U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Blanca B.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency. Appeal No. 0120151876 Agency No. DOS-F-037-10 & DOS-F-032-12 DECISION On April 29, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 17, 2015, concerning equal employment opportunity (EEO) Complaint 1 (DOS-F-037) and EEO Complaint 2 (DOS-F-032) 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). BACKGROUND At the time of events giving rise to Complaints 1 and 2, Complainant worked as a Language & Culture Instructor/Curriculum Developer at the Agency's Foreign Service Institute (FSI), School of Language Studies, Arabic Section, in Arlington, Virginia. On January 26, 2010, Complainant filed Complaint 1,2 as amended, alleging that the Agency discriminated against her based on her national origin (Iraqi), sex (female), religion (Christian), and reprisal for prior protected EEO activity under Title VII when: 1. She was subjected to a hostile work environment, which included sexual comments and unwelcome touching; 2. Management failed to advance her career and renew her contract via denying her the opportunity to attend training and proctor student exams.3 On January 4, 2012, Complainant filed Complaint 24 alleging that the Agency discriminated against her based on her national origin (Arabic/Iraqi), sex (female), religion (Christian), color, and in reprisal for prior protected EEO activity under Title VII when: 3. Her teaching contract was not renewed after August 5, 2011; 4. She was subjected to a hostile work environment characterized by, but not limited to, name calling and sharing an office. She specifically asserted that since her conversion to Christianity, she was taunted by her Iraqi colleagues, who called her a "peasant," a "prostitute," a "bitch,' and a "daughter of a dog." She asserted further that she had been told that she had "sold her religion" and had a shoe thrown at her. Complainant further asserted that she had been the victim of an unsolicited sexual overture by a colleague; and 5. On September 23, 2011, she was not selected for a full time teaching position. The Agency completed its initial investigation on Complaint 1 in November 2012. It did not complete an investigation on Complaint 2. On Complaint 2, according to the Agency, Complainant did not submit an affidavit for the investigation. Around that time - on March 14, 2013 - Complainant signed forms withdrawing Complaints 1 and 2.5 The Agency ceased processing Complaint 2, but went ahead and issued a FAD on Complaint 1 on May 13, 2013. In its FAD, the Agency found no discrimination on Complaint 1. Complainant filed an appeal. On appeal, the Agency did not note that Complainant previously withdrew her complaint. In EEOC Appeal No. 0120132236 (May 16, 2014), we recounted that Complainant was provided the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge, but there was no evidence she did so. We reversed the FAD on the ground that the investigation was inadequate. Unaware that that Complainant withdrew Complaints 1 and 2, we ordered the Agency to do a supplemental investigation and to consolidate Complaint 2 with Complaint 1 if the Agency was still processing Complaint 2 and had not yet issued a final decision thereon. In its request for reconsider EEOC Appeal No. 0120132236, the Agency argued that it issued its FAD on Complaint 1 in error, and that Complainant previously withdrew Complaints 1 and 2. It submitted a copy of its letter to the EEOC compliance officer about the withdrawal of Complaint 1, and Complainant's signed withdrawals. We denied the request on the ground that it was untimely filed, and repeated our order in EEOC Appeal No. 0120132236. Following a supplemental investigation on Complaint 1, the Agency issued a new FAD finding no discrimination therein. The Agency found that Complainant was not denied the opportunity to attend training and to proctor tests, and the alleged acts of sexual harassment did not occur. The Agency recounted that it ceased processing Complaint 2 after she withdrew it.6 Management failed to advance Complainant's career and renew her contract via denying her the opportunity to attend training and proctor student exams When asked about her denial of training allegation in the original investigation, Complainant indicated that she was referring to training to become a tester for formal language assessments for students. She wrote that she was denied the training when Arabic Section Language Training Supervisor 1 (S1) kept her waiting. Report of Investigation (ROI), at 179 - 180. In connection with this training, in December 2009, Arabic Section Senior Language Training Supervisor (S2) nominated Complainant to take a two week intensive testing course (January 19 - 20, 2010) for prospective testers and examiners. She was enrolled, and was thereafter assigned a Testing Mentor for her follow up testing certification training, who she last saw in February 2011. All this was confirmed by the Division Director of the Language Testing Unit, FSI. This unit provided the