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

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020002947 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharon W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2020002947 Agency No. P6-19-0031 DECISION On February 29, 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 January 30, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 a Quality Assurance Specialist, GS-1910-12, for the Agency’s Naval Special Emphasis Program in Milwaukee, Wisconsin. On April 18, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to both a hostile work environment based on her sex (female), disability (Generalized Anxiety Disorder), and in reprisal for prior protected EEO activity when: (1) on April 30, 2019, her second-line supervisor (S2) informed her that she was not interviewed in a command directed investigation regarding her allegation of sexual harassment because she filed an EEO complaint; (2) on March 11, 2019, her first-line supervisor (S1) did not offer her an alternate date to take the Nondestructive Test Visual Inspection training 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. 2020002947 2 course; (3) between October 2014, and March 8, 2019, S1 subjected her to non-sexual harassment (hostile work environment) and treated her differently than others in the following circumstances: (a) on March 8, 2019, S1 denied her request for fitness time, (b) on March 1, 2019, S1 directed her to provide specific times on her Defense Agencies Initiative time card for her union duties, (c) on December 20, 2018, S1 chastised her for not using her chain of command regarding hiring practices, (d) on November 2, 2017, S1 threatened to revoke her ad hoc telework when she did not answer the telephone at the conclusion of the Director's All Hands meeting, (e) on July 25, 2017, S1 required her to specify the type of leave she would be using on the team calendar if she was going to be out of the office for more than two hours, (f) in October 2014, S1 cancelled a scheduled mediation that involved Complainant and a coworker (C1) (female) who was subjecting her to a hostile work environment, and (g) on May 13, 2019, S2 compared her complaint to another employee's complaint and told her that the General Counsel informed him that she did not have a strong case if her incidents were the same as the other employee's incidents; (4) between April 15, 2014, and January 4, 2019, S1 subjected her to sexual harassment under the following conditions: (a) from May 2014 to present she caught S1 staring at her breasts and buttocks on multiple occasions, (b) on January 4, 2019, S1 informed her that one of his friends has “bent dick disease” and proceeded to describe the symptoms in detail and offered to share photos with Complainant, (c) during October 2016, S1 shared sexual jokes with her that were on his cellular telephone, referred to women as “cunty,” commented to her that African-Americans have to be treated special, informed her about his step-daughter's genitalia piercing, stated that Complainant liked it both ways and stared at her body inappropriately, and (d) on April 15, 2014, S1 displayed a sexual joke on his cellular telephone describing two fingers in the strawberry (vagina) and one finger in the chocolate ice cream (anus); and (5) on May 4, 2016, S1 removed her from the Johnson Brass and Machine contract.2 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 EEOC Administrative Judge. 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 or reprisal as alleged. 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 2 The Agency dismissed Claim (5) for untimely EEO counselor contact in accordance with 29 C.F.R. § 1614.107 (a)(2). Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal. The claim will, however, be considered as background evidence in support of Complainant’s overall hostile work environment claim. 2020002947 3 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”). Hostile Work Environment -- Nonsexual Harassment To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, management officials subjected her to a hostile work environment. However, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency’s actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Because 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. Complainant presented no evidence, other than subjective beliefs and assertions, that the actions complained of were taken because of her protected classes. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. 2020002947 4 Hostile Work Environment - Sexual Harassment To establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to his sex, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer, in other words, did the agency know or have reason to know of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Here, the record evidence supports only that Complainant was subjected to two incidents of a sexual nature involving S1 occurring five years apart. Complainant presented no corroborating evidence demonstrating that any additional conduct occurred. A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Thus, the record supports that the isolated nature of the conduct at issue was insufficiently severe or pervasive to establish sexual harassment. However, even assuming the alleged conduct was sufficiently severe or pervasive to establish an intimidating, hostile, or offensive work environment, Complainant would still be required to establish a basis for imputing liability to Agency. In the absence of a tangible employment action by a supervisor, such as a termination, disciplinary action, etc., an employer is vicariously liable for harassment if management knew or should have known of the alleged harassment and failed to take immediate and appropriate corrective action. See Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 29-30 (Mar. 19, 1990); Rathers v. Dep't of the Treasury, EEOC Appeal No. 0120080750 (Aug. 12, 2009), req. for reconsid. den'd EEOC Request No. 0520090677 (Mar. 11, 2010); Owens v. Dep't of Transp., EEOC Request No. 05940824 (Sept. 5, 1996). Here, the record is insufficient to show that Complainant reported any sexual conduct by S1 prior to February 2019. S2 noted that S1 was a supervisor of a virtual team and was stationed in Illinois while Complainant worked at the Milwaukee office; therefore, S2 affirmed they had little to no physical contact. After receiving the report of offensive conduct, S2 instructed S1 to only use email if he needed to contact Complainant and to telework from home until the allegations could be reviewed. A command directed investigation was conducted regarding S1’s conduct involving several harassment allegations raised by Complainant and her husband and S1 was subsequently disciplined. There is no evidence that any similar conduct recurred. As a result, the Commission finds that there is no basis for imputing liability to the Agency. 2020002947 5 After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination or harassment as alleged by Complainant. 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. 2020002947 6 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 July 12, 2021 Date