was LTSM’s knowledge of Complainant’s relationship with STSO2 and assumptions about Complainant’s perceived relationship with TSO5 do not establish retaliation. Neither is there evidence that LTSM was in any way involved or that she had knowledge of the sexual harassment alleged by Complainant in Claim 1. Complainant also did not describe any sexual or other harassment incidents involving the management officials who allegedly failed to act when Complainant reported the first alleged incident. Therefore, the basis for her fear that nothing would have been done even had she reported subsequent sexual harassment is not supported by the evidence. Having considered the evidence of record, we find that there is no basis for imputing liability to the Agency. Other Harassment - Claims 5 through 8 To establish a claim of harassment, a complainant must show: (1) he/she belongs to a statutorily protected class; (2) he/she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) 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) there is a basis for imputing liability to the employer. McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999). We assume, for purposes of analysis only, that Complainant’s remaining harassment allegations (involving comments allegedly made by LTSM and STSO2, and the lowering of Complainant’s TOPS rating followed by her termination), if true, would sufficiently meet the requisite level of severity or pervasiveness to constitute actionable hostile work environment. We find, however, that Complainant has not established that these actions were connected to her ended relationship with STSO2 or otherwise based on sex or reprisal. First, other than LTSM's allegedly questioning Complainant’s lunch break, and making remarks indicating that Complainant was trouble and a troubled child, Complainant did not describe any bullying, intimidating, or abusive conduct involving LTSM. Complainant acknowledged that she was not charged AWOL in connection with the lunch break questioning. Arguably, LTSM’s alleged statements in Claim 5 that Complainant leave whatever is between herself and TSO5 at home can be attributed to what Complainant herself described as a perceived relationship with TSO5. It does not however establish a connection to Complainant’s sexual harassment allegations or her ended relationship with STSO2. 2019003874 14 Second, with respect to Complainant’s TOPS rating, the record does not include any text messages from STSO5 to Complainant that would have corroborated the allegations that LTSM acted inappropriately in changing the 4.6 rating, which STSO3 allegedly verbally issued to Complainant, to a 3.0 rating. There are only two text message exchanges included in the record. One set of exchanges is between Complainant and STSO2 regarding the comments allegedly made by STSO2 in Claim 8. The other exchanges are between Complainant and STSO3, and they discuss nothing about the lowering of Complainant’s TOPS ratings. Rather, Complainant’s text message exchanges with STSO3 only indicate that Complainant knew she was terminated because of attendance issues and that she thought it was unfair how everything “went down.” Nowhere in the text messages does Complainant mention harassment. Therefore, the weight of the evidence does not support Complainant’s allegations indicating that her immediate supervisors affirmed that her TOPS rating was changed. Neither does it show a connection to Complainant’s alleged incidents of sexual or other harassment. Finally, while STSO2’s alleged statements in Claim 8 appear to indicate that STSO2 was aware of Complainant’s subsequent termination, there is no evidence that the comments were in any way linked to STSO2’s previous relationship with Complainant. In harassment cases, the Commission has posited that, if the alleged harasser is a supervisor and a tangible employment action is involved, the agency will be strictly liable. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (Jun. 18, 1999) at p. 7; see also Burlington Industries. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Here, Complainant has alleged the type of inappropriate workplace occurrences in Claims 1 through 8 that could generally trigger protection and redress under EEO laws. However, we are unable to impute liability to the Agency because Complainant herself stated that she failed to report the alleged statements and other incidents of harassment to management. Her allegations indicating that a culture of sexual and other harassment may have played a role in her termination is weakened by that failure. Moreover, as noted above, we find no persuasive evidence that discriminatory or retaliatory animus played a role in her termination. Notably, STSO2 did not provide any statements. Therefore, credibility issues remain in the instant complaint. However, because Complainant did not request a hearing or avail herself of the discovery process which would have allowed for an examination of the credibility or lack thereof of management’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us. We therefore find that Complainant has failed to meet her burden to prove, by a preponderance of the evidence, that the alleged discriminatory, retaliatory, and harassing acts occurred. Accordingly, Complainant’s requested remedies are denied. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2019003874 15 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). 2019003874 16 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 May 25, 2021 Date