Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120130331 Hearing No. 410-2012-00002X Agency No. DECA000012011 DECISION On October 25, 2012, Complainant filed an appeal from the Agency's October 10, 2012, 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 REVERSES the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Store Associate, GS-3, at the Commissary at Robin's Air Force Base. On or around August 25, 2010, Complainant told her non-supervisory coworker and union steward (CW1) that a male supply technician (CW2) had been sexually harassing her for the past year. Complainant alleged that CW2 consistently made inappropriate comments to her about sex, would ask her for sexual favors in the form of oral sex, and would ask her to let him come to her house in order to have sex with her. Report of Investigation (ROI) at 50, 73. Additionally, CW2 allegedly touched her buttocks 2 or 3 times a day. ROI at 50. Complainant stated that this conduct was offensive to her and she told him "no" and to "stop" after every comment and every time he touched her. ROI at 50, 66. Some of the specific examples of sexual harassment in the record include an incident when Complainant asked if she could have an old Commissary desk, and CW2 replied that if she let him come to her house he would buy her a house of furniture. ROI at 73. On another occasion, CW2 also told her that he would buy her a new set of tires if she let him come to her house. Id. Complainant stated that CW2 made it clear on each occasion that he was asking to come to her house because he wanted to have sex with her there. Id. Additionally, Complainant stated that CW2 would constantly touch her including on her buttocks when no one was looking, and when she told him to stop, reminded him that he was married, and warned him that he would get in trouble, he just laughed at her. Id. Complainant also stated that once she was bent over a cooler in the floor cleaning it with a hose and CW2 came up behind her and touched her all over her buttocks. Id. When she told CW2 to stop, he just laughed and walked away. Id. CW1 told Complainant to report the harassment to the Store Administrator (S1), but Complainant stated that she was afraid to report the harassment to S1 because he was always warning her that she was a probationary employee and could be fired. ROI at 68, 73. Complainant alleged that CW1 told her that she believed her because CW2 also touched her buttocks and the buttocks of another female employee (CW3).1 ROI at 74. On or around August 30, 2010, S1 was put on notice about the allegations of sexual harassment when CW1 told S1 that Complainant said she was sexually harassment by CW2. ROI at 70. CW1 shared all the details Complainant told her with S1. Id. In September, 2010, another female coworker (CW4)2 reported to management that CW2 had been sexually harassing her. ROI at 52, 82. CW4 alleged that on numerous occasions CW2 made comments about "biting [her] ass" when she was on a step ladder stocking the shelves. ROI at 52. CW4 stated that after all of his sexual comments and requests for sexual favors she repeatedly told him to stop and that she found it very offensive, and even warned him that she would punch him if he touched her. Id. On August 25, 2010, he parked his car so his front bumper was touching the back of her car, and when she told him not to park so close, he said that he was doing with his car what he would like to do to her, and he made many sexual innuendos and asked her what sexual positions she liked. Id. CW2 continued to ask her the next day about her preference in sexual positions. Id. When CW4 told him to stop because it was inappropriate, CW2 allegedly just laughed. A supervisor (S2) witnessed the incident with the cars but was not close enough to hear what was said. ROI at 55. Complainant stated that on September 10 or 11, 2010,3 S1 told her that he knew that she believed CW2 was sexually harassing her. ROI at 50. Complainant confirmed that CW2 was sexually harassing her and asked S1 to talk to CW2 and to tell him to stop, and requested that they be separated. Complainant was allegedly told that they could not be separated because CW2 was a federal employee and it was his workplace too, and they could not prevent him from coming through her cashier lane. ROI at 67. Complainant stated that on September 17, 2010, CW2 heard Complainant say that she was hungry and he made a reference again to oral sex when he told her, "I want to eat something too, but you won't let me." ROI at 50, 97. Additionally, Complainant stated that on September 18, 2010, while she was in the warehouse CW2 made a comment about her backing her buttocks up to him. ROI at 97. CW4 stated that CW2 also harassed her on September 17, 2010, when he walked by her while she was standing on a step ladder and he told her to turn around to face him. ROI at 52. CW4 assumed he wanted her to see his expression as he was looking up at her buttocks while she was standing on the step ladder. Id. She refused and he repeated his instruction for her to turn around over and over. CW4 told him that she would hit him if he tried to