Gregg B., Complainant v. Jeh C. Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120113331 Agency No. HS-ICE-17875-2010 DECISION Complainant timely filed an appeal from the Agency's 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUES PRESENTED The issue presented is whether the Agency properly found that Complainant failed to prove that the Agency subjected him to discrimination and harassment on the bases of race, color, sex, and reprisal for prior EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a probationary Special Agent (SA), GS-9, in the Cyber Crimes Group of the Agency's Immigration and Customs Enforcement (ICE) Office of Investigations in San Diego, California. According to the Report of Investigation (ROI), "[t]he Cyber Crimes Group's main function is to combat the sexual exploitation of children via the internet." ROI at 30. Complainant began working in the Cyber Crimes Group on December 14, 2009. He contacted an EEO Counselor on July 28, 2010, and had an initial interview with the EEO Counselor on September 9, 2010. On October 7, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to sexual and non-sexual harassment on the bases of race (African-American with European ancestry), sex (male), and color (Brown) when:1 1. On December 4, 2009, he was advised that he would be subjected to abuse and hazing; 2. On December 21, 2009, two co-workers determined that he should wear a degrading baseball cap; 3. On January 20, 2010, two co-workers determined that he should again wear a degrading baseball cap while he hand-delivered a memorandum to the Assistant Special Agent in Charge (ASAC); 4. On January 28, 2010, a co-worker sent out a text message in which he referred to Complainant as "P [penis] Cakes"; 5. On July 12, 2010, a co-worker introduced him to another person as "P Cakes"; 6. On July 12, 2010, a co-worker made a sexually explicit comment and asked him a sexually explicit question; 7. On July 12, 2010, he was forced to pose for a photograph holding a poster that read, "On Probation"; 8. On July 12, 2010, a co-worker told a story and mocked "inner city Blacks"; 9. On July 12, 2010, a co-worker made a sexually explicit and vulgar comment that degraded women; 10. On July 12, 2010, a co-worker commented, "Are you saying all black computers look the same?"; 11. On July 23, 2010, a co-worker advised a third-party co-worker that they coined the nickname "Fro-Hawk" for Complainant and designed and posted a poster of "Fro-Hawk"; 12. On July 27, 2010, co-workers referred to the cane that Complainant used after undergoing knee surgery as his "pimp cane," and they called him "hoplet" and "gimpy." Another co-worker "frequently" took his crutches; 13. On August 8, 2010, a co-worker commented, "[A]ll light skin [sic] black men look the same"; 14. On August 20, 2010, a co-worker asked if Complainant was "checking out the girls"; 15. Another co-worker responded to the question by stating, "I only check out the ones with the titties"; 16. On September 1, 2010, a co-worker yelled, "Dominoes Bitches"; 17. Beginning on September 3, 2010, a co-worker began referring to Complainant as "donkey"; 18. On September 3, 2010, a co-worker commented about being hit by a car that was driven by an Asian woman. He also referenced the "Filipino Mafia"; 19. On unspecified occasions, a co-worker referred to Complainant as the "fucking new guy" or "FNG" and "dingleberry"; and 20. On unspecified occasions, a co-worker denigrated Complainant with respect to his masculinity. She also said "Fuck you" to Complainant on one occasion. Subsequently, on December 8, 2010, Complainant amended his complaint to allege that the Agency subjected him to reprisal for prior protected activity when: 21. On October 28, 2010, he received an unduly low annual performance evaluation; 22. On November 4, 2010, he overheard a co-worker refer to or call someone a "bitch" during the course of a telephone conversation; 23. On November 16, 2010, he was precluded from participating in the execution of a search warrant; and 23. On November 18, 2010, he felt compelled to request reassignment from the Cyber Crimes Investigations Unit, and his request was granted on December 1, 2010. Allegation 1 Complainant told the EEO investigator that, on his first day in the office, two Special Agents (SA-1, SA-2) told him that he would be subjected to abuse and hazing and that he should not complain about it because he "was lucky to even have a desk." According to Complainant, SA-1 and SA-2 insulted his intelligence and told him to "shut up." Complainant did not respond to their statements. Id. Exh. 5 at 2. SA-1 told the EEO Investigator that she "did not participate in a conversation with [Complainant and SA-2] regarding this subject." Id. Exh. 16 at 2. SA-2 recalled having a conversation with Complainant and stated that he attempted to explain to Complainant that, as a new employee, Complainant would be asked to perform tasks that new agents typically perform. Id. Exh. 6 at 3. He believed that his comment about the desk was a reference to his experience as a new agent, when he did not have a desk for almost two months. Id. SA-2 denied telling Complainant that he would be subjected to hazing and abuse. Id. Allegations 2 and 3 Complainant stated that, on December 21, 2009, SA-1 and SA-2 decided that Complainant should wear a degrading hat for 30 minutes because he had responded to the wrong port during drug duty the previous weekend. The hat, which Complainant called "the Jackass Hat," was a blue baseball cap with the word "POLICE" on it in yellow lettering and two large "jackass" ears attached to its sides. He stated that, when he asked SA-1 and SA-2 if they were serious, SA-1 said that she would track the amount of time that he wore the hat and SA-2 explained the importance of being a team player and listening to the senior agents. According to Complainant, SA-2 "insinuated" that an agent whose employment recently had been terminated did not get along with or listen to other members of the group and had experienced negative consequences as a result. Complainant told the EEO Investigator that he interpreted SA-2's statement as a threat of employment retaliation if he did not wear the hat. Complainant "expressed [his] discontent" to two agents who sat near him (SA-3, SA-4). He did not know whether other people were required to wear the hat. Id. Exh. 5 at 2-3. Complainant wore the hat again on January 20 or 22, 2010. He asserted that the Group Supervisor (GS), who was his first-level supervisor, a special agent who was his Field Training Officer (FTO), and SA-1 decided that he needed to wear the hat because he had not