EEOC Appeal 2025003812

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Berenice R.,1
Complainant,
v.
Troy E. Meink,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2025003812
Hearing No. 410-2024-00047X
Agency No. 9R1M202302938
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 1, 2025, final order concerning her equal employment opportunity (EEO)
complaint of 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 following
reasons, the Commission AFFIRMS the Agency’s final order.
At the time of the events giving rise to this complaint, Complainant worked as a
Production 	Specialist, 	GS-1152-11, 	assigned 	to 	the 	Agency’s 	559 th Aircraft
Maintenance Squadron at Robins Air Force Base in Georgia.
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.

2025003812	2
On May 3, 2023, Complainant filed an EEO complaint alleging that the Agency
subjected her to discrimination and a hostile work environment (sexual harassment
by a coworker) on the bases of race (African American) and sex (female) when:
1. 	On October 3, 2022, the C-130 Quality Assurance Lead (Coworker)
said to her, "mmmmmm look at those thighs on you, and "I bet your
panties wet aren't they" and smiled at her; and on October 12, 2022,
when Coworker said to her, "mmmmmmuhmmm look at them thighs,"
"I bet them panties wet, aren't they" and kept looking at her and said, "I
got your number." Coworker then tried to put his arm around her; and
2. 	on March 26, 2023, Complainant became aware that the statements,
provided by the males interviewed were not validated, resulting in the
Director Directed Investigation (DDI) being unsubstantiated for sexual
harassment.
On or about October 12, 2022, Complainant reported Coworker’s conduct to Agency
officials. On October 14, 2022, Coworker’s supervisor issued him a written no-
contact order directing him to have no contact with Complainant, including by
telephone or email, and advising him that a violation could result in disciplinary
action. On October 21, 2022, management initiated a DDI into Complainant’s
allegations. On December 21, 2022, a routine technical review was conducted on the
DDI report and supporting documentation. The technical review determined that the
sexual harassment allegation was substantiated and rejected the notion that sexual
joking 	years 	prior 	meant 	Complainant 	welcomed 	Coworker’s 	comments,
particularly since she had asked him to leave her alone and he repeated the
comments.
The DDI report, issued on January 11, 2023, determined that Coworker made the
sexually inappropriate comments, but that the conduct did not meet the definition of
sexual harassment because it was not clear that the comments were unwelcomed as
there was evidence that Complainant and Coworker had exchanged sexual jokes in
the past. While the DDI and the technical review both determined that Coworker
made sexually inappropriate comments, the two differed in whether the comments
amounted to sexual harassment. The record does not explain the contrary findings
between the technical review and the final report. Based on the findings, the Agency
disciplined Coworker, suspending him for 10 days for a charge of inappropriate
behavior. Coworker did not contact Complainant during or after the investigation,
and the record indicated there was no recurrence of harassing conduct.

2025003812	3
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 timely requested a hearing.
Complainant subsequently filed a motion to compel the Agency to provide, among
other things, the complete internal investigation; communications concerning legal
review of that investigation; and Coworker’s complete disciplinary file. The AJ
denied Complainant’s motion to compel as untimely. The Agency thereafter moved
for summary judgment. The Agency’s motion relied on the investigator’s conclusion
that misconduct was substantiated but sexual harassment was not substantiated,
without reconciling the contrary technical review.
In response to the Agency’s motion, Complainant challenged the Agency’s reliance
on the investigation that did not substantiate the sexual harassment, arguing that it
contained conflicting findings because the technical review found the allegation
substantiated. She also disputed the reliance on statements concerning sexual joking
years earlier and asserted that a hearing was necessary to determine why the
investigative conclusion changed.
On May 29, 2025, the AJ granted the Agency’s motion and issued a summary
judgment decision. The AJ concluded that the investigative record had been
adequately developed and incorporated the Agency’s motion into her decision,
finding that the Agency’s motion identified the issues, established the absence of a
genuine dispute of material fact, and properly analyzed the claims. Assuming, for
the sake of argument, that the conduct occurred as Complainant alleged, the AJ
determined that there was no basis for imputing liability to the Agency as officials
acted immediately to prevent any further offensive conduct by Coworker to
Complainant, and disciplined Coworker.
The Agency subsequently issued a final order fully implementing the AJ’s decision.
This appeal followed.
The Commission’s regulations allow an AJ to grant summary judgment when he or
she finds that there is no genuine issue of material fact. 	29 C.F.R. § 1614.109(g).
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).

