Reggie D., Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency. Appeal No. 0120130468 Agency No. 11-0135-AL DECISION On November 8, 2012, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency decision (FAD) dated October 10, 2012, 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Agent ("Courier") at the Agency's National Nuclear Security Administration, Office of Secure Transportation, Agent Operations Central Command, in Amarillo, Texas. The Director of Agent Operations was Complainant's third line supervisor. Under him were two parallel units. Each unit had four squads, variously known as units, teams and squads. Each squad is supervised by a "Unit" Commander, a supervisory courier, comprised roughly 15 to 20 people. Complainant's first line supervisor was a Unit Commander. As a courier, Complainant was a member of a protective force responsible for the safe and secure transportation of nuclear materials including nuclear weapons, components, test assemblies, and strategic quantities of weapons grade special nuclear materials. Couriers transport the above in vehicle convoy road trips. For the duration of the trip the convoy would be led by a Convoy Commander, a lead courier, who is part of a squad. Previously, Complainant filed an EEO complaint alleging he was subject to harassment from May 2010 to July 17, 2011. In Couch v. Department of Energy, EEOC Appeal No. 0120131136 (Aug. 13, 2013), the EEOC found that Complainant was harassed based on his sex (male, gender stereotyping, perceived sexual orientation) and reprisal for prior protected EEO activity. In summary, incidents which were found to be discriminatorily harassing included the following: co-workers repeatedly calling Complainant "fag," "faggot," and "gay," telling him he did not belong in the organization, and calling him retaliatory names such as "rat." A Convoy Commander admitted that after receiving Complainant's EEO notice he did not go out of his way to engage him in conversation. Agents were warned by numerous supervisors to be careful around Complainant because of his EEO activity, and he was ostracized by his supervisors and co-workers. For example agents called in sick or canceled their trip if they were assigned to work with Complainant on a convoy and said they did not like him. Complainant was corrected for making wrong turns. A Convoy Commander asked that Complainant be observed on a convoy trip, and his first line supervisor elicited feedback from a training instructor on how Complainant performed during a training session. Complainant complained about harassment to supervisors throughout the entire chain of command, but it was not addressed with immediate and appropriate corrective action. The retaliatory harassment ultimately culminated in Complainant discovering on July 7, 2011, that the words "RAT FAG" and "God Loves Rat Fags To" were written on his gun bag and gun tag, and sexually explicit gay and lesbian magazines were left in rental cars on a trip on where he would find them on July 17, 2011. On October 17, 2011, Complainant filed another EEO complaint, as amended, alleging that he continued to be subjected to harassment from coworkers and supervisors in retaliation for filing his original complaint described above. In support of his claim of retaliatory harassment, Complainant alleged the following: 1. During a five day convoy trip starting on August 8, 2011 (approximately three weeks after the last incident raised in his previous complaint), he was subjected to strict scrutiny, harassed, and treated poorly when: a. CW2, a courier, yelled to CW1, a courier, "Guess I can't say that, someone will file on me."1 b. He was pressured to violate safety practices and when he refused to comply, he was harassed and yelled at. c. He was the only one criticized about his driving. d. He was verbally warned in a rude and threatening manner by the Convoy Commander, S1, for a security incident. e. His performance was over-scrutinized. f. S1 yelled at him for leaving his fog lights on and leaving his turn signal on too long. g. Co-workers criticized him for turning on his hazard lights and he was subsequently ordered to turn them off by CW5,2 a lead courier. h. While parking the tractor, S1 asked him via radio to move the truck 20 feet backwards and then 20 feet forward while fellow co-workers laughed on the radio. i. S1 continually scrutinized, pressured and harassed him to the point where his hands were physically shaking, but ignored the safety violations and excessive speed by other co-workers. j. His co-workers told him via radio that his brake lights were on and tailgated him several times. k. He asked S1 why he was verbally assaulting him and placing him under constant scrutiny and he replied "you are soft spoken and the guys take that for weakness, and you are going to get it. I don't have a problem with you, I would apologize, but you know that I will do that again." 