U.S.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Katrina Webster, a/k/a

Rosamaria F.,1
Complainant,

v.

Thomas B. Modly,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120181068

Agency No. DON-17-00030-01579

DECISION

On February 6, 2018, 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
January 8, 2018, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission
MODIFIES and REMANDS the Agency’s final decision for further processing.

ISSUES PRESENTED

Whether the Agency subjected Complainant to discriminatory harassment on the bases of race
(African-American) and reprisal when her first-line supervisor allegedly permitted a working
environment where she was subjected to a hostile work environment by a contract employee.

Whether the Agency’s anti-harassment policy adequately addresses the Agency’s legal obligation
to prevent harassment in the workplace in accordance with the Commission’s Management
Directive 715 (MD-715).

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 0120181068

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Secretary, NK-0318-
II, for Strategic Systems Programs Headquarters at the Washington Navy Yard in Washington,
D.C.

On May 20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and in reprisal for prior protected EEO activity
arising under Title VII when on or about March 3, 2017, her first line supervisor allegedly
permitted a working environment where she was subjected to a hostile work environment by a
contract employee (Information Technology Manager, Caucasian).

During the EEO investigation, Complainant recounted several incidents of harassment by the
contract employee. Specifically, Complainant alleged that the contract employee told another
employee, “If you see [Complainant] turn the other way.” Complainant maintained that the
contract employee also referred to Complainant as “trouble” and allegedly told Complainant’s new
Assistant Branch Chief to “watch out for [Complainant].” She declared that the contract employee
sought to dissuade her from engaging in EEO activity by making statements that were critical of
her prior EEO activity and even tried to remove a printer from her desk. She reasoned that the
contract employee may have learned about her prior EEO activity from her supervisor, an
individual whom she had previously named as a responsible management official and/or witness
in 18 EEO complaints (excluding instant complaint). Complainant indicated that she became very
suspicious about the true motivations of the contract employee when the Agency’s EEO counselor
only spoke to her supervisor and the Assistant Branch Chief during the informal EEO process and
did not interview the contract employee or other witnesses. She emphasized that management did
not respond to her cries for help and that the Agency’s harassment policies only address sexual
harassment and never nonsexual harassment.

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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).
 3 0120181068

Harassment Claims

For Complainant to prevail on her allegation of harassment, she must show that: (1) she belongs
to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the Agency. 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
Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have
been “sufficiently severe or pervasive to alter the conditions of complainant’s employment and
create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

To establish a claim of retaliatory harassment by a coworker (in addition to showing that the
harassment is motivated by protected EEO conduct), Complainant must show that: (1) the
coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from
making or supporting a charge of discrimination; (2) supervisors or members of management have
actual or constructive knowledge of the coworker’s retaliatory behavior; and (3) supervisors or
members of management have condoned, tolerated, or encouraged the acts of retaliation, or have
responded to the complaints so inadequately that the response manifests indifference or
unreasonableness under the circumstances. Hawkins v. Anheuser Busch, Inc., 517 F.3d 321 (6th
Cir.2008); See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006); see
also, Owen v. Peake, 2008 WL 4449011, at 4 (S.D. Ohio 2008); Satterfield v. Karnes, 736 F. Supp.
2d 1138, 1170 (S.D. Ohio 2010).

After careful consideration of the record, we conclude that the Agency properly found that
Complainant failed to persuasively show that she was subjected to a hostile work environment. In
reaching this conclusion, we considered Complainant’s contention that the contract employee
subjected her to harassment on the bases of race and reprisal; however, we find that the
preponderant evidence fails to establish a causal link between the contract employee’s actions and
Complainant’s protected characteristics.2

Regarding the printer incident, we note that the contract employee stated that he allowed
Complainant to keep her printer as a courtesy even though he was technically required to take
away Complainant’s printer because a Presidential Directive required agencies to reduce their IT
equipment footprints.