above training, not the Arabic Section. Supplemental ROI (S/ROI), at 1046 - 1047. Complainant was still enrolled in the testing certification training as late as April 2011 or longer, but had not completed it when she was separated from FSI in August 2011. ROI, 238, 254 - 257.7 Additionally, outside the above, Complainant attended some five training sessions on testing from April 2010 to December 2010. ROI, 251- 252. On appeal, Complainant indicates that her allegation about denial of training regards being certified as a tester or examiner in that she discusses this, not other types of training. Arabic Section Language Training Supervisor (S3) stated that to his knowledge Complainant was not denied the opportunity to proctor exams. ROI, at 198. S1 stated Complainant did not advise her that she was denied the opportunity to proctor exams, and she is not aware of this occurring. ROI, at 314 - 315. Complainant served as a proctor from time to time. The record reflects that from December 2008 to April 2009, Complainant was placed on the testing schedule, testing students four times from December 2008 to April 2009. ROI, 263, 270, 273, 275. Agency Arabic Section Language and Culture Instructor (Coworker 4) stated that she was surprised to see Complainant testing (in December 2008) because she was still a new teacher. S/ROI, at 185. Referring to Complainant being partnered in testing in December 2008, a contract Arabic Section Instructor of Arabic Culture and Language (Coworker 6) stated she was wondered why this happened since Complainant was new. Coworker 6 stated that she did not start being placed in testing rotations until teaching at FSI for two years. S/ROI, at 137 - 138. S2, and Arabic Section Language and Training Supervisor (S4), rated Complainant for her annual performance evaluation for the period of August 2009 to August 20, 2010. They gave her a very high rating, and recommended that she be used again. S/ROI, 29 - 30. Task orders for contract instructors expire annually on August 22. Complainant's second line supervisor - the Director, Division of near East, Central and South Asian Languages - stated serving as a tester had no effect on the contractor's ability to continue working as a contract language instructor. S/ROI, at 16. S1, S2, S3 and S4 all had direct supervisory authority over Complainant. Around late 2010, Complainant's boyfriend's co-worker accused Complainant of sexual harassment, and the Agency completed an administrative sexual harassment inquiry in February 2011. S/ROI, 1043 - 1044; Complaint 2 file. According to the Agency Contracting Officer's Representative (COR), the boyfriend accused Complainant of harassment, and at the same time Complainant allegedly confronted a female instructor in another section for allegedly being with the boyfriend in the FSI cafeteria. The COR stated that on January 6, 2011, the FSI Contracting Officer terminated Complainant's contract based on conduct - harassment and intimidation of individuals and abusive language directed toward individuals. S/ROI, 20 - 21. But the counselor's report in connection with Complaint 2 indicates that Complainant served the Agency until August 5, 2011, and that the second line supervisor relayed that nothing would prevent Complainant from being accepted to teach at FSI, should she qualify for employment through a staffing firm. Sexual Harassment In October 2009, under authority of the Agency's formal anti-sexual harassment policy, the Agency's Office of Civil Rights completed a comprehensive sexual harassment inquiry into allegations of harassment in the Arabic Section. Detailed signed and dated declarations were taken from the two alleged victims - Complainant and Coworker 1 (another contract Arabic Section instructor), the alleged perpetrator - S2, and 15 Arabic Section witnesses. Documentation was also collected. The Agency's remand supplemental investigation on sexual harassment mainly consisted of incorporating this inquiry.8 Complainant started working in the Arabic Section in April 2008. The following paragraphs below recount her declaration account. She was discussing students in S2's office in May 2008, when S2 said "give me a kiss, to your Uncle." She responded "what? I don't even give kisses to my blood relative Uncle," and S2 laughed, trying to pass it off as a joke. While it was normal for a supervisor to observe Complainant's classes, around this time S2 started doing this so frequently that a student asked her about it. By June 2008, S2 started asking her to come to his office with excuses such as talking about a student or teaching. S2 would ask Complainant to tell him Iraqi jokes, which are usually sexual and dirty, and would tell her some Iraqi jokes. In response to S2's request, Complainant said she did not know any Iraqi jokes, and was upset. In his office in June 2008, S2 said to Complainant let's go to a restaurant to talk about her contract with a sexually suggestive look in his eyes.9 After learning that Complainant applied for a direct contract with FSI, S2 was surprised and said let's