responded promptly to a message that GS left for him over the weekend. According to Complainant, FTO told Complainant to wear the hat while he discussed the message with GS, and GS then told Complainant to deliver a memorandum to two Assistant Special Agents in Charge, including his second-level supervisor (ASAC). Complainant asserted that he did not wear the hat voluntarily or enjoy wearing it, that FTO and GS gave him a direct order to wear the hat, and that he feared retaliation if he disobeyed their order. Id. at 3-4. GS told the EEO Investigator that agents in the group created the hat years earlier and used it "to poke fun at each other" when people made harmless mistakes. He stated that several people, including himself, had worn the hat. He also stated that Complainant agreed to wear the hat, was smiling when GS gave him a form to deliver to ASAC, and was smiling and wearing the hat when he left GS's office. He denied that he required Complainant to deliver the document while wearing the hat. According to GS, Complainant never was forced to wear the hat, never seemed to be upset about wearing it, and "never communicated any sort of ill will or hurt feelings to" GS. GS stated, "If for one second I thought this act of fun and light heartedness would be characterized as an act of hostility or racism, I would have never allowed it." Noting that the agents in the Cyber Crimes Unit "volunteer to expose themselves to horrors that no human being should ever have to witness," GS stated that agents use humor "to wash out some of these horrors." Id. Exh. 15 at 2-3. ASAC stated that Complainant "was smiling at [her] from ear to ear" when he wore the hat to her office. She did not laugh at him because she thought "he looked very odd," and she did not ask him about the hat because she "did not want to encourage his comical ways." After Complainant left her office, ASAC called GS and told him how odd Complainant looked. It was the first time that she saw someone wearing the hat, and she viewed it "as a harmless personal choice." Id. Exh. 12 at 2. SA-1 and SA-2 stated that the hat was called "Donkey Ears" and that group members, including senior agents and GS, were required to wear the hat when they made a mistake or did something foolish. Id. Exhs. 6 at 4, 16 at 2. SA-1 wore the hat once, and SA-2 wore it "a couple of times." Id. SA-2 estimated that group members wore the hat for a total of approximately ten times. Id. Exh. 6 at 4. SA-1 stated that Complainant never expressed concern about the hat to her. Id. Exh. 16 at 2. SA-3, who has not worn the hat, recalled that he saw Complainant wearing the hat on December 21, 2009, and that Complainant told him why he was wearing it. Although SA-3 did not witness Complainant wearing the hat on January 20, 2010, Complainant told him about it. SA-4 stated that FTO, SA-1, and SA-2 forced Complainant to wear the hat on December 21, 2009. According to SA-4, either SA-1 or SA-2 told Complainant that he should do what they say or face the same consequences that a former employee experienced. SA-4 interpreted that to be a reference to an individual who, SA-4 believed, was fired for not going along with SA-1's hazing practices. SA-4 stated that he heard GS tell FTO that GS had called ASAC to tell her to notice the hat that Complainant was wearing when Complainant went to her office. SA-4 also stated that he saw pictures of GS and another Special Agent, both of whom are African American, wearing the hat. He refused to wear the hat after FTO put donkey ears on it because he "found it to be inappropriate and a racially charged item." Id. Exh. 14 at 2-3. Allegations 4 and 5 Complainant told the EEO Investigator that, in his first month in the office, SA-1 and SA-2 gave him the nickname "penis cakes" or "p-cakes." He interpreted the nickname to be a "reference for [his] supposed desire for penises." Complainant asserted that, on January 28, 2010, SA-2 sent an e-mail to co-workers stating, "Today is p-cakes birthday. Are we doing anything humiliating or funny?"2 Complainant also asserted that SA-2 used degrading names, including "p-cakes," when he introduced Complainant to a new Special Agent (SA-5) on July 12, 2010. Complainant did not respond to the use of the nickname on July 12, 2010. Id. Exh. 5 at 4-5. SA-2 acknowledged that he sent an e-mail to the group on Complainant's birthday asking if they "should do something funny." He denied that he suggested doing anything humiliating and also denied that he used the term "p-cakes." According to SA-2, the nickname "p-cakes" was first used in December 2009 when GS took the group to breakfast and Complainant talked about eating pancakes. After another agent objected to Complainant's "constant pancake talk," Complainant stated that he wanted to eat something that began with the letter "p" and ended in "cakes." Either SA-2 or the other agent then said that Complainant wanted to eat "penis cakes." According to SA-2, he, the other agent, and Complainant laughed. SA-2 stated that he introduced Complainant to SA-5 by Complainant's name and denied that he introduced Complainant as "p-cakes." Id. Exh. 6 at 4-5. SA-5 told the EEO Investigator that she believed the term "p-cakes" was used and that SA-2 explained that the term was a joke about Complainant ordering pancakes at breakfast. Id. Exh. 9 at 2. A Special Agent who served as the Acting Group Supervisor (AGS) when GS was away from the office told the EEO Investigator that he received SA-2's e-mail, that Complainant quoted it accurately, that "p-cakes" means "penis cakes," that the nickname arose after SA-2 heard Complainant talking about pancakes, and that SA-2 called Complainant "p-cakes" an average of two or three times per week. Id. Exh. 10 at 2. Allegations 6, 9, 14, 15, 16, and 22 Complainant stated that, on July 12, 2010, SA-2 asked if Complainant "had any dick to give to" SA-1 and, on July 21, 2010, FTO ogled women walking on the sidewalk and told a sexually inappropriate joke. Complainant did not respond to their comments. On August 20, 2010, while Complainant, FTO, SA-4, and a female agent from another agency were returning from lunch, the female agent asked the others if they "'were checking out the girls on the street." According to Complainant, he responded, "No" and FTO responded, "I only check out the ones with titties." Complainant further asserted that SA-2 yelled, "Dominoes Bitches" during the execution of a search warrant on September 2, 2010, and that FTO called someone a "bitch" over the telephone on November 4, 2010. Complainant stated that he reported FTO's November 2010 comment to ASAC and AGS. Id. Exh. 5 at 5-6, 8-9, 