2. On August 29, 2011, his first line supervisor, S3 informed him that he was collecting statements from staff because of an alleged safety incident. 3. On August 29, 2011, CW7, a senior courier, told him "You were placed on my fire team because no one else wants to deal with you." 4. Regarding an inventory: a. On September 2, 2011, he was required to inventory his equipment even though it had just been inventoried;3 and b. S2, a Unit Commander, who performed the inventory with CW8, a courier, was unprofessional and threatening toward Complainant. 5. On September 9, 2011, S3 threatened him with discipline for a security incident that occurred during the August 8, 2011 convoy trip. 6. On January 13, 2012, S8, a Unit Commander, asked him to leave the computer room and remain away from there because the other employees did not want to work around him because of past allegations of workplace misconduct. Following an investigation, Complainant was notified of his right to elect between requesting a hearing before an EEOC Administrative Judge and a FAD. Complainant requested a FAD, and thereafter the Agency found no discrimination. The Agency found that incidents 1(a), (b), (c) and (e), (f), (h), (i), (j), and (k) were unsubstantiated. Regarding incident 1(d), the Agency cited witness statements that Complainant suddenly opened his door to talk to a man who wanted to wash the wheels of his truck, a significant security violation. The Agency found that while the use of profanity was not recommended, a one-time incident of this nature did not rise to the level of a hostile work environment. On incident 1(g), the Agency found that CW14, a courier, initially asked Complainant to turn off his hazard lights, and when he did not do so CW5, a lead courier, directed him to do so, and this was not related to EEO activity. On incident 2, the Agency found that S3 gathered statements because Complainant reportedly committed a safety violation by twice bounding into the line of fire in a training incident. The Agency found that incident 3 was unsubstantiated. On incident 4(a), the Agency found that Complainant's equipment was inventoried in accordance with management practice to do so when an agent is leaving for 30 days or longer. The Agency found that incident 4(b) was unsubstantiated. On incident 5, the Agency found that S3 gathered statements on the August 8, 2011, open door truck incident and advised Complainant that he could be subject to discipline depending on the outcome of the investigation. It found that this was within the legitimate and responsible exercise of S3's role as Complainant's first line supervisor. The Agency conceded that incident 6 occurred, but found no discrimination because management took immediate steps to correct the situation. On appeal, Complainant reiterates the contentions he made below, argues that the Agency incorrectly weighed the facts, and that an internal affairs investigation supported his claims and was not made part of the investigative file. In opposition to the appeal the Agency avers that Complainant did not provide it a copy of his brief, and argues the FAD should be affirmed. ANALYSIS AND FINDINGS As an initial matter, we find that the Agency's investigation was sufficient to allow a reasonable fact finder to draw conclusions as to whether discrimination occurred. A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete acts of discrimination, a hostile work environment claim is based upon the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. To demonstrate a prima facie case of a hostile working environment Complainant must show: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his protected status; (4) that the harassment affected a term, condition or privilege of employment; and, (5) that the agency knew or should have known of the harassment. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In Couch, EEOC Appeal No. 0120131136, we credited Complainant's claim that he was harassed by supervisors and co-workers alike based on his sex and reprisal for prior EEO activity when he was subjected to numerous harassing incidents from May 2010 to July 17, 2011. Complainant now contends that the harassment continued in retaliation for his earlier complaint with incidents occurring from August 8, 2011 to January 13, 2012. In the current complaint, Complainant does not contend that he continued to be subjected to explicit vulgarities or other harassment based on his sex. Rather, he contends that retaliatory harassment continued in more subtle forms. As an initial matter, we find that Complainant's prior EEO complaint was a matter of general knowledge in his workplace due to the number of individuals involved in those prior matters. Therefore, with few exceptions, the record shows that those named in the current complaint had varying degrees of knowledge about Complainant's previous complaint. While we agree with the Agency that some of the incidents now cited by Complainant