2
Because Complainant has failed to demonstrate a causal link between the alleged harassment and
her protected characteristics, we need not consider whether the alleged harassment affected a term
or condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment.
 4 0120181068

The Chief Information Officer, in contrast, averred that the contract employee removed
Complainant’s printer because the Agency implemented a “Printer Reduction Plan.” While we
note that there is a discrepancy as to whether the contract employee removed Complainant’s
printer, we find that the preponderant evidence fails to show that the contract employee acted with
discriminatory or retaliatory motive with regard to Complainant’s printer.

As for the alleged remarks, the record reflects that the contract employee admitted that he said,
“Here comes trouble,” as Complainant approached him; however, he explained that he made the
comment in jest because Complainant always turned to him for assistance with IT issues even
though he did not deal with everyday IT issues. The contract employee, however, outright denied
telling Complainant’s colleagues to “turn the other way” and “watch out for her.” While we
acknowledge Complainant’s disagreement with the contract employee’s explanations, we note that
Complainant requested a final decision from the Agency. In so doing, Complainant waived her
right to request a hearing before an EEOC Administrative Judge, where she could have engaged
in discovery and crossed-examined witnesses such as the contract employee. Therefore, we can
only evaluate the facts based on the weight of the evidence presented to us. Based on the totality
of the record before us, we find that Complainant has not established that she was subjected to
harassment on the bases alleged.

Breach of EEO Confidentiality

Notwithstanding our finding of no discrimination with regard to Complainant’s alleged harassment

claims, we find that the Agency subjected Complainant to discrimination on the basis of reprisal
when Complainant’s supervisor revealed Complainant’s protected EEO activity to the Fire Control
and Guidance Branch Deputy. We remind the Agency that complainants are generally entitled to
confidentiality with regard to their EEO complaints.3 Our review of the affidavit from the Fire
Control and Guidance Branch Deputy shows that the Agency fell short of its legal obligation to
ensure confidentiality.

As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is
based on a retaliatory motive and is reasonably likely to deter a reasonable employee from
engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take
adverse actions such as reprimands, negative evaluations, and harassment are actionable.
Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004
(Enforcement Guidance on Retaliation), at § II. B. (Aug. 25, 2016).

3
We note that an agency cannot guarantee complete confidentiality, because it cannot conduct an
effective investigation without revealing certain information to the alleged harasser and potential
witnesses. However, information about the allegation of harassment should be shared only with
those who need to know about it. Records relating to harassment complaints should be kept
confidential on the same basis. See Enforcement Guidance on Retaliation, Part
V(C)(1)(c)(“Confidentiality”).
 5 0120181068

Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms”
in the anti-retaliation provisions, we have found a broad range of actions to be retaliatory. For
example, we have held that a supervisor threatening an employee by saying, “What goes around,
comes around” when discussing an EEO complaint constitutes reprisal. Vincent v. U.S. Postal
Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. for recons. den., EEOC Request No.
0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an
employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is reprisal.
Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when
a Labor Management Specialist told the complainant, “as a friend,” that her EEO claim would
polarize the office).

Similarly, the Commission has held that disclosure of EEO activity by a supervisor to coworkers
constitutes reprisal. Complainant v. Dep’t of Justice, EEOC Appeal No. 0120132430 (July 9,
2015) (reprisal found where a supervisor broadcasted complainant’s EEO activity in the presence
of coworkers and management); see also Melodee M. v. Dep’t of Homeland Sec., EEOC Appeal
No. 0120180064 (June 14, 2019) (affirming agency’s finding of reprisal when complainant’s
second level supervisor disclosed complainant’s EEO activity to others). We have also found
reprisal where a human resources (HR) employee inadvertently negatively left a message on a
complainant’s voicemail regarding the settlement of a prior EEO complaint. Complainant v. Dep’t
of Justice, EEOC Appeal No. 0720120032 (May 1, 2014) (complainant subjected to retaliation
when a HR employee and coworker inadvertently left message on complainant’s work voicemail
berating her and using strong language while discussing settlement of complainant’s prior EEO
complaint);

In this case, the record clearly shows that the Fire Control and Guidance Branch Deputy, when
questioned about how she learned about Complainant’s prior EEO activity, responded with the
following: “I was told by the Branch Head at the time, [Complainant’s supervisor], that
[Complainant] has made EEO complaints in the past.” See Affidavit of T.J.Y., Complaint File, pg.
9. By the Agency’s own admission, the Fire Control and Guidance Branch Deputy did not
supervise Complainant. See Memorandum from Agency Representative, id. at pg. 5. As such,
Complainant’s supervisor should not have disclosed Complainant’s prior EEO activity to the Fire
Control and Guidance Branch Deputy. We find that this disclosure, on its face, discourages
participation in the EEO process and constitutes reprisal.