go out and celebrate, and she said no, and asked S2 why he asks her out. In October 2008, S2 asked Complainant "how do you feel about sex? Did you have sex before marriage?" and "if you don't do it (sex) with men, than do you do anything with women?" S2 told Complainant women with women or men with me is very common in Iraq and Kuwait, and she responded that she did not know of this and had other issues to concern herself with. In October 2008, S2 also asked Complainant if she saw any sexual movies lately, especially ones with women with women. Complainant told S2 no, was shocked, and S2 continued that lots of stores sell these kind of sexual movies and asked if there were sex movies in Iraq. Complainant responded that she did not know and women do not know about these things. One day in (December 2008) after they finished testing students on the 2nd floor, S2 got up and pinched her cheeks and kissed her forehead.10 Another time in December 2008, S2 told Complainant "one of my friends told me that Iraqi men like to do things from behind (sex). When she responded this was very dirty, S2 said "oh, you haven't done this before?" and "it's nice to try (having sex) with women to women, but men to men isn't so nice." In February 2009, Complainant met S2 in an office on the first floor so she could obtain an Arabic keyboard, and when the person went to another room to get it, S2 put his hand on Complainant's "butt and touched it." Complainant asked "what are you doing," and he said "oh, sorry, my hand just went the wrong way." In March 2009, S2 came to Complainant's office and after asking how she was doing, took her hand and started to put it on his penis. She pretended she did not know what S2 was doing and pulled her hand away, but he was trying to force it on his penis. In May 2009, S2 told Complainant he could make sure her contract with FSI was renewed if she was smooth with him (nice - giving him what he wanted), but if she was strong with him he would kick her out of FSI. In May 2009 S2 said to Complainant "Oh [name], let's go to a hotel," and she responded "Hotel? What are we going to do in a hotel?" S2 replied "don't think I'm going to fuck you" and Complainant said "what?!" S2 said he wanted to go to the hotel to talk about students and her contract. After Complainant did not give a straight answer, S2 everyday asked her if she decided yet and what she thought before he went on a trip - about a three week period. In her declaration,11 Coworker 1 also detailed allegations of sexual harassment from 2004 to May 2009, against S2, who was one of her supervisors. The following paragraphs are a summary of some of the incidents in Coworker 1's declaration account. After being invited to restaurants by S2 with coworkers, the harassment began. In the Spring of 2004, following a celebration in FSI, S2 ran after her saying he wanted to tell her something and said "by the way, I am a licker and your boobs turn me on and I'm very good at sucking nipples and boobs." She was embarrassed and walked away quickly. In the same Spring S2 asked about a birth mark on Coworker 1's upper chest, to which she responded by dressing more modestly. After lunchtime in the Fall of 2004, S2 rubbed his private organ against her buttocks at parking lot gate 5. When S2 touched her, Coworker 1 would tell him to stop. In the Fall and Winter of 2004, at two specified restaurants, whenever she went to the buffet S2 would follow her close and over complimented her on her appearance. At a specified restaurant in the Winter of 2004, S2 quickly touched his private parts on her buttocks at the buffet. S2 continued to invite Coworker 1 to restaurants, and she repeatedly refused. In a second floor hallway in the Spring of 2005, Coworker 1 asked S2 about Coworker 2's whereabouts, an Agency Instructor of Arabic Language and Culture, and S2 responded by asking if they were both lesbians. Coworker 1 was disgusted by the remark. In the Winter of 2005, in the FSI parking lot, S2 asked Coworker 1 to go with him to a hotel room. In the Spring of 2006 in the kitchen/pantry room S2 used one hand to grab one of her breasts and then moved back as if nothing happened. She said "are you crazy?!" and S2 replied "Oh [name], you always turn me on." In the Fall of 2006, while riding an elevator to the Testing unit, S2 impulsively and quickly grabbed Coworker 1's buttocks. She stopped riding the elevator with him. On many occasions, Coworker 1 asked S2 to leave her alone and stop his dirty and forbidden behavior - he replied these are small sins. S2 once suggested that he did not want sexual intercourse, but "just liked playing." In S2's office in September 2008, S2 told Coworker 1 that "he's a licker, and he's very good at sucking nipples and breasts." Coworker 1 suggested this was in response to her telling him to leave her alone and stop his dirty behavior. In March 2009, after calling Coworker 1 into his office to discuss testing training, S2 told her the Sudanese slang terms for vagina, breasts, buttock and penis, asked her for the equivalent in her