U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvina S.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120141853 Hearing No. 450-2013-00185X Agency No. DLAN130024 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's April 7, 2015 final order implementing the February 10, 2014 Equal Employment Opportunity Commission Administrative Judge's (AJ's) decision in the above-entitled matter 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 reasons that follow, we AFFIRM the Agency's final order. ISSUE PRESENTED The issue presented is whether the AJ properly issued a decision without a hearing finding that Complainant did not establish that she was subjected to sexual harassment and discriminated against based on her race (Caucasian), sex (female), and color (White). BACKGROUND Complainant filed a complaint alleging that she was subjected to sexual harassment and discriminated against based on her race (Caucasian), sex (female), and color (White) when: (1) since June 2010 until May 18, 2012, she was sexually harassed by her Division Chief when he repeatedly contacted her requesting that she meet him after duty hours, and on one occasion intimidated her by coercing her into engaging in sexual relations with him; and (2) she was discriminated against based on her race, sex, color and in retaliation for engaging in previous EEO activity when a Commander attempted to meet with her regarding an EEO complaint without proper representation, and when her government property and leave usage were investigated by the Office of the Inspector General (OIG). At the time of events giving rise to this complaint, Complainant worked as a Distribution Process Worker, WG-6901-06 at the Agency's Distribution Center facility in Red River, Texas. During this time, A-1 (Caucasian, White; female) Hazardous Branch Supervisor, was Complainant's first line supervisor. A-2 (Black, male), Distribution Facility Manager, was her second level supervisor. Complainant indicated that beginning in June 2010, A-2 would call and text her often. In December 2010, she stated that she and A-2 had sexual intercourse in an Agency building while on duty. A-2 used a government vehicle to transport Complainant to the location. After the December 2010 encounter, Complainant stated and A-2 continued to call and text her to ask that she meet him after duty hours. Complainant stated that she always declined. She deleted text messages sent to and received from A-2. Complainant first reported A-2's conduct on May 25, 2012. Complainant's initial allegation was that A-2 continually called her and sent her text messages. She stated that on May 18, 2012, A-2 sent her a text and requested that she meet him at a local hotel. She did not mention the allegation about the December 2010 sexual encounter. After she reported A-2 actions, the record indicates that the harassment stopped. A-3, the Commander of the Installation, ordered a Commander's Inquiry (15-6 investigation) of Complainant's allegations immediately after her May 25, 2012 complaint. He also issued a "No Contact" order to A-2 directing that he have no contact with Complainant. A-2 was also detailed out of his supervisory Division Chief position. A removal action was initiated against A-2 for indecent conduct, fraudulent time and attendance reporting, and misrepresentation of material facts in an official investigation. A-2 retired in lieu of being removed for his misconduct. The initial 15-6 investigation found that Complainant's allegations could not be substantiated. In follow-up interviews, Complainant disclosed the December 2010 incident. A-3 testified that although the 15-6 investigation did not find sexual harassment, it did find evidence of fraud, waste and abuse by possibly A-2, Complainant, and others. Therefore, he requested OIG assistance to investigate the matter. In September 2012, A-3 made separate requests to meet with Complainant and A-3. The request to meet with Complainant was also sent to her Union. A-3 never actually met with Complainant as a result of this request, however. Complainant was subsequently interviewed by an OIG Special Agent on September 25, 2012, with her attorney and the Union President. The OIG investigated Complainant and A-2's use of government property and leave usage dating back to 2010. At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. Over her objections, the AJ granted the Agency's motion for summary judgment. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 103, 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was also given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate. Harassment Claim (1) In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "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. An abusive or hostile working environment exists "when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment." Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep't of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996). To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) 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 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. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). 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 being taken against the employee. A review of the record evidence supports the AJ's finding that Complainant did not establish her claim of sexual harassment. Assuming she established elements 1 through 4 of her claim, we, like the AJ, find that she was unable to establish element 5, i.e., imputing liability to the Agency. First we note that Complainant's allegations do not involve a tangible employment action;2 therefore, the Agency can raise an affirmative defense to avoid liability. Specifically, the Agency can demonstrate that it exercised reasonable care to prevent and correct promptly any harassing behavior; and that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. As noted by the AJ, the Agency had an anti-harassment policy and Complainant admitted that she was trained on the Agency's policy. Although Complainant maintained that she was subjected to harassing conduct by A-2 since June 2010, she did not report his behavior until on or around May 25, 2012. Complainant subsequently testified that she suffered no further harassment after her report. Moreover, A-2 was removed from his position and issued a "No Contact" order. In spite of the delay in reporting, we find that the Agency took immediate action as described above to end the harassment. Disparate Treatment Claim (2) In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant 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. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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, Complainant established prima facie cases of discrimination based on race, color, sex, and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her disparate treatment claim, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. A review of the record supports the AJ's finding Complainant was unable to establish that she was treated differently than similarly situated individuals outside her protected class, or that she suffered any adverse action as a result of any Agency action. Like the AJ, we also note the fact that A-3's email requesting a meeting with Complainant was sent to both her and the Union; therefore, the evidence indicates that she was not asked to meet with A-3 alone. Moreover, during its investigation of Complainant's allegations, management uncovered unrelated evidence of fraud and abuse by the parties and others, and the matter was turned over to OIG for further investigation. While a subject of the investigation, the record indicates that Complainant suffered no adverse action as a result of the investigation or its findings. Furthermore, the fact that A-2 and others were also investigated belies any inference that the OIG investigation was launched merely to retaliate against Complainant for engaging in EEO activity by reporting the harassment. In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant's, and other employees' conduct in the workplace. Nothing in the record, or submitted on appeal by Complainant, demonstrates that the Agency's actions were in any way motivated by discriminatory or retaliatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order implementing the AJ's decision because issuance of this decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred as alleged. 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 __1/30/17________________ 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 A tangible employment action is a significant change in employment status, such as hiring, firing, suspension, non-promotion, reassignment with significantly different responsibilities, or significant changes in benefits. Winston v. Dep't of Health and Human Serv., EEOC Appeal No. 01985752 (Dec. 13, 2000). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141853 2 0120141853