Marcellus M., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120123111 Agency No. FBI-2011-00070 DECISION On July 27, 2012, Complainant filed an appeal from the Agency's June 25, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent and part-time pilot with the Federal Bureau of Investigation in Detroit, Michigan. On January 19, 2011, Complainant contacted the EEO Counselor alleging that he had been subjected to discrimination. When the matter was not resolved, on February 15, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (49), and reprisal for prior protected EEO activity when, since October 21, 2009, Complainant was subject to ongoing harassment. In support of his harassment claim, Complainant alleged that the following events occurred: 1. On October 21, 2009, the Special Agent in Charge ("SAC") and an Assistant Special Agent in Charge ("ASAC 1") prevented his immediate supervisor (Supervisor 1) from giving him a work performance appraisal of "Outstanding." 2. On December 21, 2010, during a meeting of Complainant's squad, the SAC openly discouraged the filing of EEO complaints. At the same meeting, ASAC 1 acknowledged that he had previously sent an offensive text message about Complainant to the squad. 3. On January 19, 2011, the SAC reassigned Complainant to another squad. 4. On January 19, 2011, Complainant's Agency vehicle was taken from him.1 5. On January 21, 2011, the SAC did not approve awarding a Quality Step Increase (QSI) to Complainant, although his immediate supervisors supported his receiving the award. 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). Complainant requested a final decision by the Agency. As such, 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 him to discrimination as alleged. As to allegation (1), the Agency noted that Complainant received the rating in October 2009, but did not contact the EEO Office in January 2011, some two years later. The Agency found that this event should be dismissed, pursuant to 29 C.F.R. §1614.107(a)(2), because his contact was well beyond the 45-day limitation period. In addition, the Agency determined that Complainant failed to prove that his rating of "Excellent" was due to his sex, age and/or prior EEO activity. The rating official provided legitimate, nondiscriminatory reasons for the rating. Specifically, an Assistant Special Agent in Charge ("ASAC 2") averred that Complainant was a good performer, but not the best on the squad. As such, his work was correctly rated as "Excellent" rather than "Outstanding." As to allegation (2), the Agency indicated that Complainant alleged, on that date, a meeting was held and the SAC warned those attending against filing complaints like EEO complaints. The Agency found that other management officials at the meeting, such as ASAC 2, did not corroborate Complainant's claim. Further, the Agency noted that Complainant was not harmed by any discussion. The Agency found that the alleged offensive text message was sent in 2006 when ASAC 1 sent the staff a message indicating that Complainant had gone to a sick co-worker's home to rub Vick's Vapor Rub on the sick employee's chest. Complainant asserted that the implication of the message was that Complainant and the co-worker were engaged a sexual relationship. The Agency noted that the any claim regarding the 2006 message was untimely raised with the EEO Counselor. As to allegations (3) and (4), the Agency noted that the SAC stated that he decided that the tensions in the workplace had gotten so high that he decided to move all but one agent out of the squad. As such, Complainant and others were transferred out to other squads. Based on the transfer, Complainant was asked to relinquish his Agency vehicle. Management later changed its mind and permitted Complainant to keep the vehicle. Finally, as to allegation (5), responsible management officials indicated that they could not award QSIs to all agents who were nominated for them that year because it was a period when a number of agents in Complainant's division had unusually significant and laudable goals. As such, Complainant was not awarded a QSI. The Agency concluded that Complainant did not show that the alleged events occurred due to his protected bases. It also determined that Complainant failed to demonstrate that the Management officials created a hostile work environment. Accordingly, the Agency concluded that Complainant failed to establish his claims of discrimination. The instant appeal followed. 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, at 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"). Reprisal - Allegation (2) Complainant asserts that he and another Special Agent ("Coworker 1") had contacted the Office of Professional Responsibility (OPR) and the EEO office about an alleged atmosphere of harassment in their workplace, including a text message sent by ASAC 1 to the squad insinuating falsely that Complainant and Coworker 1 had a sexual relationship. Complainant alleged that the SAC was aware that they made the contacts with OPR and EEO. Complainant asserted that on December 21, 2010, the SAC assembled all of the agent/pilots in the squad for a meeting. The SAC opened the meeting with a "flurry of profanity" which Complainant believed was directed at himself and Coworker 1. Complainant averred that the SAC threatened to "ground the fucking planes" and to "shut down the whole God-damned squad." Then, according to Complainant, the SAC noted that there were complaints filed by squad members with OPR and EEO. Complainant noted that he and Coworker 1 were the ones who had contacted OPR and EEO. Coworker 1 then stated at the meeting that that the problems had started when ASAC 1 sent the offensive text message. Complainant and Coworker 1 indicated that the text served to heighten the tensions in the office. ASAC 1 admitted at the meeting to sending the text, but said it was only intended as a "joke." Coworker 1 confirmed Complainant's version of what was said by the SAC during the December 21 meeting. He noted that he had made contact with the EEO office regarding another issue. He took the SAC's comments to constitute a threat to disband the program. He felt