Tunisian dialect, and told her dirty jokes and asked her what dirty jokes she knew. S2 also looked toward Coworker 1's vagina and asked "how is it doing?" When S2 did these things, Coworker 1 would always ignore him and shut him out. In an undated instance, in the FSI kitchen S2 tightly grabbed Coworker 1's hand and started to pull it down to rub his penis and she strongly resisted.12 In May 2009, when Coworker 1 was in front of S2's office, he winked and looked at her in a suggestive manner. Complainant indicated that she confided to an Agency Language and Culture Instructor (Coworker 3), who became her friend. He was with FSI since 1988. According to Coworker 3, Complainant told him that S2 made a pass at her when he said "give your uncle a kiss," that S2 frequently visited her class, that he asked her to tell him some dirty Iraqi jokes, that he pinched her cheeks once when she tested with him, that he grabbed her hands and put them on his penis, that S2 asked her to go to a hotel room with him to talk about her contract, and when she said no replied "What? Do you think I'm going to fuck you?" Coworker 3 related that Complainant said she was scared by the penis incident, and that she shook every time she told him of these incidents, and she raised these things with him throughout months. In his declaration, which was written in August 2009, Coworker 3 wrote Complainant raised the penis incident about two months prior (the incident allegedly occurred in March 2009). S/ROI, 109 - 115. Coworker 4 related that in July or August 2008, Complainant told her that when she was in S2's office he asked her to go out socially and could give her a job at FSI. Coworker 4 stated Complainant expressed that S2 implied it was not just a friendly invitation. Coworker 4 stated that Complainant asked him why S2 would do this, saying "who does he think I am? I'm a married woman!" Coworker 4 wrote that Complainant was very distressed and nervous. S/ROI, 184, 187. Coworker 1 stated that she confided to coworkers about being sexually harassed by S2 - discussing specified incidents. This is corroborated by statements of coworkers, one of whom indicated the confiding started in 2004. S/ROI, at 126 - 128. In 2004, S4 started with FSI as a contractor and became an Agency Language Training Supervisor in January 2008. S4 stated that she had no reason to doubt the truth of Coworker 1's statement. She explained that S2 has a tendency to tell bad jokes about women's body parts from the waist down, that she heard them, and that S2 likes to joke depending on whether the listener tells him to stop or not. S4 wrote that once S2 told her he was in love with her, and when she told him to stop S2 rephrased his statement and said he loved her like a daughter. S4 stated that she noticed that S2 tells his jokes to contractors, not direct Agency employees, and as soon as she transitioned to his colleague and a direct hire S2 stopped telling her these jokes. S/ROI, 161 - 162. S2 strongly denied Complainant and Coworker 1's allegations of sexual harassment, categorically denying in detail each incident presented to him. He also denied S4's account. Below are examples of his denials regarding Complainant. S2, who is from Sudan, does not know anything about Iraqi culture, does not know Iraqi jokes, and would never ask someone to tell him a joke, let alone an Iraqi joke. He only sat in Complainant's classes maybe twice and she expressed to him that she wanted supervisors to visit her classroom so they could see her level of teaching, and he told her he would do so when he had time. Complainant sits with others in her office, there are 12 - 13 teachers in offices all around hers, and he never went to her office while she was alone and forcefully guided her hand to his penis and would never do this. He never asked Complainant to go to a hotel to talk about her contract and did not even know there was a hotel near FSI. S2 denied ever raising women having sex with women with Complainant, saying this is a taboo topic. S2 questioned Complainant's emotional stability, and noted she shook with anger when he pointed out grammatical and spelling errors in an article she wrote. Complainant came to his office numerous times complaining about her colleagues, and early on she repeatedly raised her contract with him. The record reflects that S2 had an open door policy, was jovial and outgoing, and instructors frequently visited his office, both individually and in groups, male and female. He stated everyone had equal access to his time. Numerous instructors provided declarations and none stated they witnessed S2 engage in any of the sexually harassing incidents recounted by Complainant and Coworker 1, and many specifically stated they did not. While Coworker 1 wrote that Coworker 2 told her she witnessed the Fall 2004 incident of S2 rubbing his private organ against Coworker 2's buttocks at the parking lot gate, Coworker 2 denied witnessing any of the behavior Coworker 2 told her about, or anything inappropriate. S/ROI at 127. A number of witnesses stood up for