In reaching this conclusion, we are mindful that Complainant did not allege that she was subjected
to discrimination on the basis of reprisal when her supervisor disclosed her protected EEO activity
to the Fire Control and Guidance Branch Deputy. Nevertheless, in our prior decisions, we have
found reprisal even where a complainant did not claim reprisal. For example, in Light v. Dep’t of
Vet. Aff., EEOC Appeal No. 0120111229 (Nov. 22, 2011), the Commission affirmed the agency’s
finding of reprisal when complainant’s second-level supervisor admitted to telling complainant
that she took offense at complainant’s complaints about discrimination. req. for recons. den.,
EEOC Request No. 0520120207 (June 6, 2012).
 6 0120181068

Though the complainant in Light did not raise reprisal as a basis, the Commission affirmed the
agency’s finding that the evidence developed during the EEO investigation violated the “letter and
spirit of EEO law which requires agencies to promote and support the full realization of equal
employment opportunity.” As in Light, supra, we too conclude that the evidence in this case
manifestly demonstrates a violation of the “letter and spirit of EEO law which requires agencies
to promote and support the full realization of equal employment opportunity.” The only question
that remains for us to decide is the appropriate remedy.

To remedy findings of discrimination, the Commission is authorized to award compensatory

damages as part of “make whole” relief for a complainant. However, not all violations necessarily
entitle a complainant to individual relief. Vincent v. U.S. Postal Serv., EEOC Appeal No.
0120072908 (Aug. 3, 2009) (citing Binseel v. Dep’t of the Army, EEOC Request No. 05970584
(Oct. 8, 1998)). Rather, the action giving rise to the damages must be intentional. Id.

Our prior decisions establish that complainants are entitled to compensatory damages for the
unlawful disclosure of their EEO activity. For example, in Light, supra, we awarded compensatory
damages even though Complainant did not prevail on any of her individual claims of
discrimination. In rejecting the agency’s conclusion that complainant was not entitled to
compensatory damages because she did not prevail on her underlying claims, we expressly found
that the complainant was indeed entitled to compensatory damages because the agency’s actions
were likely to deter protected activity by complainant or others. Id.

The Commission has also awarded compensatory damages even where the agency claimed that
the unlawful disclosure of a complainant’s EEO activity was inadvertent. See Candi R. v. Envtl.
Prot. Agency, EEOC Appeal No. 0120171394 (Sept. 14, 2018) (holding that the asserted
inadvertent nature of the disclosure of complainant’s EEO activity did not negate the fact that
sending these emails to all her colleagues would be reasonably likely to deter an employee from
engaging in EEO activity and therefore constituted reprisal warranting the imposition of
compensatory damages); req. for recons. den., EEOC Request No. 2019000393 (Feb. 8, 2019). We
shall do the same in this case, as it clear from the record that Complainant’s supervisor acted
affirmatively (i.e., made the disclosure) to unlawfully disclose Complainant’s protected EEO
activity. See also Melodee M., supra.

For the above reasons, we find that Complainant was subjected to unlawful reprisal in the
disclosure of her EEO activity by her supervisor and that compensatory damages may be awarded
should Complainant be able to show she suffered a compensable harm as a result of the disclosure.