that he was being pressured "to drop [his] own EEO filing." The SAC averred that he called the December 21 meeting to address the problems the unit was having. He indicated the pilots were "having conflicts among themselves for years; sniping at each other and making complaints about one another." He noted that there were complaints dating back four years. He asserted that it did not involve any EEO, OPR or Office of Inspector General matters and that if anyone wished to file any type of complaint, they had the right to do so. He claimed that the meeting was about stopping the sniping and bad mouthing as it had become an embarrassment to the division. ASAC 2 averred that the SAC spoke to the group about trying to work out issues inside the squad and the chain of command first. If they are not successful in resolving the matter, then he asserted the SAC said the employee could go outside.2 Another coworker ("Coworker 2") averred that there had been problems within the squad for years and, at the meeting, the SAC wanted to make it clear that "if the problems did not end that he would end the aviation program." Coworker 2 stated that at the meeting the SAC opened the meeting with a profanity-laced tirade and mentioned, "that someone had been going to OIG and EEO." The SAC then threatened to disband the whole aviation programs "if the nonsense did not stop." Coworker 2 noted that it was significant that the SAC then proceeded to disband the program a few weeks later in January 2011, sending almost all of the squad's agents/pilots to different squads. The Commission has held that the actions of a supervisor may constitute per se unlawful retaliation if the supervisor intimidates an employee about, or interferes with, the employee's EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993). We determine that SAC's comments, announcing members of the squad had contacted EEO and following it with a threat (which he later carried out) to put an end to the aviation program, constituted a per se violation of Title VII and the Commission's regulations by interfering with Complainant's rights to pursue remedies for violations of equal employment laws. 42 U.S.C § 2000e-3(a); 29 C.F.R. § 1614.101(b); See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Upon review, we specifically determine that the comments made by the SAC constitute a per se violation of Title VII because such comments were likely to have a chilling effect and deter employees from full exercise of their EEO rights as evidenced by the affidavit provided by Coworker 2. We note that an agency has a continuing duty to promote the full realization of equal employment opportunity in its policies and practices in every aspect of an agency's personnel matters. 29 C.F.R. § 1614.102. Agencies must, among other things, insure that its supervisors promote and enforce a vigorous equal employment opportunity program. Pruette v. U.S. Postal Service, EEOC Appeal No. 01951567 (March 3, 1998). Disparate Treatment - Reprisal Claim Concerning Allegations (1), (3), (4) and (5) 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 engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he 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 (September 25, 2000). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must finally prove, by a preponderance of the evidence, that the agency's proffered reason is a pretext for retaliation. Upon review of the record, we find that Complainant established prima facie case of reprisal. The record indicated that Complainant engaged in prior EEO activity; Agency management was clearly aware of the protected activity; and shortly thereafter he was subjected to adverse treatment by the Agency. As to allegations (3), (4), and (5), we note that the meeting at which the SAC discussed complaints filed, such as EEO complaints, occurred on December 21, 2010. Further, ASAC 1 noted that the issue of the text message occurred over five and a half years ago and believed it was over. He noted that Complainant brought up the allegedly harassing event at the December 21, 2010 meeting. We find that at the meeting, Complainant complained about harassment/hostile work environment created by ASAC 1. The events alleged in claims (3), (4), and (5) occurred within a month of that meeting. Based on the timing of the events, we find a nexus between the protected activity and the adverse action. As such, we turn to the Agency to articulate legitimate, nondiscriminatory reasons for its actions. As to the 2009 performance appraisal raised in allegation (1), Supervisor 1 averred that he was only permitted to issue one "Outstanding" rating for the squad. He noted that Complainant was new to the squad and performed well, but was not the top performer in his squad. He also said he consulted with Complainant's prior supervisor in rating him. As to allegation (3), the record indicated that the SAC reassigned five pilots, including Complainant, out of the squad. The SAC averred that Complainant was not singled out for the transfer and only one pilot was left to handle administrative matters and coordinate aviation requirements. The SAC kept the only person he believed was not involved with the internal bickering. In allegation (4), Complainant also asserted that he was the only person transferred who was required to turn in his Agency vehicle. The record is clear that ASAC 1 had allowed all four of the other transferred pilots to keep their assigned vehicles, but required Complainant to turn his in. ASAC 1 stated that Complainant's vehicle had low mileage and was specially outfitted for surveillance. So the ASAC 1 sought to keep it for the squad. He asserted that the other pilots who were transferred had vehicles that were not highly desired because they had high mileage or stood out too much to be surveillance vehicles. As to allegation (5), the SAC averred that there are only 15 QSIs available in 2010 to be awarded to the agent population at the facility. He noted that there were over 20 squads of agents competing for the QSIs. The SAC did not recall Complainant's name being considered for a QSI, noting that it would be difficult for any pilot to compete for