S2's character. For example, Coworker 5, an Agency Instructor of Arabic Language and Culture, stated S2's office is always flooded with instructors because he is so kind, people are always smiling and laughing there, and S2 has honor and integrity. Coworker 5 stated S2's jokes are always clean, and up to the time Coworker 1 stopped going to S2's office (around April or May 2009), she was always smiling and laughing and happy to be there. He stated S2 is involved in the Sudanese community, and serves as an elder to help reconcile families. S/ROI, 117 - 119. Coworker 6, a contract Culture and Language Instructor stated that when Complainant went to S2's office, she seemed to be happy and talking. S/ROI, 152. A lead Training Specialist stated that S2's jokes to him and in front of others were not about female body parts, and are not inappropriate. S/ROI, at 107. S3 stated S2 is a man of honor. ANALYSIS AND FINDINGS As an initial matter, we find that the Agency properly ceased processing Complaint 2 because it was withdrawn by Complainant. In EEOC Appeal No. 0120132236 (May 16, 2014), Agency's request for reconsideration denied for being untimely filed, EEOC Request No. 0520130414 (Dec. 11, 2014), we ordered the Agency to consolidate Complaint 2 with Complaint 1 if it was still processing Complaint 2 and had not yet issued a final decision thereon. Because Complainant previously withdrew Complaint 2 on March 14, 2013, the Agency was not required to consolidate it with Complaint 1 under the above order. While Complainant withdrew Complaint 1 at the same time, per the above order the Agency was required to continue processing it after the order was reaffirmed on request for reconsideration. Complainant, represented by counsel on appeal, argues that the Agency did not adequately develop the record, nor comply with the specifics of our order in EEOC Request No. 0520130414 to do so. She argues that her complaint should be remanded for further investigation. While the Agency did not gather all the specific information ordered, we find that it substantially complied with our order in that the investigation adequately developed the record. Management failed to advance Complainant's career and renew her contract via denying her the opportunity to attend training and proctor student exams To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Regarding denial of training, Complainant clarified that this referred to becoming a certified tester or examiner. Complainant stated that she was denied the training when S1, a supervisor in the Arabic Section, kept her waiting. The training, however, was conducted by the Language Testing Unit, not the Arabic Section. The certification training started around January 2010, and Complainant did not complete it by the time she separated in August 2011. S3 stated it typically took 1.5 years to have a tester certified, and another year to certify an examiner. Complainant's second line supervisor relayed to Complainant's EEO counselor that training to become a tester/examiner takes at least two years, and passing a test. ROI, 63. Given the above, we agree with the Agency that Complainant was not denied the opportunity for training. Regarding proctoring, the record reflects Complainant was placed on the testing schedule by December 2008, sooner than usual for a new teacher, albeit this does not address her claim about the lack of frequency of her testing students. But much more significantly, the record does not show that proctoring tests and exams would have enhanced Complainant' chances of getting renewed. For the rating period of August 2009 to August 20, 2010, Complainant received a very high rating, and management recommended she be used again - at renewal time. Also, according to COR, the Agency Contracting Officer terminated Complainant's contract on January 6, 2011, based on misconduct - suggesting it was directed against two coworkers - albeit the record shows she continued to work until August 2011. We find Complainant did not show that management failed to advance her career and renew her contract via denying her the opportunity to attend training and proctor student exams. Accordingly, we find no discrimination on any basis on issue 2. Sexual Harassment It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to their membership in that class; (3) the harassment complained of was based on her protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). An employer is subject to vicarious liability for unlawful harassment if the harassment was "created by a supervisor with immediate . . . authority over the employee." Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at 4 (June 18, 1999). However, where, as here, the harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, the employer can raise an affirmative defense to liability, which it must prove by a preponderance of the evidence. The defense consists of two elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id., at 12. In finding no sexual harassment, the Agency reasoned that the alleged acts of sexual harassment did not occur. We disagree. We find that Complainant's version of events is supported by a preponderance of the evidence. Resolving a harassment claim often depends on the credibility of the parties. A victim's account must be sufficiently detailed and internally consistent so as to be plausible. Persons with whom a Complainant has discussed an incident, such as co-workers, should be interviewed. Evidence that other employees were harassed by the same person is persuasive evidence that the conduct occurred and was unwelcome. Policy Guidance on Current Issues of Sexual Harassment, ¶ B. Evaluating Evidence of Harassment, EEOC No. N-915-050 (Mar. 19, 1990). Complainant's account is detailed and internally consistent. It contains a detailed description of incidents and dates. Complainant's description can be described as follows. S2's harassment started off with a pass designed to be construed as a joke and unwarranted attention, then moving on to sexual jokes and S2 inviting her to a restaurant. By October 2008, things escalated with S2's intrusive questions about Complainant's sexual activity and discussions designed to uncover her sexual thinking or talk about sex, and then in December 2008, pinching her cheeks and kissing her forehead. In February 2009, things progressed further when S2 put his hand on Complainant's buttock. In March 2009, S2 tried to move her hand to his penis, and in May 2009, repeatedly pressured Complainant to go to hotel. This account is plausible involving escalation over time. We acknowledge S2's strong denials of all the above and Arabic Section management and staff providing powerful character references and supportive statements about S2's behavior. What tips the balance in Complainant's favor is that Coworker 1 also complained that she was a victim of S2's sexual harassment - in some ways similar to Complainant; both Complainant and Coworker 1 confiding to coworkers about being victimized by S2, and S4's statement corroborating that S2 told her sexual jokes and said he loved her. We find that Complainant was subjected to sexual harassment because of her sex (female). In its FAD, the Agency conceded that the actions, as alleged, constituted unwanted sexual comments and contact. We agree S2's actions toward Complainant were unwelcome. Complainant expressed this to him. In its FAD, the Agency also conceded that the actions, as alleged by Complainant, were severe and pervasive, and were serious over a long period of time, and a reasonable person under the same circumstances would view the work environment as hostile, offensive, or abusive. We agree. Accordingly, we find that Complainant was subjected to sexual harassment in the workplace by one of her supervisors, S2. This harassment did not result in a tangible employment action. Accordingly, to avoid liability, the Agency must raise an affirmative defense, and prove it by the preponderance of the evidence. The Agency did not raise an affirmative defense. In its FAD the Agency found that there was a basis for imputing liability to it because S2 was an Agency supervisor. It also did not raise an affirmative defense on appeal. We find, by a preponderance of the evidence, that Complainant was subjected to discriminatory sexual harassment in the workplace for which it is liable.13 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find Complainant was not subjected to discrimination regarding issue 2, as defined herein. We further find that Complainant was subjected to discrimination based on her sex regarding issue 1 - sexual harassment. ORDER The Agency is ordered to take the following remedial actions: 1. The Agency is directed to conduct training at FSI, School of Language Studies for all management and staff in the Arabic Section. The training shall focus on how to identify and prevent sexual harassment connected with employment.14 2. If S2 is still employed with the Agency, it shall consider taking disciplinary action against him. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 3. The Agency shall gather evidence on compensatory damages, including providing Complainant an opportunity to submit evidence of her pecuniary and non-pecuniary damages regarding being sexually harassed. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) Thereafter, the Agency shall calculate damages, pay Complainant any damages awarded, and issue a new FAD on damages appealable to the Commission. The Agency shall complete the above actions within 150 calendar days after this decision becomes final.15 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 of the agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Foreign Service Institute, School of Language Studies 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 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 (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 July 7, 2016 __________________ 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 The Agency initially dismissed Complaint 1 for failure to state a claim, reasoning that Complainant was a contractor with the Agency, not an employee. In EEOC Request No. 0520110069 (Apr. 26, 2012), the Commission reversed. It found that Complainant was a common law or de facto employee of the Agency. 