Leisa C., Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency. Appeal No. 0120132212 Hearing No. 570-2012-00360X Agency No. EUFY11125 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's May 2, 2013, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES the final order which found that Complainant failed to show that she was subjected to discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal at the Agency's Vicenza Elementary School in the Mediterranean. On August 12, 2011, during the European Administrator's Conference in Frankfurt, Germany, the District Superintendent (DS) (female, 65 years old, American, and prior EEO activity), made derogatory comments about Turkish people and stated, among other things, that "EEO's are crap. Here's what happens. They won't win because there's nothing to support it. They'll drop it because they don't have evidence and don't want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don't be afraid of EEO's. They'll go away." On October 12, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of national origin (American), sex (female), age (73), and reprisal for prior protected EEO activity when the District Superintendent made her discriminatory comments. Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for summary judgment and Complainant filed a motion in response. The AJ granted the Agency's motion. The AJ noted that there were no material facts at issue. The AJ found that Complainant failed to state a claim because she failed to demonstrate that she was aggrieved. The AJ noted that Complainant was not Turkish, and nor was the speaker speaking directly to Complainant regarding her EEO matters. Notwithstanding, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the DS's statements were broad statements made to assure managers that they could take disciplinary action, and her comments regarding the EEO process, were made not to discourage potential complaints but were used to empower managers to take action without fear of an EEO complaint. The AJ found that other than Complainant's conclusory statements, she failed to show that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that DS's statements could have a "chilling effect" and were likely to deter a manager from filing an EEO complaint and fully exercising their EEO rights. Complainant argues that the words said by DS were a per se violation because of their potential chilling effect on EEO complaints, present and future. Complainant asserts that it is intolerable for an administrative chief responsible for a large organization to publicly denounce the EEO system. In response, the Agency maintains that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. Further, the Agency maintains that the discussion by DS related to manager's being able to take remedial action without fear of EEO complaints. The Agency requests that the final order be affirmed. ANALYSIS AND FINDINGS After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to REVERSE the Agency's final order. Although we agree with the AJ that the material facts of this case are not in dispute and this matter is ripe for summary disposition, i.e., an administrative hearing was unnecessary, we find the AJ erred in finding that Complainant failed to establish that she was subjected to unlawful retaliation. The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998); Burlington Northern and Santa Fe Railway Co. v White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process). 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. Department of the Army, EEOC Request No. 05970584 (October 8, 1998) (complainant told that filing an EEO suit was the 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. Department of the Army, supra; Woolf v. Department 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. United States Postal Service, EEOC Appeal No. 0120072908 (August 3, 2009), request to reconsider denied, EEOC Request No. 0520090654 (December 16, 2010) (per se violation found where supervisor during an employee meeting referenced that EEO complaints had been filed and 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. In the instant case, we find that DS's statements were reasonably likely to either deter Complainant or any of the other managers who were present from either personally engaging in the EEO process or to keep them from carrying out their obligations to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity.1 The Agency is strongly reminded that there is no place for this type of behavior from any manager of the federal government. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final order regarding this complaint, and REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency, within one hundred and twenty days (120) of this decision becoming final, is ORDERED to take the following action: 1. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below. 2. The Agency is directed to conduct eight 8 hours EEO training for DS. The training shall address management responsibilities with respect to eliminating discrimination in the Federal workplace with a special emphasis on the anti-retaliation provisions of the EEO laws. 3. The Agency shall consider taking appropriate disciplinary action against DS. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If DS has left the Agency's employ, the Agency shall furnish documentation of her departure dates. 4. The Agency shall post the attached notice. 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 the Agency's decision regarding compensatory damages, including evidence that the corrective action has been implemented. 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. POSTING ORDER (G0610) The Agency is ordered to post at its Vicenza Elementary School facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. §16l4.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - not to the Equal Employment Opportunity Commission, Office of Federal Operations - within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. §1614.501. 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). COMPLAINANTS RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 __11/8/13________________ Date 1 The logical interpretation of DS' comments is that a manager should not be afraid of an EEO complaint filed by an employee, and that, he or she, can feel free to take whatever action they want because any allegation of discrimination will simply "go away" having not been proven because the complainant will not have the evidence or resources to proceed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132212 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132212