the QSI. The SAC stated that other agents were involved in higher priority matters, including international terrorism cases, domestic terrorism cases, and public corruption cases such as the indictment of the former mayor of Detroit. Based on the other successes within the Detroit Division, it was difficult, according to the SAC, for any pilot to compete for a QSI against agents with these accomplishments. ASAC 2 averred that Complainant's name was submitted for consideration by his supervisor (Supervisor 2). ASAC 2 reviewed the submission but determined that he did not see that Complainant had done anything above and beyond his job responsibilities. ASAC 2 found that Complainant's submission did not compare to the achievements of other agents in significant cases. As such, ASAC 2 removed Complainant's name from the list submitted for consideration. ASAC 2 noted that he removed all three names submitted by Supervisor 2 because he felt that none of the nominees had sufficient accomplishments to merit a QSI. Therefore, Complainant did not receive a QSI. We turn to Complainant to prove that the Agency's proffered reasons were pretext designed to mask the true retaliatory motivation. As for allegations (1) and (5), Complainant merely disagreed with the Agency's proffered reasons. We find that this is not enough to establish that the Agency's reasons were pretext designed to mask unlawful retaliatory animus. As to allegation (3), regarding the reassignment, we again find that Complainant has not shown that the Agency's reasons were pretext because all but one of the other pilots were also reassigned. As to allegation (4), we note that the ASAC 2 said that he was informed about the vehicle issue when the EEO Counselor contacted him. He then asked ASAC 1 for the reason Complainant was not permitted to keep his vehicle. ASAC 2 averred that ASAC 1 did not initially provide him with any reasoning, and then mentioned that Complainant had previously been concerned about his back in the car. ASAC 2 said that he told ASAC 1 that if taking away Complainant's original vehicle was an issue, ASAC 1 should give it back to Complainant. Following ASAC 2's intervention, ASAC 1 returned the vehicle to Complainant. Upon review, we note that the ASAC 2 did not indicate that ASAC 1 told him that he was keeping Complainant's car because it was a newer vehicle that was well suited for surveillance. We find that there are inconsistencies between ASAC 1 and ASAC 2's reporting of the events surrounding the Agency vehicle being taken from Complainant. Coworker 2 suggested that ASAC 1 was being "purely vindictive" when he kept Complainant's car "in the aftermath of the December 21, 2010 meeting." Based on the inconsistencies and the fact that this occurred only one month after the meeting in which Complainant discussed the alleged harassment by ASAC 1, we find that Complainant has established that the proffered reason was pretext for unlawful retaliation. Disparate Treatment - Sex and Age Claims Concerning Allegations (1), (3), (4) and (5) A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The elements of the prima facie case are determined by the individual circumstances of each case and the bases of discrimination alleged; but regardless of the specific action at issue, petitioner may establish a prima facie case by demonstrating: 1) that he is a member of a protected group; 2) that he is similarly situated to employees outside of his protected group; 3) and that he was treated differently than those employees. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864, 865 (6th Cir. 1975). However, it is not necessary for petitioner to rely strictly on comparative evidence in order to establish an inference of discriminatory motivation necessary to support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,3112 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996). In claims (1), (3), (4) and (5), Complainant asserted that he was treated differently based on his sex and age. Complainant is a male over the age of 40. However, Complainant has not shown that he was treated differently than others outside of these classes as most of the other agents were also male and close to his age, and he presented no other evidence suggesting that sex or age played a role in the events at issue. Therefore, upon review, we find that Complainant has not established a prima facie case of discrimination based on sex and age with respect to claims (1), (3), (4) and (5). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the finding of no discrimination as to allegations (1), (3), and (5). However, the Commission REVERSES the Agency's final decision and find that Complainant has shown that he was subjected to unlawful retaliation with regard to allegations (2) and (4). Therefore, we REMAND the matter for further processing in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: I. 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. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 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. II. The Agency is directed to conduct EEO training, with a special emphasis on the anti-retaliation provisions, for the SAC and ASAC 1, who were found to have violated Title VII. III. The Agency shall consider taking disciplinary action against the SAC and ASAC 1. The Agency shall report its decision. 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. IV. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final. 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 Detroit District 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 March 27, 2014 __________________ Date 1 We note that the Agency listed allegations (3) and (4) as a single allegation. We find that it more correctly represents Complainant's complaint to separate these matters into two allegations. 2 We note that ASAC 2 testified only about what the SAC told him occurred at the meeting. There was no indication that he was actually at that meeting in order to provide direct testimony as to what the SAC told the pilots. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120123111 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120123111