18. ASAC asserted that Complainant complained about the telephone comment "days" after it occurred, on a day when FTO was on leave. She stated that the complaint "was taken seriously" and that FTO was informed of the complaint when he returned to work on November 15, 2010. Id. Exh. 12 at 5. FTO acknowledged that he told Complainant a sexually explicit joke on July 21, 2010, and made a sexual comment on August 20, 2010, but asserted that Complainant made the remarks seem more vulgar than they were. With respect to the August comment, FTO stated, "My actual quote was, 'I only notice the ones with boobs.' I would never use the term 'titties.'" He stated that he said the word "bitch" under his breath after he ended a private telephone conversation on November 4, 2010, but did not direct the comment to anyone. He also stated that Complainant waited until a week after the telephone call to complain about it and that Complainant did so while FTO was out of the office attending a funeral service for a family member. FTO asserted that Complainant invited him to lunch regularly, never appeared to be uncomfortable around him, and never reported being offended by sexually explicit jokes or comments. Noting the nature of the work that the group performed, FTO stated that "[a]ny joking around [was] meant to lighten the mood." Id. Exh. 13 at 2, 3, 5-7. SA-2 denied making the July 12, 2010, statement that Complainant attributed to him. He stated that "Dominoes Bitches" was a movie quote, that he made the comment because someone was successful or found evidence during the execution of a search warrant, and that he did not direct the comment at anyone. Id. Exh. 6 at 5. Allegation 7 Complainant stated that, on July 12, 2010, SA-1 used GS's camera to photograph group members making obscene gestures. Complainant refused SA-1's request to pose for a picture while making a gesture such as raising his middle finger or grabbing his genitalia. According to Complainant, SA-2 then created a poster saying "ON PROBATION," and Complainant was told to hold the poster while being photographed. SA-2 stated that someone else asked Complainant to be in a picture with a paper saying "on probation." He also stated that he told Complainant that it would be funny because Complainant was on probation but he did not force Complainant to be in the picture. Id. Exh. 6 at 5. Allegations 8, 10, 11, and 13 Complainant told the EEO Investigator that, on July 21, 2010, FTO "stated that one of his least favorable memories of the Navy was 'watching inner city Blacks, who had never seen more water than a bathtub,' attempt to jump into a pool for drown proofing." Complainant asserted that FTO imitated the individuals' voices and said, "I [sic] not jumping in that." Complainant did not respond to the comment. Complainant further asserted that, when FTO and SA-2 were discussing computers on July 21, 2010, SA-2 stated that two computers looked identical and FTO replied, "Are you saying all black computers look the same?" Complainant stated that he looked at FTO in exasperation and that FTO said, "What," pointed to SA-2 and stated, "He said it," and told Complainant that he was kidding. In addition, Complainant asserted that, on August 5, 2010, he informed FTO that GS sent him things intended for SA-2. According to Complainant, FTO replied that it was because "all light skin [sic] black men look the same." Complainant did not respond to the remark. Id. Exh. 5 at 6-8. Complainant alleged that FTO and SA-2 often referred to him as "Fro-Hawk," a nickname that SA-2 created and that Complainant interpreted to be a reference to his ethnic hair style and texture. According to Complainant, FTO designed and printed a computer-generated image, named it "Fro-Hawk," and placed the poster on a cabinet above Complainant's head. Id. at 7. SA-2 acknowledged that he and FTO created the "Fro-Hawk" term. He estimated that he used the term five times. Id. Exh. 6 at 5. FTO stated that he created a "Fro-Hawk" picture on a sheet of paper after Complainant did a "great job" finding material on an encrypted website. FTO based the picture on an image of a video-game hero, added a Mohawk because Complainant combs his short hair into a "mini Mohawk," and named the picture ""Fro-Hawk, The Internet Blood Hound, Sniffing Out CP Wherever It May Be In The World." He stated that he created the picture to show Complainant that he was proud of the work Complainant was doing and that it was not negative or spiteful. FTO denied making the computer and light-skinned comments. Id. Exh. 13 at 3-4. Although he could not recall telling Complainant a story about drown-proof training, FTO stated that he had told the story to others. He further stated that he has "never used any insultingly stereotypical voice or mocked African-Americans by using improper grammar when telling the story." On the day of drown-proof training, FTO noticed "a few African-American recruits" who were terrified at the pool. FTO asserted that the point of the story had nothing to do with skin color but, instead, was about why someone who did not know how to swim would join the Navy. Id. at 2. Allegation 12 Complainant stated that he used crutches and a cane for a few months after he had knee surgery. He alleged that, during a training course on July 27, 2010, co-workers referred to the cane as a "pimp cane" approximately twelve times. He also alleged that FTO called him "gimpy," that SA-2 called him "hoplet," and that SA-1 took his crutches approximately six times and told him that she was toughening him up when she returned them. Complainant did not respond to their actions and comments. Id. Exh. 5 at 8. SA-1 stated that she once took Complainant's crutches as she walked past his desk, walked four or five steps, returned the crutches, patted Complainant's arm, and told him that she was kidding. According to SA-1, Complainant did not seem upset. SA-1 denied telling Complainant that taking the crutches would make him tougher. Id. Exh. 16 at 3. SA-2, who did not recall referring to Complainant's crutch as a "pimp cane," told the EEO Investigator that he used the term "hobblet" two or three times. Id. Exh. 6 at 5. FTO stated that he referred to Complainant as "gimpy" "a couple of" times but not in a malicious or degrading way. Id. Exh. 13 at 3. He denied calling Complainant's cane a "pimp cane" and asserted that SA-4 used the term. Id. SA-3 believed that FTO or SA-2 referred to Complainant's cane as a "pimp cane" approximately five times and that FTO referred to Complainant as "gimpy" approximately five times. Id. Exh. 8 at 3. SA-4 estimated that FTO and SA-2 used the terms "pimp