3 This issue was defined by the Agency as Complainant being denied the opportunities to attend training and proctor student exams. In EEOC Appeal No. 0120132236 (May 16, 2014), Agency's request to reconsider denied for being untimely filed, EEOC Request No. 0520140414 (Dec. 11, 2014), the Commission ruled that the denials were in reality part of the same claim - management's unlawful discriminatory failure to advance Complainant's career and contract renewal. The Commission ordered the Agency to obtain: (a) comparative treatment evidence about the number of trainings and test examinations that other similarly situated language instructors attended, as well as copies of performance evaluations for these individuals, and whether their contracts were renewed, and (b) applicable personnel policies, testimony, and other evidence explaining how the number of trainings and test examinations affected the Agency's evaluation of language instructors' performance each year and decision to renew their contracts. The type of information the Commission ordered the Agency to gather demonstrates that issue 2 is connected to training and proctoring. 4 In EEOC Appeal No. 0120122132 (Oct. 19, 2012), the Commission reversed the Agency's dismissal of Complaint 2 for failure to timely initiate EEO counseling. 5 On March 22, 2013, the Agency submitted compliance reports on our orders in EEOC Request No. 0520110069 and EEOC Appeal No. 0120122132 directing the Agency to process Complaints 1 and 2. It provided Complainant's signed March 14, 2013, withdrawal forms on Complaints 1 and 2. In response, by letter dated May 29, 2013, an EEOC Compliance Officer notified the parties that compliance monitoring activity ceased on our order to the Agency in EEOC Appeal No. 0120102070 to process Complaint 1 because the Agency notified us that Complainant withdrew her complaint. EEOC Appeal No. 0120102070 did not contain an order. We reversed that appeal decision in EEOC Request No. 0520110069, so the Compliance Officer's letter actually applied to our order in Request No. 0520110069. According to our case tracking system, on May 29, 2013, our compliance monitoring activity also ceased on our order in EEOC Appeal No. 0120122132 on Complaint 2. 6 While the Agency noted that Complainant also withdrew Complaint 1, it adjudicated Complaint 1 with a finding of no discrimination. 7 While S1 stated that in 2010 the Language Testing Unit recommended that language sections stop training their contactors to conduct testing because they often left before the benefits of the investment could be repeated, the record shows Complainant received the above training in 2010 and 2011. S1 stated she was not aware that Complainant was denied training. ROI, 312 - 314. 8 Coworker 1 filed an appeal from the Agency's procedural dismissal of her complaint, which we reversed. EEOC Appeal No. 0120101859 (Aug. 18, 2010). For that appeal, the Agency submitted a complaint file, which included unsigned and undated versions of the above declarations by Complainant and Coworker 1. Handwritten dates for some events were in the margins, some of which we use here. The ROI also includes Complainant's unsigned and undated declaration with the handwritten dates. 9 Starting in April 2008, Complainant served the Agency via a contract she signed with it, but was on a loan agreement with employer - a large language training organization. In August 2008, Complainant allowed the loan agreement to expire and contracted directly with the Agency to provide her services. 10 S2 stated that he did not schedule himself as a testing partner with Complainant, S3 did. S/ROI at 105. S3 stated that he was the main scheduler. S/ROI, at 192 - 193. 11 The declaration included a referenced Excel spreadsheet with incidents, dates, and locations. 12 We note that this undated incident was not included in Coworker 1's Excel spreadsheet, which contained significant incidents. 13 As we have found that Complainant was subjected to harassment based on her sex, we need not determine whether the same harassment was also based on her national origin, religion, and reprisal for prior protected EEO activity. 14 We strongly recommend that prior to conducting the training, those responsible for doing so review the EEOC's Report of the Select Task Force on the Study of Harassment in the Workplace (June 2016), which found that much of the harassment training done over the last 30 years has been ineffective in preventing harassment. See https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm, "Training Must Change" paragraph in the Executive Summary section. In the Report, the EEOC recommended new approaches to anti-harassment training, specifically "Workplace Civility Training" and, with modification for the workplace, "Bystander Intervention Training". 15 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151876 2 0120151876