U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nubia H.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180474
Hearing No. 451-2014-00177X
Agency No. ARFTSAM13JUN01879
DECISION
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 October 13, 2017, final
order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply Technician,
GS-2005-06, at the Agency’s Brooke Army Medical Center facility in Fort Sam Houston, Texas.
On August 13, 2013, Complainant filed an EEO complaint alleging that the Agency subjected her
to sexual harassment and a hostile work environment on the bases of sex (female) and age (55)
when:
1. On or about May 23, 2013, she overheard a coworker say that her “vagina felt like it was
full of sand” and another coworker replied to her that he would “suck it out;” and
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.
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2. On June 3, 2013, she was told to “get the fuck out” by a coworker.
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). Complainant requested a hearing. The AJ
assigned to the case found that, after viewing the evidence in a light most favorable to
Complainant, a decision without a hearing was appropriate as there were no genuine issues of
material fact in dispute. The AJ issued a decision without a hearing on September 13, 2017, finding
no discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal,
Complainant contends that the AJ erred in issuing a decision without a hearing and reiterates her
contention that she was subjected to unlawful harassment
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, it is not
appropriate for an AJ to issue a decision without a hearing. In the context of an administrative
proceeding, an AJ may properly issue a decision without a hearing only upon a determination that
the record has been adequately developed for summary disposition. Petty v. Defense Security
Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC
Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing was
appropriate, as no genuine dispute of material fact exists. To establish a case of sexual harassment
creating a hostile work environment, Complainant must show, by a preponderance of the evidence,
that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances,
requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex; (4) the harassment affected a term or condition of employment,
either unreasonably interfering with the work environment or creating an intimidating, hostile, or
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offensive work environment; and (5) there is a basis for imputing liability to the employer.
Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11.
The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v.
City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Here, we concur with the AJ’s finding that Complainant failed to show that she was subjected to
sexual harassment. The record shows that the comments identified in claim (1) were not directed
toward Complainant, but that she overheard a private conversation between coworkers. As to claim
(2), we find that Complainant failed to show that this incident was related to her sex or age. We
further find that, taken together, the incidents alleged are not sufficiently severe or pervasive as to
constitute a hostile work environment under Commission regulations. Although it is clear that
Complainant was offended by her coworkers’ language, we note that 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). After
careful review of the record, including Complainant's contentions on appeal, we find that
Complainant failed to demonstrate that the Agency discriminated against her as alleged.
CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are no
genuine issues of material fact. We further find that the AJ appropriately issued a decision without
a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision
and the Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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).
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All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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
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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 19, 2019
Date