cane," "gimpy," and "hoplet" more than fifty times. Id. Exh. 14 at 4-5. He saw SA-1 take Complainant's crutches once. Id. at 5. SA-5 heard FTO refer to Complainant as "gimpy" two or three times. Id. Exh. 9 at 3. Allegations 17 and 19 Complainant asserted that SA-2 started calling him "donkey" on September 3, 2010, and that SA-2 called him "donkey" more than once. He also asserted that FTO called him "fucking new guy" or "FNG" "dozens" of times and that FTO also called him "dingleberry." Id. Exh. 5 at 10. SA-2 stated that he used the term "donkey" with Complainant two or three times. Id. Exh. 6 at 5. FTO denied that he called Complainant "fucking new guy" or "dingleberry." Id. Exh. 13 at 5. He acknowledged that he referred to Complainant as "FNG" "on numerous occasions" but asserted that the term was "used for all new agents in the Cyber group." Id. SA-3 estimated that he heard Complainant referred to as "fucking new guy," "FNG," or "dingleberry" 10-15 times. Id. Exh. 8 at 3. SA-4 estimated that FTO called Complainant "FNG" more than fifty times. Id. Exh. 14 at 5. SA-5 heard SA-2 call Complainant "donkey" once or twice. Allegation 18 Complainant alleged that, on September 3, 2010, FTO told a story about being hit by a car driven by an Asian woman. He also alleged that, during a telephone call on that date, FTO told someone not to bring evidence to a different organization's vault because it was run by the "Filipino Mafia." Complainant did not respond to the comments. Id. Exh. 5 at 9-10. FTO stated that, while a group of agents were discussing an automobile accident, he told a story about being hit by a car. He asserted that Complainant was trying to portray him in an unfavorable light by "[c]onnecting that story to a completely unrelated term used on a different day." According to FTO, the term "Filipino Mafia" referred to a group of officers who work at an evidence vault and who refer to themselves by that term. He stated that he used the term "in the context of stating 'the Filipino Mafia is out to lunch, so you'll need to go to the vault after 1:00.'" Id. Exh. 13 at 4. Allegation 20 Complainant alleged that SA-1 frequently made degrading comments about his masculinity. He asserted that, before some weekends, SA-1 would ask if he was planning to drink Pinot Grigio, would state that Pinot Grigio is "gay," and would disparage him for drinking it . He also asserted that, during a July 21, 2010, conversation about SA-1's planed trip to Australia, Complainant asked if she would bring back a kangaroo and SA-2 stated, "That's gay. What you need is a bush woman." Complainant, who did not respond to the statements, alleged that he had "been disparaged as gay or homosexual . . . at least a half-dozen" times. He also alleged that AGS told him that SA-1 described his kite-flying actions during a picnic as "gay." Complainant further alleged that SA-1 yelled, "Fuck you" at him in Spring 2010 after he noted that she had used a curse word. Id. Exh. 5 at 10-11. SA-1 told the EEO Investigator that she "did not 'frequently' denigrate [Complainant] because of his supposed lack of masculinity." She denied that she ever told him that his drinking Pinot Grigio was evidence of homosexuality or ever said, "Fuck you" to him. Id. Exh. 16 at 3. AGS told the EEO Investigator that it was "fairly common" for GS and SA-1 to say that a man was drinking Pinot Grigio when they believed that he was not being masculine. He stated that SA-1 referred to Complainant's kite flying during an office picnic as the new Pinot Grigio. Complainant was not present when SA-1 made the comment. Id. Exh. 10 at 3. Allegation 21 On October 28, 2010, Complainant received an annual performance appraisal in which GS gave him an overall rating of "Achieved Expectations." Id. Exh. 19 at 1. In a November 5, 2010, e-mail to GS and AGS, Complainant submitted a rebuttal to the appraisal. He asserted that the rating did not accurately reflect his performance and that it constituted retaliation for his EEO complaint and further harassment. Id. at 2-3. He also asserted that, although his grade-level was the lowest of the group, his performance was equal to that of journeyman-level agents. Complainant summarized his accomplishments and argued that his performance "exceeded expectations and achieved excellence for an employee at a GS-7 or GS-9 level." Id. at 3-8. In a November 12, 2010, memorandum responding to Complainant's rebuttal, GS agreed to increase Complainant's rating. Id. at 11. He raised Complainant's scores in two areas, and Complainant received an overall rating of "Exceeded Expectations." Id. at 11, 13. Noting that Complainant had alleged retaliation and discrimination, GS stated that he based the rating solely on Complainant's performance. GS further stated, "I find this accusation personally offensive and extremely unprofessional." Id. at 12. Complainant asserted that GS raised the appraisal ratings of two agents during telephone calls with them but refused to do so with Complainant and required him to submit a written rebuttal. Id. Exh. 5 at 12. He stated that he never received a justification for the rating or any guidance for improving his scores. Complainant argued that he received a lower score than his co-workers received, in reprisal for filing an EEO complaint. Id. at 18. GS told the EEO Investigator that Complainant "was doing a good job" and that the appraisal reflected Complainant's performance. According to GS, "Achieved Expectations" meant that Complainant "was meeting all of the required criteria." He noted that, at the time of the appraisal, Complainant had "just begun his career with [the Agency] and his performance was heading in the right direction." GS stated that he rated agents on case work, production, special assignments, performance in a team setting, collateral duties, and performing other duties such as acting group supervisor or field training officer. According to GS, Complainant "did not have all of the same responsibilities" that other agents had. GS stated that he raised the ratings of two agents after discussing their appraisals with them. He also stated that he discussed the rating with Complainant over the telephone and offered Complainant the same opportunity to discuss the rating that he offered to other agents. Id. Exh. 15 at 3-4. ASAC, who was the reviewing official, stated that first-year agents rarely have the necessary skills and knowledge for ratings higher than "Achieved Expectations." In response to the EEO Investigator's question about whether the appraisal accurately reflected Complainant's performance, ASAC replied that she was not in a position to rate Complainant's