Sufficiency of the Agency’s Anti-Harassment Policy

As we have serious concerns regarding the Agency’s handling of harassment claims, particularly
with regard to the Agency’s legal obligation to ensure the confidentiality of such claims, we take
this opportunity to review the Agency’s anti-harassment policy in its entirety. See Executive Order
11478, Sec. 3 (“The Equal Employment Opportunity Commission shall be responsible for
directing and furthering the implementation of the policy of the Government of the United States
 7 0120181068

to provide equal opportunity in Federal employment for all employees or applicants for
employment.”). After careful consideration of the record, we find that the Agency’s anti-
harassment policy does not adequately address the Agency’s legal obligation to prevent
harassment in the workplace.4 We conclude that the Agency’s anti-harassment policy is not in
accord with the Commission’s Management Directive 715 (MD-715) because the Agency’s policy
statement does not effectively communicate EEO policies and procedures regarding harassment.
Because the preponderant evidence suggests this failure may have contributed to the unlawful
disclosure of Complainant’s protected EEO activity, as discussed above, we remind the Agency
of its legal obligations as set forth below and direct the Agency to comply with the remedial actions
listed in the Order herein.

Federal Agencies Are Legally Obligated to Establish and Maintain Effective Anti-Harassment
Programs

The Commission’s MD-715 is the policy guidance which the Commission provides to federal
agencies for their use in establishing and maintaining effective programs of equal employment
opportunity under Title VII and the Rehabilitation Act. MD-715 provides a roadmap for ensuring
that all employees and applicants for employment enjoy equality of opportunity in the federal
workplace regardless of race, sex, national origin, color, religion, disability, or reprisal for
engaging in prior protected EEO activity. Compliance with MD-715 is mandatory for all Executive
agencies. See MD-715 (“Responsibilities”) (“Agency Heads are responsible for the following: 1.
Ensuring compliance with this Directive and those implementing instructions issued by EEOC in
accordance with existing law and authority.”). See also 29 C.F.R. § 1614.103(b)(2) (“This part
applies to… Executive agencies as defined in 5 U.S.C. 105…”); and 29 C.F.R. § 1614.102(e)
(“Agency [EEO] programs shall comply with this part and the Management Directives and
Bulletins that the Commission issues.”) (emphasis added).

It is critical to understand the legal requirements with which agencies must comply in order to
avoid liability for harassment. Following the United States Supreme Court’s decisions in Faragher
v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998),
the Commission issued Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors in 1999, advising employers (both public and private sector) to
establish anti-harassment policies that contain, at a minimum, the following elements:

• A clear explanation of prohibited conduct, including a reference to all of the protected

bases;
• Assurance that employees who make claims of harassment or provide information related
to such claims will be protected against retaliation;
• A clearly described complaint process that provides accessible avenues for complainants;
• Assurance that to the extent possible, the employer will protect the confidentiality of the
individuals bringing harassment claims;

4
We note that in the Report of Investigation Complainant raised concerns about the lack of
information about non-sexual harassment being posted in her workplace.
 8 0120181068

• A complaint process that provides a prompt, thorough, and impartial investigation; and
• Assurance that the employer will take immediate and appropriate corrective action when it
determines that harassment has occurred.

The Commission subsequently issued MD-715 on October 1, 2003, which applied the minimum
standards and guidelines set forth in Faragher, supra and Ellerth, supra to the federal sector (i.e.,
federal agencies). See Model EEO Programs Must Have An Effective Anti-Harassment Program,
n. 8.5 Sections II (A) and (C) of MD-715 expressly require federal agencies to establish and
maintain effective affirmative programs of equal employment opportunity, which show
demonstrated commitment from agency leadership and ensure management and program
accountability. To this end, agencies must issue a written policy statement signed by the agency
head that expresses commitment to EEO and a workplace free of discriminatory harassment, and
the development of a comprehensive anti-harassment policy to prevent harassment on all protected
bases, including race, color, religion, sex (sexual or nonsexual), national origin, age, disability,
and reprisal. In this regard, a comprehensive anti-harassment policy that complies with MD-715
should: establish a separate procedure outside of the EEO complaint process; require a prompt
inquiry of all harassment allegations to prevent or eliminate conduct before it rises to the level of
unlawful harassment; establish a firewall between the EEO Director and the Anti-Harassment
Coordinator to avoid a conflict of interest; and ensure that the EEO Office informs the anti-
harassment program of all EEO counseling activity alleging harassment. See Instructions to
Federal Agencies for MD-715 Section I The Model EEO Program, Part III. Element C (B); see
also Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, Part V(C)(1)(“Policy and Complaint Procedure”).