did not occur as alleged or there were non-retaliatory reasons for them, we disagree that this is true across the board. August 2011 Convoy Trip - Truck Door Incident The record shows that Complainant drove a truck during a five-day convoy trip which started on August 8, 2011. The Convoy Commander was S1. While the trucks were stopped at a gas station, S1 and CW6, a senior courier, stated they witnessed Complainant open his door to speak to a man who approached his truck. ROI, Exhibits F6 and F20. S1 stated that opening the truck's cab door poses a potential security threat, and couriers are taught not to do so. CW6 confirmed that couriers are taught from day one that truck doors are to remain locked and not to open them for anyone. While CW7 did not witness the incident, his recounting of his conversation with Complainant directly thereafter corroborated S1 and CW6's account. ROI, Exhibit F17. Complainant stated that the man was standing directly in front of his truck while he was trying to exit the gas station and he needed him to move. Complainant contended that S1 retaliated against him over the matter when he shouted at him, "Don't you ever fucking do that again or I'll put you down on paper." S1 conceded that he chastised Complainant for opening the door. CW7 stated S1 walked across the parking lot yelling at him (CW7) because he was the vehicle lead and S1 asked him, "what the hell is going on," then continued walking to Complainant to question him. Given these circumstances, there is insufficient evidence to support Complainant's contention that S1's dressing down Complainant regarding the matter was motivated by any form of retaliatory animus. However, Complainant contended that later S3 told him he was collecting statements about the open door truck incident, he should not be surprised if he was disciplined, and told him several times he was "not special." On the other hand, S6, the Deputy Director of Operations and Complainant's second line supervisor, confirmed that Complainant violated a security policy, but stated the matter did not rise to the level of a formal security incident and believed S3 was going to give Complainant an oral admonishment. ROI, Exhibit F4, at 171. However, S10, the Director of Agent Operations and Complainant's third line supervisor, indicated that S3 was assembling a disciplinary packet, including an evaluation of Douglas Factors, but Human Resources told him to hold off. We take administrative notice that Douglas Factors are used in cases of severe discipline appealable to the Merit Systems Protection Board. Instead, Human Resources later gave Complainant a letter of counseling. ROI, Exhibit F7, at 194-95. S3, who was aware of Complainant's prior EEO activity (ROI for complaint 110086AL, Exhibit B1, at 108; Exhibit F8 at 277)4 explained that he gathered statements because there was an allegation that Complainant violated procedure, and it was his job to look into such matters. S3 adamantly denied telling Complainant he was not special. He countered Complainant began talking about his EEO issues, and he told him that regardless of what was going on he had to abide by the same rules as others. Regarding discipline, he stated he was unable to resolve the matter because Complainant was later reassigned to another Unit. ROI, Exhibit F10, at 207-08. Based on a preponderance of the evidence, we find that S3's actions in connection with this incident were retaliatory. While it was legitimate for him to look into the open door truck incident, the weight of the record shows he was pressing for severe discipline for the open door truck incident, and conveyed this to Complainant by his collection of written statements and threatening him with discipline. ROI, Exhibits F7 at 194-95. However, other management officials such as S6 wrote that the matter did not rise to the level of a formal security incident, and Human Resources later issued only a letter of counseling. We find that S3's push for severe discipline is suspect, and we credit Complainant's statement that he repeatedly told him he was not special - a reference to his EEO activity. The weight of the evidence makes it more likely than not that S3 was motivated, at least in part, by Complainant's prior complaint when pushing for the unusually harsh discipline over this incident. August 2011 Convoy Trip - Pressure to Violate Safe Driving Practices The remaining events of concern to Complainant on the August 2011 convoy trip center on being pressured by supervisory personnel and coworkers to violate safe driving practices, and being yelled at, cursed at and criticized when he declined doing so. In this regard, we find that it was known to many on the trip that Complainant was sensitive to being accused of violating rules because he believed the general animus over his prior EEO complaint would result in extra scrutiny, criticism and discipline. This sensitivity was no doubt exacerbated by the open