Nita H., Petitioner, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency. Petition No. 0320110050 MSPB Nos. AT-0752-09-0860-I-1, AT-0752-09-0860-B-2 DECISION On September 13, 2011, Petitioner filed a timely petition with the Equal Employment Opportunity Commission, asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the reasons stated below, we DIFFER with the MSPB's final order, which found no discrimination. ISSUE PRESENTED The EEOC found a supervisor had engaged in a discriminatory pattern of escalating adverse treatment towards Petitioner from 2006 to 2007, including suspending her for 10 days on August 13, 2007. In 2009, this same supervisor removed Petitioner, based in part on the supervisor's previous disciplinary actions against Petitioner, including the August 13, 2007 10-day suspension. The MSPB determined that the removal was not related to the supervisor's preceding discriminatory conduct and found no discrimination. The issue presented in this decision is whether the MSPB's decision is supported by the evidence in the record as a whole, which includes the evidence and findings from the EEOC case? BACKGROUND Petitioner (African-American) worked as a Fiscal Officer, GS-11, at the Southeast Regional Office of the National Park Service in Atlanta, Georgia. She received the highest performance ratings before a new Southeastern Regional Controller (Caucasian) became her first-level supervisor in November 2005. Davis v. Dep't of Interior, EEOC Hearing No. 410-2009-00062X (Aug. 24, 2010), Dec. 16, 2009 Hearing Transcript (Tr.), at 57. During the supervisor's tenure at the Agency, several African-American employees, including Petitioner, complained about the supervisor's treatment and demeanor towards them. Supervisor's Conduct During Weekly Staff Meetings One African-American budget analyst opined that the supervisor communicated differently between white and black employees, in that she "never chastised [white employees] or humiliated them in front of other employees."1 Davis v. Dep't of Interior, EEOC Hearing No. 410-2009-00062X (Aug. 24, 2010), January 12, 2010 Hearing Transcript, at 132. In contrast, several African-American staff members testified that the supervisor regularly, repeatedly, and harshly criticized Petitioner in front of others during weekly staff meetings. For example, an African-American budget analyst recounted one meeting: [W]e were in a meeting and [the supervisor] asked for suggestions or recommendations. [Petitioner] would give it, and [the supervisor] would . . . kind of tear it down . . . . And then she made a statement that if, you know, she didn't like the way the meeting was going she can get up and leave, so [Petitioner] politely got up and left. Id. at 103. Another African-American budget analyst provided corroborating testimony: When [Petitioner] would inquire about something or make a statement, . . . [the supervisor's] gestures would become defensive and threatening and she would, at times, even slam her hands on, you know, the table. Her tone would change into a disrespectful manner and she would try to humiliate [Petitioner.] Id. at 130. This budget analyst recalled her own verbal encounter with the supervisor on July 23, 2008: [The supervisor] had came to my cubicle in a very confrontational, combative mode and I advised her that she shows disparate treatments between blacks and white. She called me into her office, she yelled. Went behind closed door. And I started listing the various ways that she shows disparate treatment between blacks and whites . . . . And she made the statement, oh, you and I are not equal. . . . I told her that was enough, I considered that a racial comment. . . . [The supervisor started] slamming her fist, wrenching her hand, well, I don't have to answer to you and I don't have to respond . . . . . . . I believe, based on my experience with her, she thinks whites are superior to blacks and that whites should not have to answer to blacks. That we have no rights as black African Americans. We should always be beneath her. Id. at 131-133, 140. Leave Requests, Restrictions, Discipline, and Suspension In early 2006, Petitioner used substantial amounts of sick and annual leave because of medical problems and complications in completing residential construction to take care of her elderly mother. In 2006 and 2007, Petitioner requested several times to take leave without pay, primarily to attend court-mandated proceedings on the residential construction. But the supervisor denied her leave requests. Petitioner felt she had no choice but to attend the court proceedings. As a result, the supervisor placed her in an absence without leave (AWOL) status, restricted her leave, issued her a letter of warning in August 2006 for being absent, and then in July 2007 proposed to suspend her for 5 days for being AWOL. After proposing the 5-day suspension, the supervisor directed Petitioner to meet with her on July 13, 2007. Petitioner wanted an employee relations specialist to attend the meeting, and sought out multiple people. But when no representative was available, Petitioner did not enter the supervisor's office that day. On July 17, 2007, the supervisor doubled the proposed suspension to 10 days for (1) being absent without leave, and (2) "refus[ing] to comply with a proper order" to meet with her. The Associate Regional Director for Administration of the Park Services Southeast Region upheld the 10-day suspension on August 13, 2007. Various staff members testified that the first-level supervisor treated Petitioner differently than a white male employee, who held a position organizationally equivalent to Petitioner and took as much leave as Petitioner. They testified that the supervisor always approved the white male employee's leave requests, did not place him on leave restriction, and did not discipline him for being absent from work when he did not request leave beforehand. One witness, a Caucasian budget analyst, testified in her deposition that the supervisor treated the white male employee preferentially over Petitioner, in that he was "not on leave restriction and he uses just as much leave as [Petitioner] does." May 5, 2008 Deposition, at 27. An African-American budget analyst opined that the white male employee was treated better than Petitioner in that he could simply send an email to the supervisor indicating he was working from home, while Petitioner was not allowed to do the same. January 12, 2010 Hearing Tr., at 138. Denial of Access to Computer Program During Critical Time; Lower Performance Appraisal Each year, around the last week of September, Petitioner and other fiscal officers would go to the Accounting Operation Center to closeout fiscal activities before September 30. At no time would the Accounting Operation Center allow an individual to go past the deadline date. Dec. 16, 2009 Hearing Tr., at 43. In September 2006, Complainant was initially designated to attend the Accounting Operation Center during the closeout period. But after a dispute with the supervisor about whether she would be compensated for work performed outside of normal hours, the supervisor excused Petitioner from going to the Accounting Operation Center and then, without explanation or prior notice, suspended her from accessing the software program for managing the Agency's fiscal affairs, until after the closeout period. After the closeout period ended, the supervisor restored Petitioner's access on October 5, 2006. Then on November 17, 2006, the supervisor gave Petitioner a lower performance rating of "fully successful," based in part on Petitioner's failure to perform all of her duties during the closeout period. Petitioner protested the rating, maintaining that her failure to perform was due to the supervisor suspending her access to the software program. During a discussion about her performance, the supervisor explained that she suspended Petitioner's access to the software system because the supervisor thought Petitioner had made a threat upon learning that she would not be going to the Accounting Operating Center. According to the supervisor, Petitioner stated that the supervisor had no idea how much Petitioner knew about the system and she would be sorry. The supervisor thought Petitioner posed a security risk and that she might try to sabotage that year's closeout. The supervisor also told Petitioner that she was not a team player, and advised her that it would be best if she found another job. Petitioner's Attempts to Apply to a Downgraded Position According to Petitioner, the supervisor continued to tell her multiple times every quarter that she should find another job. Dec. 16, 2009 Hearing Tr., at 85. A Caucasian budget analyst opined that there was a possibility that the supervisor wanted to get rid of Petitioner, "[j]ust because of the things happening in the office . . . . It's almost like it's a handwriting on the wall." May 5, 2008 Deposition, at 25-26. Petitioner attempted to escape the escalating adverse treatment by applying for a GS-9 Budget Analyst position in May 2007. According to the supervisor, Petitioner did not get an interview because she was not among the best qualified applicants, even though Petitioner had previously been a GS-9 Budget Analyst and had received successful performance reviews.2 Protected EEO Activity On November 28, 2006, Petitioner initiated EEO counselor contact, which the supervisor learned about in December 2006. While the EEO matter was pending, Petitioner was subjected to further adverse treatment from the supervisor. Further Discipline and Removal The supervisor twice proposed to remove Petitioner. The first was in April 2008, in part, because Petitioner had been absent without leave, in violation of her August 2006 leave restriction, and had not complied with the supervisor's directives to (1) meet with her to discuss Petitioner's argumentative, aggressive, and unprofessional behavior; and (2) clean out her email inbox immediately after a staff meeting. But the Regional Director reduced the proposed removal to a 30-day suspension on September 10, 2008. The second attempt occurred on May 7, 2009. The supervisor proposed to remove Petitioner for failing to comply with proper directives. Specifically, in March 2009, a park administrative officer requested help to a general Agency email account to do an "internal control assessment." The supervisor directed Petitioner to respond to the request, but Petitioner felt that she did not have sufficient time or resources to accommodate the