It is simply not enough to create an anti-harassment policy. MD-715 expressly requires agencies
to effectively communicate EEO policies and procedures to all employees. Specifically, agencies
must inform their employees of their rights and responsibilities pursuant to the EEO process, anti-
harassment program, alternative dispute resolution (ADR) process, reasonable accommodation
program, and behaviors that could result in discipline. Methods of dissemination include training,
webinars, brochures, emails, or other types of written communication. Instructions to Federal
Agencies for MD-715 Section I The Model EEO Program, Part I. Element A (B).

We remind agencies that failure to effectively communicate anti-harassment policies not only
violates MD-715 but may also expose them to liability. In this regard, we note that the first prong
of the affirmative defense for harassment liability under Faragher, supra, and Ellerth, supra,
requires a showing by the employer that it undertook reasonable care to prevent and promptly
correct harassment.

5
MD-715 provides that “[t]he EEOC will also supplement this Directive on an as-needed basis
through the issuance of additional guidance and technical assistance.” See MD-715
(“Introduction”). Also, our report, Model EEO Programs Must Have An Effective Anti-
Harassment Program, is available at https://www.eeoc.gov/federal/model_eeo_programs.cfm.
 9 0120181068

Such reasonable care generally requires an employer to establish, disseminate, and enforce an anti-
harassment policy and complaint procedure and to take other reasonable steps to prevent and
correct harassment. We emphasize that a federal agency’s formal, internal EEO complaint process
does not, by itself, fulfill its obligation to exercise reasonable care. That process only addresses
complaints of violations of the federal EEO laws, while the Court, in Ellerth, made clear that an
employer should encourage employees “to report harassing conduct before it becomes severe or
pervasive.” Ellerth, 118 S. Ct. at 2270. Furthermore, the EEO process is designed to assess whether
the agency is liable for unlawful discrimination and does not necessarily fulfill the agency’s
obligation to undertake immediate and appropriate corrective action. See Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors at n. 57.

In this case, while we acknowledge that the Agency issued a Workplace Anti-Harassment Policy
Statement on May 1, 2018, outlining its obligation to prevent harassment, we conclude that this
policy fails to effectively communicate EEO policies and procedures in accordance with MD-715
because it does not: 1) clearly establish the complaint procedure, including the appropriate
channels for filing a complaint, that is separate from the EEO process; and 2) ensure confidentiality
to the extent possible.

Failure to Clearly Describe the Complaint Procedure

Regarding the first deficiency, we note that the Agency’s Workplace Anti-Harassment Policy
Statement states that “any Sailor, Marine, or civilian employee who encounters workplace
harassment should report the incident through appropriate channels.” As noted above, however,
MD-715 requires agencies to clearly inform their employees of their rights and responsibilities
pursuant to their anti-harassment programs. While we acknowledge that the Agency’s policy
statement informs employees of their right to “report the incident through appropriate channels,”
we find this rather vague statement to be inconsistent with MD-715 because it does not notify
employees of who they may approach to raise claims. As explained in our report, Model EEO
Programs Must Have An Effective Anti-Harassment Program, a model EEO program must clearly
describe the complaint process, particularly the agency officials who can receive harassment
claims. We further explained in our report that agencies, in establishing model EEO programs,
should consider designating at least one official outside an employee’s chain of command to accept
claims of harassment. Indeed, agencies should ideally provide multiple points of contact for the
employee, such that all claims need not go through the chain of command. In this case, it is clear
that the Agency did not designate anyone to be the “go to” person for reporting harassment, much
less multiple points of contact.6

6
We acknowledge that the ROI contains PowerPoint slides titled “EEO Essentials for Non-
Supervisory Personnel” that contains the contact information for the Agency’s EEO personnel.
ROI, pg. 000122. We emphasize, however, that MD-715 still requires agencies to establish and
maintain written anti-harassment policies consistent with MD-715.
 10 0120181068

We emphasize the importance of clearly delineating channels of communication for reporting

harassment, particularly in light of cases such as this where a complainant does not feel
comfortable approaching the very people who are responsible for the conduct they are reporting
or have reported in the past.7