door incident. A fair reading of Complainant's other contentions about the trip is that he believed people used that sensitivity to harass him by trying to force him to break safety rules. For example, S6 stated that after the mission Complainant complained that he was forced to exceed speed limits, and the matter was turned over to S9, S1's Unit Commander, for investigation, which was still ongoing when the EEO investigation was completed. However, according to S6, the investigation revealed S1 allowed some speeding during the mission and engaged in some other "deceitful behavior that had nothing to do with EEO" for which S1 was in the process of being seriously disciplined by S9.5 ROI, Exhibit F4. While others on the trip uniformly denied pressuring Complainant to speed, there is no doubt that the convoy sped in violation of Agency policies. Complainant's statements that he repeatedly communicated in various ways that he did not want to speed during the trip is credible in light of his complaining to the chain of command about the speeding upon their return from the trip. Given that the speeding violated Agency policy and was unsafe, and Complainant made it clear he did not want to speed, we find that at least part of the reason for pressuring Complainant to speed during the trip was to make him uncomfortable and/or try to get him to violate rules in retaliation for his EEO activity. The record establishes that some of those Complainant accused of pressuring him to speed were aware of his prior EEO activity, i.e., CW8 (ROI, F12, at 213), and CW3 (ROI for complaint 110086AL, Exhibits F1 at 181 and F13 at 327). Complainant also alleges that S1 criticized him for keeping his foglights on and keeping his turn signal on too long. In another example, after one of the convoy vehicles got into an accident, Complainant's truck had to park on the side of a secondary road while the matter was being resolved. Complainant stated he put on his hazard lights pursuant to Department of Transportation regulations, and not having them on was unsafe because a vehicle could hit him from behind. ROI, F1, at 149. CW14 kept communicating to Complainant to turn off his hazard lights, who replied by explaining why he had them on. Id. CW11, a senior courier, stated he did not know why the hazard lights were being turned off because they usually put them on when they are parked on the side of the road. He stated it would be different if they were in a designated parking area, but Complainant's vehicle was actually in the road. RO1, F19 at 251. Again, it appears here that it is more likely that the instructions were issued to Complainant to make him uncomfortable. Complainant also alleged that he was subjected to ridicule when S1 asked him via radio to move his truck 20 feet backwards and then 20 feet forward while fellow co-workers laughed on the radio. While those involved deny this happened, in light of totality of the situation, we find Complainant's recounting of the event to be credible. In sum, while it is unlikely that all the incidents cited by Complainant on the convoy trip were motivated by retaliatory animus, we find some evidence to support a finding that Complainant's particular sensitivity to following all driving safety rules was exploited to harass him, at least in part, because of the animus generated by his prior complaint. Line-of-Fire Training Incident In connection with incident 2, the record shows that senior courier CW7 was in charge of a three-man team during a live fire action training event. ROI, Exhibits F10 and F17. CW7 stated that trainees, including Complainant, were supposed to run straight during the training, not at angles or back and forth. However, he said Complainant twice bounded into the line of fire, which could have caused serious injury since real bullets were being used. ROI, Exhibit 17. S3 stated he gathered statements around August 29, 2011, because he was trying to determine what happened, and anytime an incident like this occurs it is his job as a supervisor to follow up. ROI, Exhibit F10. S10's statement corroborated S3's explanation. ROI, Exhibit F7. While Complainant suggested he did not do anything wrong, this does not tend to show that S3 gathered statements to retaliate against him. ROI, Exhibit F1, at 151. Comment Concerning No One Wanting to Deal with Him Regarding incident 3, Complainant contended that on August 29, 2011, CW7 told him he was being placed on his fire team (which was within their same squad). Complainant stated that CW7 told him that agents in the unit or squad did not want to deal with him because of too much drama surrounding him but he wanted him on his team because he had no problem with him. Complainant continued to be a full member of his squad and the record shows convoy missions were made up of people on varying squads. CW7 denied telling Complainant nobody wanted to deal with him, rather he told Complainant he believed he was