0120142814
11-16-2016
Regina M.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Regina M.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120142814
Agency No. TVA20130082
DECISION
On July 30, 2014, Complainant filed an appeal from the Agency's July 1, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not demonstrate that she was subjected to sexual harassment for which the Agency was liable or that she was laid-off because of her prior EEO activity.
ISSUES PRESENTED
The issues presented are whether Complainant established that she was subjected to harassment based on sex and whether in retaliation for her previous EEO activity Complainant was laid-off.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Staff Augmentation Contract Laborer (Laborer), with GUMBK Contractors (GUMBK), an Agency contractor, at the Agency's Cumberland Fossil Plant in Cumberland City, Tennessee. On October 7, 2013, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female) and reprisal for prior protected EEO activity when:
1. Around July 2012, Complainant's foreman, A1, sent her a text message requesting to see a picture of her in a bikini while she was on vacation;
2. Around February 8, 2013, A1 requested that Complainant give her chair to another co-worker so that he could get a better view of her breasts;
3. Around March 23, 2013, A1 described in graphic detail a sexual encounter he had with another female;
4. Around March 26, 2013, A1 made a statement implying that if Complainant granted sexual favors to another employee, then she would get what she wanted for free;
5. Around April 22, 2013, A1 made inappropriate comments about Complainant's clothing;
6. Around June 28, 2013, A1 requested to enter the ladies restroom with Complainant and another female co-worker (Coworker-1); and
7. Around July 11, 2013, A1 made statements to Complainant pertaining to her undergarments and other clothing.
Complainant also alleged that she was subjected to reprisal when she was laid off from her job assignment on or about September 2013.
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 Final Agency Decision (FAD) or a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant did not make an election so 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 a hostile work environment or reprisal as alleged.
Specifically, the Agency found that Complainant failed to establish a claim of a hostile work environment/harassment based on sex because she could not demonstrate that the alleged harassment was sufficiently severe or constituted a pervasive pattern. First, the Agency asserted that Complainant failed to present sufficient evidence to establish that all of the comments and incidents she alleged actually occurred. Specifically, the only allegations substantiated by the record were Complainant's allegations that A1 made inappropriate comments about her clothing.
The Agency indicated that "[F]ederal law does not prohibit offhand comments or isolated incidents of harshness that are not 'extremely serious.'" Furthermore, the Agency argued that Title VII is not a "general civility code" and forbids "only behavior so objectively offensive as to alter the condition of [Complainant's] employment." Secondly, the Agency maintained that Complainant frequently initiated sexual banter with the work crew. For example, Complainant often brought to work birthday cakes with sexually suggestive pictures and made jokes about which part of the cake should be given to male coworkers. Additionally, Complainant spoke and joked about going to a motel with her boyfriend and talked about a "slinky nightgown."
Coworker-1 also maintained that she heard Complainant talk about another female coworker, Coworker-2, performing sexual favors on A1 to secure a job for Coworker-2's boyfriend. The Agency argued that where a Complainant actively participates in the activities about which she later complained, a hostile work environment will not be found. Therefore, the Agency found that there was no evidence to indicate that the banter or conduct that did occur was unwelcome or sufficiently severe or pervasive to alter the terms or conditions of Complainant's employment. Given these facts and the totality of the circumstances, Complainant failed to establish her claim of a hostile work environment based on sex.
Moreover, the Agency maintained that as soon as Complainant alleged that she was subjected to sexual harassment, the Agency took prompt effective action which included, initiating an investigation, removing A1 from his position, issuing the foreman a written warning and directing him to complete various training courses as well as to requiring him to read the Harassment section of the Agency's Code of Conduct. Additionally, Complainant's entire work crew was required to attend Respectful Workplace training, which they completed on September 11, 2013.
With regard to being laid-off, Complainant asserted that the layoff was retaliatory because management never mentioned that it wanted to go with a less expensive contractor until September 11, 2013, the day Complainant learned she would be laid off. The Agency explained that a cost savings analysis and considerations for replacing GUMBK with G & A began in April 2013, and continued through July 2013, and was implemented to coincide with next fiscal year. The Agency found that Complainant established a prima facie case of reprisal as management was aware of her harassment complaint. The Agency also acknowledged that Complainant showed a nexus between her protected activity and her layoff as she was laid off less than two months after complaining of harassment. Notwithstanding the Agency asserted that it met its burden of articulating a legitimate, nondiscriminatory reason for its action, namely, that management decided to change to another contracting company approximately fifteen days before Complainant's allegations were brought to management's attention. Furthermore, the Agency noted that management had initiated cost-savings efforts with GUMBK in April 2013. After obtaining an estimate from GUMBK, management received an estimate from G&A, which would have resulted in an annual cost-savings of more than $315,000. The Agency indicated that although the timing of management's announcement to the crew about the layoff was unfortunate, the record revealed that the efforts to ensure cost-savings coincided with the end of TVA's fiscal year. The Agency found that Complainant did not show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she was discriminated against based on sex and race.2 She maintains that A1 was well known by the Agency. Complainant requests that she be given a hearing to discuss the fear to which A1 subjected her. She asserts that there were threats on her job and home life.
Further, Complainant contends that contrary to the Agency's assertions, she was not responsible for the cakes. According to Complainant, she did bring in some of the cakes but they were not ordered by her. Complainant maintains many employees were afraid of A1 and that he made sexual remarks about her and spoke about his sexual activity. She contends that her job and the jobs of seven others ended, just as the foreman said it would if her sexual harassment claims went public.
In response, the Agency, for the reasons set forth above, contends that the FAD should be affirmed.
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
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) that 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively 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: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, 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. By way of contrast, in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the evidence does not demonstrate that Complainant was subjected to a hostile work environment or reprisal. Specifically, we find that with respect to her claim of harassment based on sex, she has not established that a majority of the incidents at issue actually occurred. Without the benefit of an Administrative Judge's credibility determinations, we can only evaluate the record evidence as it exists. Assuming that these incidents all occurred as alleged, we do not find that these seven comments, occurring over the course of about a year, were severe or pervasive enough, as a matter of law, to establish a claim of hostile work environment harassment. EEO laws are not a civility code. Rather, they forbid "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Finally, we find that there is no basis for imputing liability to the employer because as soon as Complainant complained about A1's behavior, the record indicates that the Agency took immediate and appropriate corrective action which included removing A1, investigating her allegations, and ordering training for the workplace. Accordingly, we find no reason to hold the Agency liable for A1's behavior.
With respect to Complainant's allegation that she was subjected to reprisal when she was laid off after she reported A1's harassment, we will assume that Complainant established a prima facie case of reprisal. We find however that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the Agency's action of replacing the contracting service was not directed at Complainant as the Agency had begun this action prior to Complainant's allegation of harassment/hostile work environment. As such, we find that Complainant did not demonstrate that this action was taking in retaliation against her.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not establish that she was subjected to a hostile work environment, or subjected to discrimination or reprisal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__11/16/16________________
Date
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 Race discrimination was not a claim raised in the instant complaint.
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