Moreover, we note that agencies, as part of their legal obligation to establish procedures to prevent
all forms of discrimination, including harassment, must identify the investigation process,
including where to file the complaint, who will conduct the investigation, and who will make the
decision for corrective action. See Model EEO Programs Must Have An Effective Anti-
Harassment Program, Part I (C). Here, our review of the Agency’s Workplace Anti-Harassment
Policy Statement, shows that the Agency simply noted that its anti-harassment policy is “separate
and apart from any administrative, negotiated grievance, or statutory complaint process that covers
allegations of harassment, such as the Equal Employment Opportunity complaint process.” There
is no mention of where an employee must go to file a complaint, who will conduct the
investigation, and who will make the decision for corrective action. To fulfill its legal obligations
under MD-715, the Agency should develop complaint procedures that are separate from the EEO
process and clearly establish the complaint procedure in accordance with our guidelines. See
Model EEO Programs Must Have An Effective Anti-Harassment Program.

To establish a clearly-described complaint process, the policy must contain the time frames and
responsible officials for the intake, investigation, and decision-making stages of the process. Two
EEOC appellate decisions provide guidelines for time frames involving prompt investigations and
immediate corrective actions. For the investigation to be prompt, an EEOC decision found the
agency should have started the investigation within 10 days of receiving notice of a harassment
allegation. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120123232 (May
21, 2015); see also MD-715, Part G, Question C.2.a.5. As to immediate corrective actions, another
EEOC decision found the agency should have reached a decision and taken corrective action within
60 calendar days of receiving notice of the allegation. See Tammy S. v. Dep’t of Defense (Defense
Intelligence Agency), EEOC Appeal No. 0120084008 (June 6, 2014). As such, the Agency’s
policy must include time frames for the intake, investigation, and decision-making stages of the
anti-harassment complaint process.

Failure to Ensure Confidentiality to the Extent Possible

Finally, with regard to the second deficiency, we again remind the Agency that complainants are
generally entitled to confidentiality with regard to not only their EEO complaints, but their claims
of harassment as well. Indeed, the right to confidentiality is an important hallmark of a model EEO
program.

7
In her rebuttal to her supervisor’s affidavit, Complainant stated that she did not discuss the
contract employee’s comments with her supervisor because, for all she knew, her supervisor could
have been the person who discussed her prior protected EEO activity with the contract employee,
which led the contract employee to call her “trouble.” ROI, pg. 239.
 11 0120181068

As explained in our Enforcement Guidance: Vicarious Employer Liability for Unlawful

Harassment by Supervisors, an employer should clearly inform its employees that it will protect
the confidentiality of harassment allegations to the extent possible. See Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors,, Part
V(C)(1)(c)(“Confidentiality”). While we recognize that an employer cannot guarantee complete
confidentiality, since it cannot conduct an effective investigation without revealing certain
information to the alleged harasser and potential witnesses, information about the allegation of
harassment should be shared only with those who need to know about it. Records relating to
harassment complaints should be kept confidential on the same basis. Id. Federal agencies, as part
of their legal obligation to establish and maintain model EEO programs under MD-715, must
ensure the confidentiality of all harassment allegations, to the extent possible, and effectively
communicate to employees that their EEO activity will not be disclosed without their
authorization, except in limited circumstances as provided by law.

Our review of the Agency’s Workplace Anti-Harassment Policy Statement reveals serious
shortcomings with regard to this obligation. In this regard, we note that the Agency’s policy
statement makes no assurances that the Agency will protect the confidentiality of individuals
bringing harassment complaints to the fullest extent possible. In fact, the Agency’s policy
statement contains no mention of any right to confidentiality.

This is a clear failure to communicate, which undermines the effectiveness of the Agency’s anti-
harassment program, as managers may unknowingly violate the law and employees may be
discouraged from reporting harassment without assurances of confidentiality. MD-715 expressly
requires management and program accountability, which involves putting employees and
management officials on notice of their rights and responsibilities. As was demonstrated in this
case where a Complainant’s supervisor disclosed her EEO activity to someone without a need to
know, it is critically important that an agency’s anti-harassment policy inform its employees of the
legal obligation to ensure the confidentiality of Complainant’s protected EEO activity, including
harassment allegations.