placed on his team because the other team leads were involved in his complaints. When asked about the too much drama remark, CW7 stated he did not recall saying this. ROI, Exhibit F17. While we credit Complainant's statement on what CW7 told him since it is generally consistent with the reason for putting him on the fire team, we do not find that the actual fire team placement was retaliatory. Complainant had communicated that he did not want to work with people who were responsible for discrimination against him and who he listed in his prior EEO complaint. ROI, Exhibits F5, at 179 and F1, at 146. Moreover, in Couch v. Department of Energy, EEOC Appeal No. 0120131136 (Aug. 13, 2013), (for events that occurred prior to the fire team placement) the EEOC ordered the Agency to ensure that Complainant be placed on a team with co-workers and supervisors who were not involved in the discriminatory conduct described in complaint 110086AL if he chose the option of staying at his facility rather than moving to another one. Taking the above into account, we decline to fault the Agency for placing Complainant in a group led by someone he had not accused of discrimination and with whom he got along and liked. ROI, Exhibits F17 at 241-42 and F1 at 150. However, CW7's statement to Complainant could reasonably likely deter protected EEO activity. Equipment Inventory As a result of the filing of his previous complaint, Complainant was offered a temporary detail to an Albuquerque area assignment.6 Report of Investigation (ROI) for complaint 110086AL, Exhibits F9 and G24. While the detail was intended to start on August 31, 2011, due to delays in paperwork it was not effective until September 11, 2011. Complainant returned to Amarillo on January 9, 2012. Turning to incident 4, on September 2, 2011, S10, Complainant's third line supervisor asked Unit Commander S2 to inventory Complainant's equipment prior to the detail. Because Complainant's first line supervisor was on leave, and S2 was the acting Deputy Director of Operations in place of S6 who was out, S2 was asked to conduct the inventory. ROI Exhibits F7 and F13. The record shows that management's practice was to conduct equipment inventories when a courier was going to be out for an extended period, which several people indicated meant more than 30 days. ROI Exhibits F7, F13, F17, and F18. Complainant's prior inventory was around July 20, 2011. S10, who at the time he gave his affidavit could not remember if he or someone else ordered the inventory, stated that because Complainant was scheduled for a detail of 90 to 120 days, it was not unreasonable for him to have another equipment inventory. Complainant contended CW12's equipment was not inventoried when he went on training details. But CW12, a courier, stated his training details were one to three weeks. ROI, Exhibit F18. Complainant has not established that the Agency's decision to inventory his equipment had a retaliatory motive. Complainant contended that S2 (who was aware of his prior EEO activity, ROI, Exhibit F13, at 219) conducted the inventory in a harassing manner. He stated that while an inventory typically takes a half hour, S2 inventoried his equipment for two hours. CW7 confirmed that a thorough inventory typically takes 20 to 30 minutes. Complainant stated S2 told him to disassemble all his equipment and read off each serial number, and this is not typically done. Complainant stated that while S2 did not make threatening statements, his behavior was smug and antagonizing. S2 denied prolonging the inventory, but did not rebut Complainant's allegation that it took about two hours. Given the unusual extended length of the inventory, as corroborated by CW7's statement, we credit Complainant's statement that S2 conducted the inventory in a harassing manner. Return from Detail - Computer Room Incident Complainant returned from his detail on January 9, 2012. There are two units in Amarillo, Texas, each with four squads. Complainant was previously assigned to Unit 4, and upon his return was assigned to Unit 3. Within days of his return, issue 6 occurred. Complainant went to Unit 3's computer room to submit a leave request. Because it was full he entered Unit 4's computer room around 8:50 AM. Among those seated in the room were CW2, CW8, and CW13, a courier. After Complainant entered, he said CW2 and CW8 angrily glared at him, their faces got red, CW2 refused to speak to Complainant when he tried to engage him in conversation, and then CW2, CW8, and CW13 got up and left. ROI, Exhibit F1, at 153. CW8 went to S8 around 9 AM. S8 wrote that CW8 said he did not want to be in the same room as Complainant because he had to answer questions about him for the last six to eight months about stuff he did not know about, was tired of this, and did not want to be put in this situation anymore.7 S8 wrote that he told CW8 he understood, retrieved Complainant from the computer room, relayed what CW8 