touch her, and he laughed and said "You might as well hit me now," and finally walked away. Id. On September 20, 2010, S1 spoke to CW2 for the first time about the allegations against him. CW24 provided a statement on September 27, 2010, in which he denied any inappropriate conduct and alleged that Complainant made sexual comments and would sway her hips at him. ROI at 47. He also denied telling CW4 that he would bite her on her ass. Id. In response, Complainant denied ever speaking inappropriately to CW2 or touching him. ROI at 73. On December 13, 2010, S1 issued to CW2 a Notice of Proposed Suspension for conduct unbecoming a Federal employee. ROI at 83. On January 25, 2011, a Decision on Proposed Suspension was issued in which CW2 was suspended for three days for his sexual harassment. ROI at 62. On November 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when a male coworker subjected her to sexual harassment between June 2009 and September 2010. 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 (AJ). Complainant requested a hearing, but on August 10, 2012, the AJ dismissed the hearing request on the grounds that Complainant failed to submit a Prehearing Report in accordance with the AJ's orders. The AJ remanded the complaint to the Agency, and 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 as alleged. Specifically, the Agency found that Complainant failed to establish a prima facie case of sexual harassment and that management took prompt and effective action to address the allegations of sexual harassment. CONTENTIONS ON APPEAL Neither party offered any new contentions on appeal. 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. (November 9, 1999) (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"). Sexual Harassment To establish a claim of hostile work environment, Complainant must show that: (1) she is a member of 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 the 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); EEOC's Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Elements 1, 2, and 3 -- Unwelcome Conduct based on Sex Regarding element 1, the record is undisputed that Complainant, a female, is a member of a statutorily protected class. Regarding elements 2 and 3, the record supports the determination that Complainant was subjected to unwelcome verbal and physical conduct based on her sex. Even though this complaint did not go to a hearing, we find that the record contains sufficient evidence to establish by a preponderance of the evidence that Complainant was subjected to sexual harassment by CW2. Specifically, Complainant's allegations are very similar to the allegations of another coworker, CW4. The record reflects that both Complainant and CW4 were subjected to similar sexual comments, requests for sexual favors, and sexual touching of the buttocks or threats of sexual touching of the buttocks. There is no evidence in the record that would indicate that the two women knew that they were both being subjected to sexual harassment, or that they conspired in their allegations or in the writing of their statements in any way. The Agency asserted in its final decision that Complainant also engaged in the sexually offensive conduct and it therefore was welcome. However a preponderance of the evidence does not support this conclusion. Complainant denied ever engaging in inappropriate behavior with CW2 and stated that she told him repeatedly to stop. We note that after S1 concluded his investigation, he only proposed a suspension for CW2 and not Complainant. If S1 had evidence after his investigation that Complainant also engaged in inappropriate conduct, he would have likely also proposed disciplinary action for her. Additionally, if S1 had any evidence that Complainant also engaged in the sexually offensive conduct, the Agency did not include that evidence in the report of investigation for this complaint. The only indication in the record of an allegation of Complainant's engagement in sexual comments is from CW2's September 27, 2010 statement, where he stated that he did not engage in any sexually harassing comments or conduct toward either woman. The Agency did not find CW2's statement credible during its internal investigation when it ultimately found that CW2 engaged in conduct unbecoming a Federal employee and disciplined him. However, now the Agency unconvincingly attempts to credit the one portion of that same statement where CW2 said that Complainant was the one who made sexually suggestive comments. Further, it is compelling that both Complainant and CW4 reported that when they told CW2 to stop his sexual harassment his response to both women was to laugh at them and walk away. This similarity in both of their experiences shows that both women more likely than not told him to stop his behavior and he reacted the same towards both of them. After a review of the entire record we find that a preponderance of the evidence in the record indicates that the conduct was unwelcome. Element 4 -- Unwelcome Conduct Sufficiently Severe or Pervasive In determining whether an objectively hostile