performance because she was not his first-level supervisor. She stated that she reviewed all of the appraisals to ensure that they were completed properly but did not discuss specific appraisals with GS. ASAC also stated that there were two other probationary agents in the group, that one agent received a rating of "Achieved Expectations," and that the other agent received a rating of "Exceeded Expectations." Id. Exh. 12 at 3-4. The record establishes that two Special Agents in the Cyber Crimes Group received appraisal ratings of "Achieved Excellence"; six Special Agents, including Complainant, received "Exceeded Expectations" ratings; and two Special Agents received "Achieved Expectations" ratings. Complainant was the only group member who engaged in prior EEO activity. Id. Exh. 24. Allegation 23 On November 15, 2010, SA-1 sent an e-mail to members of the Cyber Crimes Group requesting assistance in the execution of a search warrant on November 17, 2010.3 Complainant did not participate in the warrant operation. Complainant alleged that, on November 16, 2010, AGS told him that he could not participate in the execution of a search warrant scheduled for the next day. According to Complainant, AGS stated that SA-1 and FTO told ASAC that they were uncomfortable with having Complainant participate in the warrant operation. Complainant told the EEO Investigator that he met with AGS and SA-1 about the matter and that, during the meeting, he accused SA-1 of discriminating against him. Complainant asserted that he normally participated in search-warrant operations because such participation was an assigned duty. He also asserted that, during the year that he spent in the Cyber Crimes Group, no other agent was excluded from a group search-warrant operation. Id. Exh. 5 at 19, 21. According to Complainant, he sent a November 16, 2010, e-mail to AGS and ASAC asking why he could not participate in the warrant operation and alleging that the decision to exclude him was retaliatory. When ASAC did not respond, Complainant sent another November 16 e-mail to AGS asserting that he told SA-1 "yesterday" that he was available to participate in the warrant operation, that he was the only available agent who was not participating in the operation, and that ASAC had told him to report discriminatory incidents to his supervisor and ASAC. AGS sent Complainant a November 18, 2010, e-mail stating that ASAC asked AGS and SA-1 to prepare memoranda concerning the November 16, 2010, meeting. AGS asked Complainant to submit a statement concerning the search-warrant matter. Complainant replied that he participated in a task-force operation on November 15, 2010, returned to the office at approximately 3:00 p.m., read SA-1's e-mail, and told SA-1 that he was available. He told the EEO Investigator that AGS supported his participation in the warrant operation but ASAC decided against it because SA-1 and FTO were not comfortable with his participation.4 Id. at 19-23. ASAC replied to Complainant's second November 16, 2010, e-mail on November 29, 2010. She noted that, when Complainant informed her and GS of his EEO complaint, she told him that she had an open-door policy concerning matters that Complainant did not feel comfortable raising with FTO or GS. She stated, however, that concerns about nonparticipation in one search-warrant operation should be raised at the GS level rather than with a second-level manager. ASAC also stated that Complainant should contact the Agency's EEO hotline if he felt uncomfortable contacting someone in his chain of command about issues that he could not resolve himself or if he had any other discrimination allegations. Id. Exh. 20 at 2. SA-1 stated that, at 9:30 a.m. on November 15, 2010, she sent an e-mail to all Cyber Crimes Group members requesting assistance in the execution of a search warrant the next day. By the time that Complainant responded, at 4:00 p.m., SA-1 had already received commitments for assistance from agents in another group and had given a list of the participants to ASAC. SA-1 explained to Complainant that she had enough people to assist in the operation, that she did not want to exclude an agent who timely responded to her e-mail in order to allow Complainant to participate, and that ASAC had already approved the participant list. According to SA-1, Complainant was angry and accused her of purposely excluding him from the operation. She told the EEO Investigator that there were "several instances" when she had been excluded from a search-warrant operation "for similar reasons." SA-1 acknowledged telling ASAC, GS, and AGS "several times" that she was "uncomfortable" working with Complainant, but she asserted that that was not the reason Complainant was excluded from the search-warrant operation. Id. Exh. 16 at 4. SA-1 denied that she considered any of Complainant's protected bases when making any decision. She asserted that, until she became aware of his EEO complaint, she believed that she and Complainant had a pleasant, friendly work relationship. Complainant never told her that he was upset or offended, and he never appeared visibly upset. According to SA-1, Complainant's attitude toward her changed after he filed his complaint, and "he became much more unfriendly and distant." Id. Exh. 16 at 5-6. SA-1 found Complainant's allegations of discrimination "highly offensive." She asserted that his "false accusations" disrupted the work environment and caused "distress for those who must work in fear that any of his misinterpretations of statements made, or any act that dissatisfies [Complainant], will cause them to be [the] next person to be accused of some illegal or inappropriate act." Id. at 6. FTO told the EEO Investigator that he played no part in Complainant's nonparticipation in the search-warrant operation. He acknowledged that, "on more than one occasion," he told ASAC, GS, and AGS that he was uncomfortable working with Complainant. After Complainant filed his second EEO complaint, FTO asked to have Complainant reassigned to a different field training officer. He asserted that Complainant made "false accusations against" FTO, that he does not trust Complainant, and that he "would rather not work with [Complainant] in life or death situations." FTO told the EEO Investigator, "I am not comfortable knowing [Complainant] could be behind me in a stack of agents making entry into a house during a search warrant or arrest warrant with his gun pointed at my back." He did not believe that Complainant would "have [his] back" if something went wrong and shots were fired. FTO stated that, when he assisted Complainant with an arrest warrant on November 