said, and told Complainant that there were people in Unit 4 who needed to use computers but did not want to be around him, and asked him to leave to alleviate concerns and prevent friction between him and other agents and to refrain from using the Unit 4 computer room. ROI, Exhibit F2. Shortly thereafter, S6 who managed Unit 4, learned what occurred. Within 30 minutes he spoke with S8, asked him what happened, and told him he did not have the right to ask Complainant to leave a common area, that it was a government building and there were no private areas. ROI, Exhibit F2. S6 then called Complainant around 10:45 AM, and apologized. ROI, Exhibits F1, at 156 and F4. That afternoon, S6 sent an email to all of Unit 4 that a matter had been brought to his attention regarding the use of Unit 3 and 4 computer rooms. He wrote that regardless of Unit room number designation agents could use either room and should conduct themselves professionally at all times with no instances of feeling uncomfortable around anyone regardless of past grievances. S6 concluded by writing that Unit 4 must stop petty bickering and be willing to work alongside anyone in the building or Office of Secure Transportation. The following Monday, he got everyone together and said it was "bullshit" to get into this petty bickering and instructed them to conduct themselves like adults and not like little kids in the schoolyard. Complainant stated that he went to the computer room once after this incident and all the agents just got up and left. ROI Exhibit F1, at 154. S6 wrote that S8 told him that agents CW2, CW8, and CW13 did not want to be around Complainant because he made EEO allegations against other agents and twisted their words and indicated they believed he may do it again. We find that on January 13, 2012, CW2, CW8, and CW13 shunned Complainant when he was using the Unit 4 computer room, and S8 told him to leave the room and refrain from using it. The record shows all this occurred because agents CW2, CW8, and CW13 did not want to be around Complainant because of his EEO activity, and this was communicated to him non-verbally and verbally in a way to make this understood. There is no question that what occurred, despite S6's efforts, would reasonably likely deter a person from engaging in protected EEO activity. Further, Complainant wrote that when he subsequently used the computer room one other time, agents just got up and left. Complainant has established the actions taken in issue 6 were in reprisal for his EEO activity. Based on the preponderance of the evidence, we find that retaliatory animus over Complainant's prior EEO complaint persisted in the workplace and a number of harassing incidents, as described above, occurred because of this animus and were sufficient to create a continuing hostile work environment for Complainant, particularly when viewed in the larger context of the events of his prior complaint. Once a hostile work environment is found, we must determine whether the Agency should be held liable for its existence. When the harassment is perpetrated by a co-worker, liability is imputed to the employer if it knew or should have known of the misconduct and failed to take immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999) ("Vicarious Liability Guidance"). What is appropriate action will necessarily depend on the facts of the particular case, the severity, and persistence of the harassment, and the effectiveness of any remedial step. Id. An employer 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, 765 (1998); see also Vicarious Liability Guidance. The Agency can raise an affirmative defense when Complainant establishes a prima facie case, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and, (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Id., at Section V. As an initial matter, we find that the retaliatory harassment in this case is a continuation of the harassment found in Couch, EEOC Appeal No. 0120131136, and is part of the same hostile work environment. The harassment was perpetrated by both co-workers and supervisors. In Couch, we found that the record was replete with instances where Complainant complained about the harassment to supervisors throughout his entire chain of command, and in each instance the supervisors failed to address the harassment with immediate and appropriate corrective action. After the incidents in Couch, Complainant continued to complain to management about new harassing incidents. For example, he stated that upon his return from the trip, he complained to his first line supervisor, S3, about the trip, informed him of the unfair practices, and that he was going to file another EEO complaint. ROI, Exhibit A1, at 43. He also complained to his second line supervisor. ROI, Exhibit F4, at 170-71. Complainant complained to S6 about S2 doing the inventory one day after it occurred. ROI, Exhibits F1, at 146 and F4 at 169-70. By email on September 