work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Harris v. Forklift Sys. Inc., 510 U.S. at 21. Also, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. at 23. A review of the record reveals that CW2's actions were sufficiently severe or pervasive to create an abusive working environment. CW2's touching of Complainant's buttocks is itself sufficiently severe to constitute a hostile work environment. The Commission has stated that it "will presume the unwelcome, intentional touching of [Complainant's] intimate body areas is sufficiently offensive to alter the condition of her working environment and constitute a violation of Title VII." See Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (March 19, 1990); see also Haves v. U.S. Postal Serv., EEOC Appeal No. 01954703 (January 23, 1998) (finding that Complainant was subjected to unlawful sexual harassment based on one incident of physical touching of a sexual nature). The evidence establishes by a preponderance of the evidence that CW2 engaged in a pattern of offensive conduct towards Complainant, which included frequent touching and constant sexual comments and requests for sexual favors. The evidence in the record also establishes by a preponderance of the evidence that this harassment was not isolated to Complainant and included other women in the facility as well. Therefore, we find that the conduct was both severe and pervasive, and was sufficiently offensive to alter the conditions of Complainant's working environment. Element 5 - Liability and Affirmative Defense Next, we address whether the record supports the Agency's finding that it took prompt and effective action to address the sexual harassment. As to element (5), 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. 29 C.F.R. §1604.11(d); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dept. Of Air Force, EEOC Request No. 05920194 (July 8, 1992). However, when an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. Policy Guidance on Current Issues of Sexual Harassment, N-915-050 (March 19, 1990). The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Id. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. Id. Here, the record establishes that the Agency was put on notice of CW2's sexual harassment on August 30, 2010, when CW1 told S1 that Complainant told her she was being sexually harassed by CW2. There is no indication that the Agency was aware of the harassment before this date. However, the record does establish that once the Agency learned of the harassment, it failed to take prompt and effective action to address the harassment. The record gives conflicting dates for when S1 finally began to address the sexual harassment; Complainant stated that S1 talked to her on September 10 or 11, 2010, while in contrast S1 stated that he spoke to Complainant on September 15, 2010. We will give S1 the benefit of the doubt and assume that he spoke to Complainant on September 10, 2010, which is 11 days after he learned about the harassment. The Agency has offered no justification for why it took S1 11 days to speak to Complainant, or why during those 11 days he never spoke to CW2 or took any other steps to address the allegations of sexual harassment. In fact, the record establishes that S1 did not speak to CW2 about the harassment until September 20, 2012, which is 21 days after S1 learned about the allegations of sexual harassment. We find that a 21 day delay in speaking with an alleged sexual harasser constitutes a failure to act promptly to address harassment. See Rockymore v. U.S. Postal Service, EEOC Appeal No. 0120110311 (Jan. 31, 2012) (The Commission found a two week delay in responding to notification of harassment that included an allegation of physical touching showed that the Agency failed to take prompt corrective action). Between the date that S1 spoke with Complainant about the harassment and the date that he finally spoke with CW2 about the harassment, CW2 continued to harass both Complainant and CW4. The record shows that on September 17, 2010, CW2 heard Complainant say that she was hungry and he made a reference to oral sex when he told her, "I want to eat something too, but you won't let me." Additionally, Complainant stated that on September 18, 2010, while she was in the warehouse CW2 made a comment about her backing her buttocks up to him. Complainant's allegations of the continued harassment are supported by a statement from CW4, who said that CW2 harassed her on September 17, 2010. The harassment would not have continued if S1 promptly and effectively addressed the harassment when he learned of it on August 30, 2010. Additionally, we find that S1 did not act promptly or effectively when he did not separate Complainant and CW2 immediately after he learned of the allegations of sexual harassment. The record shows that Complainant told S1 on a few occasions that she wanted to be separated from CW2, however CW2 continued to be present in her workplace. ROI at 50. Complainant stated that she was told that they could not be separated because CW2 was a federal employee and it was his workplace too, and they could not prevent him from coming