1, 2010, he felt "physically unsafe" and found being alone with Complainant "extremely stressful." Id. Exh. 13 at 5-7. ASAC stated that SA-1 submitted an Operational Plan for the search-warrant operation on the afternoon of November 15, 2010. According to ASAC, Complainant informed SA-1 of his availability for the operation after ASAC had approved the plan and became upset and angry when SA-1 told him that he was not needed for the operation. AGS also informed ASAC that Complainant was upset and angry about not participating in the operation. Later, when ASAC saw SA-1 and FTO outside the building on November 15, they "appeared to be very upset" and she asked them to come to her office. They told her "that in fact they were very uncomfortable working with, and felt a great deal of anger from, [Complainant] towards them and other group members." ASAC "concluded that levels of stress, anxiety, frustration, and emotions have been elevated for both [SA-1 and FTO] regarding all of [Complainant's] actions, which [she] knew they both took very personally." She told the EEO Investigator that she was concerned that so many group members "were feeling stressed, anxious, and frustrated, when they needed to be in their most concentrated alert-readiness state of mind." As a result, although she could have added Complainant to the operation, ASAC decided not to do so "in order to allow the Operation to move forward in a safe manner and give a few days for all parties to calm down." ASAC stated that Complainant participated in subsequent search-warrant operations and that not participating in one operation does not negatively affect someone's career. Id. Exh. 12 at 4-6. Allegation 24 In a November 18, 2010, e-mail to AGS, Complainant requested reassignment to a work group that was not supervised by ASAC. He alleged that the work environment in the Cyber Crimes Group was discriminatory and that ASAC and GS retaliated against him. Complainant stated that he wanted to return to the Cyber Crimes Group after being assured that he could work in a non-discriminatory environment. In a November 30, 2010, e-mail, the Acting Deputy Special Agent in Charge informed Complainant that there was a vacancy in another group and asked whether Complainant still wished to be reassigned. On December 1, 2010, Complainant responded that he was interested in reassignment, and the Deputy Special Agent in Charge (DSAC) replied that Complainant would be reassigned to the Worksite Enforcement Group. Id. Exh. 20. Complainant alleged that Agency management forced him out of the Cyber Crimes Group through reprisal. Id. Exh. 5 at 23. He asserted that ASAC and GS wanted him to leave the group. Id. 27. ASAC stated that she forwarded Complainant's reassignment request to DSAC but did not make the decision to grant the request. Id. Exh. 12 at 6. Complainant told the EEO Investigator that he would like the option to return to the Cyber Crimes Group. He alleged that co-workers told him that they feared retaliation if they complained about the conduct of employees and managers. He asserted that, rather than prevent inappropriate conduct, managers retaliated against him for reporting violations of Agency and EEO policy. Complainant also asserted that managers told him that he was overly sensitive. Id. Exh. 5 at 27028. ASAC stated that she became aware of Complainant's EEO complaint in September 2010. Id. Exh. 12 at 7. GS and SA-1 became aware of it on September 15, 2010. Id. Exhs. 15 at 2, 16 at 1. FTO stated he was informed of Complainant's EEO complaint in September 2010, that he was "deeply disturbed" by Complainant's allegations, that the allegations against him were false and without merit, and that the allegations made him "emotionally upset and physically ill." Id. Exh. 13 at 6-7. Final Agency Decision At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of his 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). In its final decision, the Agency found that Complainant failed to prove that the Agency discriminated against him as alleged. It concluded that management officials articulated legitimate, nondiscriminatory reasons for Complainant's performance appraisal rating and for his nonparticipation in the execution of the search warrant. The Agency also concluded that Complainant did not show the reasons to be pretextual. With respect to the performance appraisal, the Agency noted that GS stated that Complainant did a good job in his first year at the Agency, that the rating accurately reflected Complainant's performance, and that Complainant did not have the same responsibilities that other agents had. Noting that Complainant acknowledged that officials subsequently raised his rating, the Agency concluded that Complainant failed to show that discriminatory animus motivated the rating. With respect to the search-warrant matter, the Agency stated that Complainant informed SA-1 of his availability after SA-1 had committed other agents to the operation and ASAC had approved the Operational Plan. The Agency found that Complainant failed to produce evidence of pretext or discriminatory motivation. The Agency further found that Complainant failed to establish that the Agency subjected him to a discriminatory hostile work environment. The Agency concluded that, assuming that the incidents at issue were sufficiently severe or pervasive to constitute harassment, there was no basis for imputing liability to the Agency. In that regard, the Agency found no evidence that Complainant complained to management officials before he contacted an EEO Counselor or that management knew or should have known of his concerns. The Agency concluded that supervisory awareness of the hat incidents did not establish that management should have known of the alleged harassment. Finally, the Agency analyzed Complainant's reassignment claim under a theory of constructive reassignment. The Agency found that Complainant did not establish that the incidents at issue were discriminatory or intolerable. Accordingly, the Agency concluded that Complainant's reassignment did not constitute a constructive reassignment. CONTENTIONS ON APPEAL Complainant raises no arguments on appeal. The Agency argues that Complainant has not established that the Agency subjected him to a discriminatory hostile work environment. The Agency further argues that it articulated legitimate, nondiscriminatory reasons for the performance appraisal rating and the search-warrant matter and that Complainant has not shown the articulated reasons to be pretexts for discrimination. Finally, the Agency argues that Complainant failed to establish that his working conditions were intolerable. STANDARD OF REVIEW 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 Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "required that the Commission examine the record without regard to the factual and legal determination 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"). ANALYSIS AND FINDINGS Harassment In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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 employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement Guidance on Vicarious Employer Liability). No affirmative defense is available when a supervisor's harassment results in a tangible employment action. Burlington Industries at 762-63; Faragher at 808. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See Enforcement Guidance on Vicarious Employer Liability). 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. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992). In this case, Complainant alleged that Agency employees harassed him by, among other things, requiring him to wear a demeaning hat, making sexually explicit comments, telling sexual "jokes," calling him names, making race-based derogatory comments about African Americans and Asians, and making degrading comments about his masculinity. Complainant, however, acknowledges that he did not respond to the comments and did not complain about the incidents to management officials before he contacted an EEO Counselor concerning this complaint. Although GS and ASAC saw Complainant wearing the hat, there is no evidence that Complainant exhibited discomfort or informed them of his objections to the hat. Further, given that Cyber Crimes Group members outside of Complainant's protected groups also wore the hat, we cannot say that GS and ASAC should have known that the hat involved unwelcome conduct related to Complainant's protected bases. The evidence of record does not establish that the Agency knew or should have known of the alleged harassing conduct. Accordingly, we find that there is no basis for imputing liability to the Agency for the incidents that occurred before Complainant complained to the EEO Counselor. With respect to FTO's November 4, 2010, use of the word "bitch," we note that FTO made the comment under his breath and did not direct it at Complainant. We find that this comment, even if viewed in light of the other sex-based remarks described in the record, is insufficient to establish that the Agency subjected Complainant to a discriminatory hostile work environment. Disparate Treatment To prevail in a disparate treatment claim, 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 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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 may establish pretext by showing that the Agency's articulated reason is unworthy of credence or that a discriminatory motive more likely motivated the Agency's actions. Burdine, 450 U.S. at 256. 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.). 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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 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. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In this case, Complainant alleged that the Agency retaliated against him for filing the instant complaint when he received an unduly low performance appraisal, was precluded from participating in the execution of a search warrant, and felt compelled to request reassignment from the Cyber Crimes Group. We assume for purposes of analysis only, without so finding, that Complainant has established prima facie cases of reprisal discrimination. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We further find that Complainant has not proven that the articulated reasons are pretexts for reprisal. With respect to the performance appraisal, GS stated that Complainant did a good job and met all of the requirements, that Complainant did not have all of the responsibilities that other agents had, and that the appraisal reflected Complainant's performance. In response to Complainant's rebuttal, GS raised Complainant's scores in two areas and gave Complainant an overall rating of "Exceeded Expectations." Complainant has not shown that the articulated reasons are unworthy of credence. He has summarized his accomplishments, but he has not demonstrated that the Agency evaluated his performance inaccurately. For example, he has not refuted GS's statement that he "did not have all of the same responsibilities" that other Agents had. We cannot say, based on the record before us, that Complainant's performance was equal to that of employees who received higher ratings. In addition, we note that two agents who did not engage in protected activity also received "Achieved Expectations" ratings and that GS ultimately raised Complainant's rating to "Exceeded Expectations." Similarly, Complainant has not shown that retaliatory animus motivated the rating. In his November 12, 2010, response to Complainant's rebuttal, GS stated that he found Complainant's allegation that the rating was retaliatory to be "personally offensive and extremely unprofessional." Although we find GS's statement to be evidence of hostility toward Complainant's EEO activity, we cannot say that it demonstrates that Complainant's performance rating resulted from retaliatory animus. In that regard, we note that GS made the statement in a document in which he agreed to raise the rating. With respect to Complainant's nonparticipation in the execution of a search warrant, ASAC and SA-1 stated that Complainant informed SA-1 of his availability after SA-1 had received commitments from agents in other units and ASAC had approved the Operational Plan. ASAC decided not to add Complainant to the operation because group members were "stressed, anxious, and frustrated" and she wanted to give people time to calm down and to ensure that the operation went forward safely. We cannot say, based on the evidence before us, that Complainant has shown these reasons to be pretextual. For example, Complainant has not shown that he notified SA-1 of his availability before she obtained commitments from other agents or before ASAC approved the Operational Plan. He has cited no instances when agents were added to operations after the approval of Operational Plans. Further, Complainant has not refuted SA-1's assertion that she was excluded from search-warrant operations "for similar reasons." Similarly, Complainant has not refuted ASAC's assertion that she did not add Complainant to the operation because people were "stressed" and she wanted to ensure the safe implementation of