2025003812•EEOC Appeal 2025003812
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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
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