James M. Hairston, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency. Appeal No. 0120071308 Agency No. ED-2006-06-00 DECISION On January 10, 2007, complainant filed an appeal from the agency's December 14, 2006, final decision concerning his 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the agency's final decision. ISSUE PRESENTED The issue presented is whether complainant was discriminated against on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on May 25, 2005, he received a "successful" performance evaluation and rating. BACKGROUND At the time of events giving rise to this complaint, complainant worked as an EEO Specialist at the agency's headquarters facility in Washington, D.C. In this role, complainant was tasked with reviewing the agency's EEO program. In 2002, complainant recommended changes to the program, including that the EEO Director report directly to the agency head to ensure compliance with Commission directives. Subsequently, complainant's supervisor (S-1) informed him that this recommendation upset a member of senior management. The agency failed to enact complainant's proposed reorganization and in his 2003 review, he again recommended that the EEO Director report to the agency head. In 2004, complainant filed a whistle-blower report, detailing his perception of the agency's noncompliance with Commission regulations. Shortly thereafter, the Commission audited the agency for compliance with EEO regulations, and complainant withdrew his whistle-blower complaint. Complainant's coworker (C-1) alleges that in July 2004, she overheard S-1 and complainant's second-line supervisor (S-2) discussing complainant and calling him a "troublemaker," and suggesting that complainant be "dealt with." In August 2004, complainant was detailed to another department while on vacation.1 In May 2005, S-1 evaluated complainant's performance and rated him "successful," with regard to his policy work. On November 14, 2005, complainant filed a formal EEO complaint alleging that he was discriminated against on the bases of sex (male) and reprisal for prior protected EEO activity when he was rated "successful" and not "highly successful" in the appraisal. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), concluding that complainant failed to prove that he was subjected to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, complainant contends that his request for a reassignment to another department has been granted, so he no longer wishes to pursue the issue of reassignment in this complaint. Nevertheless, complainant maintains that, contrary to the agency's finding of no discrimination, he has established a prima facie case of reprisal because he demonstrated that as a result of his complaints about the agency not complying with EEOC procedures, he suffered adverse consequences which included a lowered performance appraisal, failure to receive a performance award, and reassignment to a position that was designated below his grade level. Complainant further contends that, contrary to the agency's assertion, agency employees were affected by the agency not being in compliance with the EEOC Management Directives 110 and 715. He contends that EEO services to agency employees were affected by the fact that the EEO Director was included in the management structure. Further, he maintains that the agency allowed the Office of General Counsel to interfere into EEO matters while representing the agency in EEO complaints. Complainant contends that his protest against these practices constituted protected activity. Finally, complainant asserts that the agency's articulated nondiscriminatory reasons for its actions are pretext. He contends that while the agency indicated that he had difficulty in meeting deadlines, the evidence shows that he received ratings of outstanding and highly successful in these areas. He also maintains that the agency's assertion that complainant's supervisor gave complainant a mediocre rating because he believed that no one on his staff should be rated higher than he himself was rated is false. Complainant asserts that the evidence shows that a number of female employees received higher ratings than the supervisor. Complainant maintains that these facts confirm that the agency's articulated reasons are pretext for discrimination. The agency offers no contentions on appeal. 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 EEOC Management Directive 110, Chapter 9, § VI.A. (November 9, 1999). (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"). 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). In the instant case, the agency argues that complainant failed to establish a prima facie case of reprisal discrimination because he was engaged in whistle-blowing. Final Agency Decision at 5 (citing Adeniji v. Administration for Children Servs., NYC, 43 F.Supp.2d 407, 421 (S.D.N.Y. 1999)). In Adeniji, the court denied a municipal government employee relief under Title VII for whistle blowing about government waste. We easily distinguish between that situation and complainant's status as a federal employee concerned with the administration and structure of EEO programs at his agency. As such, we find that complainant was engaged in protected activity. Moreover, the agency was aware of complainant's EEO activity, which occurred close in time with an adverse performance rating. Therefore, we find that complainant satisfied his burden of establishing a prima facie case of reprisal. The agency responded with legitimate explanations for its conduct; namely, that complainant's detail was an advancement opportunity and that his performance rating was justified by his job performance. We find, however, that complainant has proved, by a preponderance of the evidence, that these explanations are pretext for discrimination. Complainant asserts that the 2005 appraisal was the first performance review in several years for which he received a rating lower than "highly successful." The agency claims that complainant's alleged difficulty in meeting deadlines justified his "successful" rating with regard to organizational priorities. In the same review, however, he received a "highly successful" rating for customer service-a category that specifically evaluates whether an employee met essential deadlines and commitments. Further, a member of the agency's senior management stated that S-1 received a performance rating of "successful." She asserted that S-1 claimed that none of his subordinates deserved higher performance ratings than he did. However, the evidence shows that of S-1's five subordinates, only complainant received a performance rating lower than "highly successful." Moreover, this witness also believed that complainant's narrative evaluation corresponded with a higher rating than "successful." In light of the "troublemaker" comment overheard by C-1, and its proximity to the appraisal at issue, we find that a preponderance of the evidence supports the conclusion that the agency's explanation is pretextual. As such, complainant has carried his burden and proven that he was subjected to reprisal discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the agency's final decision and remand for further proceedings in accordance with the orders below. ORDER The agency is ordered to take the following remedial action: 1. Within ninety (90) calendar days of the date this decision becomes final, the agency shall raise the performance rating in question to "Highly Successful." 2. Within ninety (90) calendar days of the date this decision becomes final, the agency shall provide EEO training to the supervisors involved in this matter focusing on the agency's obligation under Title VII to prevent retaliation for protected EEO activities. 3. The agency shall consider taking disciplinary action against the supervisors responsible for violating Title VII. The agency shall report its decision to the Commission. 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. 4. Within fifteen (15) calendar days of the date this decision becomes final, the agency shall give complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)), in support of his claim for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. The agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the agency receives complainant's claim for compensatory damages. Thereafter, the agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 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 verifying that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Headquarters, Washington, D.C., facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 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 (K1208) 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 (M1208) 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0408) 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 (Z1008) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations April 15, 2010 Date 1 Complainant initially claimed that this reassignment constituted discrimination, but subsequently resolved the issue with the agency and on appeal withdrew this claim. Nevertheless, such facts provide essential background information when analyzing the overall circumstances of this complaint. ?? ?? ?? ?? 2 0120071308 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O Box 77960 Washington, DC 20013 2 0120071308