through her cashier lane. This is inaccurate, as every measure should be taken to ensure that parties are separated when allegations of sexual harassment involving physically touching are made. Further, the record indicates that when the parties finally were separated, Complainant was forced to change her shift against her will, while CW2 was allowed to keep his shift. ROI at 17. While Complainant did not raise this as a claim in her formal complaint, we want to make sure the Agency is aware that this could have stated a claim of reprisal for her protected EEO activity. Further, while S1 stated he conducted an investigation, there is little evidence in the record that would establish that the Agency took appropriate corrective action to address the harassment. Rockymore, supra (The Commission noted that beyond the Manager's assertion that she conducted an investigation, there was little evidence to show that the purported investigation was sufficient). There is no evidence in the record that would demonstrate why S1 thought a three day suspension was reflective of the severity of the conduct. Additionally, there is no evidence in the record that would indicate that the Agency took any steps to ensure the harassment would not occur again, such as providing CW2 with anti-harassment training beyond the non-effective annual training he had received previously. Further, since the record indicates that this harassment likely affected more than just Complainant, the Agency should have provided the whole Commissary with anti-harassment training. See Bryant v. Dep't of Interior, EEOC Appeal No. 0120091468 (Aug. 31, 2012) (The Agency failed to take prompt and effective corrective action when it failed to provide training to a harasser, and when it failed to provide anti-harassment training to all employees where the actions were widespread in the office). As a result, we find that the Agency is liable for any acts of harassment that occurred after it was put on notice of the harassment on August 30, 2010, and any compensatory damages Complainant may be entitled to for that harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision as a preponderance of the evidence in the record establishes that discrimination existed as alleged, and ORDER the Agency to comply with our Order below. ORDER (C0610) The Agency is ordered to take the following remedial action: 1. The Agency will immediately take steps to ensure that all sexual harassment ceases and desists in the facility. The Agency will ensure that Complainant and CW2 are separated at all times possible, and if this is done by having them work on different shifts, then Complainant shall have the choice of which shift she would like to work. 2. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from complainant in support of her request for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 3. Within 120 days of the date on which this decision becomes final, the Agency shall provide specialized, in person, 8 hour training to all Agency management officials at Robin's Air Force Base regarding employees' rights and management's responsibilities with respect to Title VII, with special emphasis on preventing and responding to harassment, as well as EEO anti-retaliation provisions. Management should also be trained on how to create a workplace where employees feel comfortable reporting harassment. 4. Within 120 days of the date on which this decision becomes final, the Agency shall provide specialized, in person, 8 hour training to all non-supervisory employees who work at the Commissary at Robin's Air Force Base, regarding employees' rights with respect to Title VII, with special emphasis on identifying and reporting harassment. 5. The Agency shall consider taking disciplinary action against S1. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action. 6. The Agency shall consider taking disciplinary action against CW2. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Robin's Air Force Base facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 5-29-2015 __________________ Date 1 We note that the investigator was not able to obtain a statement from CW3, and CW1's statement did not address whether she was subjected to harassment by CW2. 2 The record indicates that this employee may have elected to pursue her claim of harassment through the union grievance process instead of the EEO process. 3 In his declaration S1 stated that he believed he talked to Complainant around September 15, 2010. 4 The Agency representative told the investigator that CW2 was going to be out on leave during the week she proposed to interview him, and it did not make any efforts to ensure that he was available to be interviewed by the investigator throughout the entire investigation. We find that while the Agency erred when it failed to use due diligence to properly plan for CW2 to be available for the investigator, the record is sufficiently developed for a fact finder to be able to make a determination on the merits of the complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130331 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130331