Summary of Policy Deficiencies and Corrective Action

The Commission finds that the Agency’s Workplace Anti-Harassment Policy Statement does not
meet the standards as required by MD 715, our Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors and our Model EEO Programs Must Have An
Effective Anti-Harassment Program guidance. In particular, the Agency’s policy does not set out
with specificity the complaint procedures by which an employee may raise a claim of harassment,
including time frames for the processing of the harassment allegations as well as naming officials
who can receive such claims. Second, the Agency’s policy does not provide notice of the requisite
confidentiality accorded to the filing of claims of harassment.
 12 0120181068

Pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the Commission

may order an agency to provide corrective, curative or preventive actions to ensure that violations
of the law similar to those found will not recur. Here, as discussed above, the Agency’s anti-
harassment policy does not comply with the Commission’s MD-715 policy guidance because it
does not clearly establish the complaint procedure, including the appropriate channels for filing a
complaint, and ensure confidentiality to the extent possible. We would be remiss to take no action
to correct the Agency’s clear violations of MD-715. As the Agency is not in compliance with MD-
715 regarding its anti-harassment policy, under circumstances that are capable of being repeated,
we order the Agency to seek technical assistance from the Commission’s Office of Federal
Operations, Federal Sector Programs, and to correct the deficiencies in the policy identified above.
This will ensure that the agency is taking the necessary preventive steps to avoid liability for
harassment in the future.

CONCLUSION

Based on a thorough review of the record, we MODIFY the Agency’s final decision as set forth
herein and REMAND the matter to the Agency for further processing in accordance with the
ORDER below.

ORDER8

1. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
undertake a supplemental investigation concerning Complainant’s entitlement to
compensatory damages and determine the amount of compensatory damages due
Complainant in a final decision with appeal rights to the Commission.

The Agency shall pay this amount to Complainant within thirty (30) calendar days of the
date of the determination of the amount of compensatory damages. If there is a dispute
regarding the exact amount of compensatory damages, the Agency shall issue a check to
Complainant for the undisputed amount. Complainant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification or enforcement must be
filed with the Compliance Officer, at the address referenced in the statement entitled
“Implementation of the Commission’s Decision.”

2. Within thirty (30) calendar days of the date of this decision, the appropriate Agency EEO
component shall request technical assistance from the EEOC, Office of Federal Operations,
Federal Sector Programs (FSP), on revising its anti-harassment policy to conform to the
standards set forth in MD-715.

8
Because the record reflects that the responsible management official (Complainant’s supervisor)
is an active duty military officer, we cannot order the Agency to provide training and consider
disciplinary action, as we have no authority over active duty military personnel.
 13 0120181068

Within sixty (60) calendar days of the date this decision, the Agency shall revise its anti-
harassment policy to FSP’s satisfaction and the Agency shall promptly reissue a new anti-
harassment policy statement signed by the agency head.

To fulfill its legal obligation to effectively communicate EEO policies and procedures to
all employees, the Agency shall disseminate its revised anti-harassment policy statement
within thirty (30) calendar days of issuing the revised policy statement. Methods of
dissemination include training, webinars, brochures, emails, or other types of written
communication. Instructions to Federal Agencies for MD-715 Section I The Model EEO
Program, Part I. Element A (B).

3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post
a notice in accordance with the paragraph entitled “Posting Order.”

POSTING ORDER (G0617)

The Agency is ordered to post at its Strategic Systems Programs Headquarters in Washington,
D.C., 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 was issued, 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 as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY’S FEES (H1019)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),

she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this
decision. 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 (K0719)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored.
 14 0120181068

Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report
in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s
final report must contain supporting documentation when previously not uploaded, and the Agency
must send a copy of all submissions to the Complainant and his/her representative.

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.

Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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.
 15 0120181068

The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof
of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in the complaint the person
who is the official Agency head or department head, identifying that person by his or her full name
and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work. Filing a civil action will terminate the administrative processing of your
complaint.

RIGHT TO REQUEST COUNSEL (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

February 14, 2020

Date