the operation. SA-1's acknowledgements that she found Complainant's discrimination allegations "highly offensive" and that she told ASAC, GS, and AGS that she was uncomfortable working with Complainant are evidence of her hostility toward Complainant's protected activity. The totality of the evidence before us, however, does not demonstrate that SA-1's hostility, rather than Complainant's delayed response to her e-mail, more likely motivated Complainant's exclusion from the search-warrant operation. Accordingly, we find that Complainant has not demonstrated that the Agency excluded him from participation in the execution of the search warrant in reprisal for his protected EEO activity. Having found that Complainant has not shown that the Agency subjected him to a discriminatory hostile work environment or retaliated against him with respect to his performance appraisal and the search-warrant matter, we cannot say that Complainant's working conditions were so intolerable that he was forced to request reassignment. Accordingly, we find that Complainant has failed to demonstrate that his reassignment was in reprisal for his protected EEO activity. Per Se Violation Although we find that the evidence of record is insufficient to establish that the Agency took the specific actions at issue here in retaliation for Complainant's protected EEO activity, we nonetheless find it necessary to address the unmistakable hostility toward Complainant's protected activity. Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant told that filing an EEO suit was "wrong way to go about getting a promotion"). Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. §1614.101. This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity." 29 C.F.R. §1614.102(5); Binseel v. Dep't of the Army, supra; Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), (per se violation found when a labor management specialist told the complainant, "as a friend," that his EEO claim would polarize the office); Vincent v. U.S. Postal Service, EEOC Appeal No. 0120072908 (Aug. 3, 2009), request to recon. den., EEOC Request No. 0520090654 (Dec. 16, 2010) (per se violation where supervisor mentioned EEO complaints had been filed, said "What goes around, comes around"). When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the behavior is a per se violation. Contrary to GS's assertion, it is not "unprofessional" for an individual to allege that he or she has been subjected to discrimination or retaliation for protected activity. Rather, it is a statutorily protected right. The statements of FTO and SA-1 demonstrate a further lack of regard for Complainant's statutory rights. ASAC expressed concern about the stress and frustration that FTO and SA-1 experienced, but she did not address whether she took any steps to ensure that they understood and respected Complainant's right to engage in EEO activity. We find that the statements of GS and others evidence, at best, ignorance of their responsibilities under Title VII; at worst, blatant disregard for the rights of individuals under Title VII. This attitude on the part of managers is reasonably likely to keep them from carrying out their obligations to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. The Agency is strongly reminded that there is no place for this type of behavior from any manager of the federal government. While the record does not support a finding that Complainant has established a claim of discrimination for which he is entitled to individual relief, the record abundantly supports a finding that there has been a per se violation of Title VII. Accordingly, we will order the Agency to provide EEO training to personnel at its ICE Office of Investigations in San Diego, California, and to post a notice of this finding. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision with regard to the individual claims of Complainant's complaint; we nonetheless find the Agency to have committed a per se violation of Title VII, subject to the Order of the Commission, below. ORDER (C0610) The Agency is ORDERED to take the following remedial action: With ninety (90) days of the date on which this decision becomes final, the Agency shall conduct EEO training for all personnel at its ICE Office of Investigations in San Diego, California. The training shall consist of not less than four (4) hours for employees, and not less than eight (8) hours for managers and supervisors. The training may cover rights and obligations under all statutes enforced by the Commission, but must include special emphasis on the topic of reprisal/retaliation. The Agency shall post a notice of the finding of discrimination, pursuant to the paragraph entitled, "Posting Order," below. 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 (G0610) The Agency is ordered to post at its Immigration and Customs Enforcement (ICE) Office of Investigations located in San Diego, California, 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 July 1, 2014 Date 1 Complainant also alleged that the Agency discriminated against him on the basis of sexual orientation (heterosexual who was referred to as gay). In its December 28, 2010, acceptance letter, the Agency noted that Title VII does not include sexual orientation as a covered basis. The Agency stated that, although there were no appeal rights to the EEOC for claims alleging discrimination on the basis of sexual orientation, the Agency may address such claims in its final agency decisions. ROI Exhibit (Exh.) 2. To the extent that Complainant alleges that he was subjected to harassment for failing to conform to any gender-based expectations or norms, Complainant alleges sex discrimination in violation of Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). 2 The record does not contain a copy of the e-mail. 3 The e-mail is not in the record. Although SA-1 told the EEO Investigator that the November 15, 2010, e-mail sought assistance "for the following day," ROI Exh. 16 at 4, Complainant and ASAC stated that the search-warrant activity occurred on November 17, 2010; id. Exhs. 5 at 20, 12 at 4-5. 4 Although Complainant quoted from the e-mails in his statement to the EEO Investigator, ROI Exh. 5 at 19-23, only his second November 16, 2010, e-mail is in the record in the record, id. Exh. 20 at 2. The record does not contain any memoranda that AGS and SA-1 submitted about the search-warrant matter. Complainant alleged that AGS submitted a memorandum to ASAC and that ASAC asked AGS to change the memorandum. ROI Exh. 5 at 22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113331 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120113331