2025003812	4
A fact is “material” if it has the potential to affect the outcome of the case. 	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 (EEO MD-110), at Chap. 9, § VI.B.
(Aug. 5, 2015) (providing that an administrative judge’s determination to issue a
decision without a hearing, and the decision itself, will both be reviewed de novo).
In order to establish a prima facie case of sexual harassment, a complainant must
prove, by a preponderance of the evidence, the existence of five elements: (1) that
she is a member of a statutorily protected class; (2) that she was subjected to
unwelcome conduct related to her sex; (3) that the harassment complained of was
based on her sex; (4) that 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) that there is a basis for imputing liability to the
employer. Celine B. v. Dep’t of Navy, EEOC Appeal No. 2019001961 (Sept. 21,
2020).
In cases of coworker harassment, the Agency is responsible for harassment in the
workplace where it (or its agents) knew or should have known of the conduct, unless
it can be shown that it took immediate and appropriate corrective action. The Agency
can raise an affirmative defense when it shows that it took immediate and appropriate
corrective action. 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. Taylor v. Dep’t of the Air Force,
EEOC Request No. 05920194 (July 8, 1992).
Based on the record, the Commission finds that Complainant failed to establish
Agency liability for harassment. We note that Title VII does not impose strict
liability 	upon 	an 	agency 	whenever 	coworker 	misconduct 	occurs. 	Rather, 	an
employer is liable where it knew or should have known of the alleged harassment
and failed to take prompt and appropriate corrective action.
The record demonstrates that Complainant reported Coworker’s behavior and
management responded immediately by issuing a no-contact order and initiating an
investigation, which later resulted in Coworker being suspended for 10 days.

2025003812	5
We acknowledge the inconsistency between the December 21, 2022, technical
review, which described the sexual harassment allegation as substantiated, and the
investigator’s 	report 	submitted 	January 	11, 	2023, 	which 	found 	misconduct
substantiated but sexual harassment unsubstantiated. The available record does not
clearly 	reconcile 	these 	conclusions. 	Nevertheless, 	we 	need 	not 	resolve 	that
discrepancy because, viewing the evidence in Complainant’s favor, we assume
without 	deciding 	that 	Coworker 	engaged 	in 	unwelcome, 	sex-based 	conduct
sufficiently severe or pervasive to constitute harassment. The undisputed evidence
establishes that management promptly issued Coworker a no-contact order, initiated
an investigation, subsequently suspended him for ten days, and effectively stopped
the harassment. Accordingly, the conflicting investigative characterizations do not
create a material factual dispute concerning Agency liability.
Accordingly, 	the 	Agency’s 	final 	order 	implementing 	the 	AJ’s 	decision 	is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. 	If the party
requesting reconsideration elects to file a statement or brief in support of the request,
that 	statement 	or 	brief 	must 	be 	filed 	together 	with 	the 	request 	for
reconsideration. 	A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within which to submit a brief or
statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015).

2025003812	6
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either
party’s request and/or statement or brief in opposition must also include proof of
service on the other party, unless Complainant files their request via the EEOC
Public Portal, in which case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s
request for reconsideration as untimely, unless extenuating circumstances prevented
the timely filing of the request. 	Any supporting documentation must be
submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their
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.

2025003812	7
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:
T. Gimbrere __________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 24, 2026
Date