11, 2011, Complainant complained to his first, second, and third line supervisors that his first line supervisor stated he may be disciplined for the open truck door incident. ROI, Exhibits F1 at 151 and F7 at 194. He promptly complained to management about the computer room shunning incident. While S6 took strong action in reaction to the computer room incident, prior to this the Agency did not exercise reasonable care to prevent and correct promptly harassing behavior which had been ongoing since May 2010, and which it had been aware of for a long time. S8 had not been properly instructed on how to handle harassment against Complainant, which led him not to properly handle the situation. We note that in Couch (Aug. 13, 2013), the EEOC ordered the Agency to immediately take meaningful and effective measures to ensure that coworkers and supervisors cease and desist from all discriminatory conduct directed at Complainant, and ensure that he was no longer subjected to retaliation on the bases of his sex and for his participation in protected EEO activity. It further ordered the Agency to provide a minimum of 24 hours of in-person EEO training to all management officials and employees at the facility, with a focus on sex discrimination under Title VII, harassment, and management's responsibilities under Title VII, within 120 days after the decision became final. The Agency was also ordered, among other things, to give Complainant the choice of whether he would like to stay at the facility at issue or be transferred to a similar position in another facility, and if he chose to stay, to be placed on a team with co-workers and supervisors who were not involved in the discriminatory conduct described in his complaint. The Agency did not request reconsideration. All this was ordered after Complainant was shunned on January 13, 2013. In providing relief, we are taking this prior order into account. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM in part and REVERSE in part the Agency's finding of no retaliation. To remedy Complainant for the retaliation found, the Agency shall comply with the following Order. ORDER The Agency is ordered to take the following remedial actions: 1. The Agency shall consider taking disciplinary action against those who perpetrated reprisal against Complainant from August 2011 to January 2012. 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. The Agency shall complete these actions within 120 calendar days after this decision becomes final. 2. The issue of compensatory damages is REMANDED to the agency. On remand, the agency shall conduct a supplemental investigation on Complainant's entitlement to compensatory damages, and afford him an opportunity to establish a causal relationship between the continued harassment and his pecuniary and non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a FAD appealable the EEOC determining the appropriate amount of damages within 150 calendar days after this 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 of that the corrective action has been implemented. The Agency shall send a copy of the report of compliance to Complainant. POSTING ORDER (G0610) The Agency is ordered to post at its Agent Operations Central Command, in Amarillo, Texas 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 September 12, 2014 _____________________ Date 1 We note that in this decision, the abbreviation "CW" connotes a coworker, and "S" connotes a supervisory official. Where an "S" or "CW" is bolded, this means it is the same person cited in our previous appeal decision, Couch, EEOC Appeal No. 0120131136. Hence CW1 is the same person in the previous decision and this decision. 2 While CW5 is a lead courier and Convoy Commander, the record suggests he did not serve as the Convoy Commander for the August 8, 2011 mission. Witnesses referred to S1 as the Convoy Commander, albeit CW5 stated he was in the "chain of command." 3 The Agency defined this inventory as occurring on August 2, 2011. Complainant later clarified it occurred on September 2, 2011. 4 Where the ROI is cited without reference to a complaint number, it refers to the investigation on the instant complaint - 11-0135-AL. 5 We take administrative notice that the MSPB issued an initial decision dismissing without prejudice S1's March 26, 2013, appeal of his February 27, 2013, removal. The decision did not indicate the reasons for the removal. 6 The Agency also ordered mandatory additional EEO harassment training for all Office of Secure Transportation employees, which was scheduled for March 29, 2012. 7 The EEO investigator did not take a statement from CW13, and did not solicit any information from CW2 and CW8 on issue 6. The investigator explained that she did not interview them about the matter because S8 admitted the actions. ROI, Exhibit G28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130468 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130468