request. She proposed instead for a GS-12 staff accountant to handle this request. After further discussions, the supervisor directed Petitioner in April 2009 to setup a time with the park administrative officer to lead a compliance audit. Rather than lead the audit herself, Petitioner arranged for someone else to do the audit. The supervisor determined that Petitioner had not complied with her directives to timely contact, coordinate, and help the park administrative officer to do an internal control assessment. The supervisor once again proposed to remove Petitioner, finding it appropriate, given her prior disciplinary history dating back to 2006. On July 8, 2009, the Southeast Regional Director upheld the proposed removal because Petitioner failed to comply with proper directives regarding the request for help on an internal control assessment. To justify the removal, the Regional Director explicitly referenced the history of disciplinary actions management had taken against Petitioner. This included: * a letter of warning on September 26, 2006; * The 10-day suspension on August 13, 2007; and * The 30-day suspension on September 10, 2008. The removal became effective on July 18, 2009. Petitioner challenged her removal by filing a mixed case appeal with the MSPB. Merit Systems Protection Board (MSPB) In a mixed case, a federal employee alleges that an agency personnel action appealable to the MSPB was based on unlawful discrimination otherwise subject to EEOC jurisdiction. In these cases, the employee must choose whether to pursue a "mixed case complaint" through the federal sector EEO process administered by EEOC, or a "mixed case appeal" subject to MSPB jurisdiction in the first instance. Here, Petitioner filed a "mixed case appeal." A "mixed case appeal" is an appeal filed directly with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability, age, genetic information, or reprisal. 29 C.F.R. § 1614.302(a)(2). Appealable agency actions include removals. See, e.g., Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 4: Procedures for Related Processes, Appendix I: Appealable Actions-5 C.F.R. (rev. Nov. 9, 1999). In her mixed case appeal, Petitioner alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when it removed her. Initially, the MSPB Administrative Judge (MSPB AJ) struck the bases of race and sex from the proceedings on the grounds that Petitioner failed to allege facts, which, if proven true, would establish a prima facie case of race and sex discrimination. The MSPB AJ held a hearing on the basis of reprisal, and in November 2009, issued an initial decision that upheld Petitioner's removal. MSPB AJ's Initial Decision on Reprisal Discrimination The MSPB AJ first articulated the "convincing mosaic" evidentiary standard for proving retaliation: To show retaliation using circumstantial evidence, an appellant must provide evidence showing a "convincing mosaic" of retaliation against her. A mosaic is a work of visual art composed of a large number of tiny tiles that fit smoothly with each other, a little like a crossword puzzle. "A case of discrimination can likewise be made by assembling a number of pieces of evidence none meaningful in itself, consistent with the proposition of statistical theory that a number of observations each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all point in the same direction: 'a number of weak proofs can add up to a strong proof.'" As a general rule, this mosaic has been defined to include three general types of evidence: (1) evidence of suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of retaliatory intent might be drawn; (2) evidence that employees similarly situated to the appellant have been better treated; and (3) evidence that the employer's stated reason for its actions is pretextual. Where an employer's motives or state of mind are relevant, the record must be carefully scrutinized for circumstantial evidence that would support an inference of retaliatory animus. Furthermore, to establish that the employer's stated reason for taking a personnel action was a pretext for unlawful discrimination, it is insufficient to show that the stated reason was not the real reason; the employee must show that the real reason for the action was unlawful discrimination. (citations omitted) Then, the MSPB AJ found that Petitioner had failed to comply with a series of proper directives to timely contact, coordinate, and help a park administrative officer do an internal control assessment. Next, the MSPB AJ determined that Petitioner failed to establish discrimination on the basis of reprisal for prior EEO activity. Finally, the MSPB AJ found the removal to be reasonable because of Petitioner's prior history of discipline for failing to comply with proper orders, including the August 13, 2007, 10-day suspension, and the September 10, 2008, 30-day suspension. Petitioner sought review by the full Board. EEOC Administrative Judge's Decision Finding Discrimination While the review of the mixed case was pending before the full Board, an EEOC Administrative Judge (EEOC AJ) issued a decision on Petitioner's harassment case,3 finding that management had subjected Petitioner to hostile work environment harassment on the bases of race (African-American), sex (female), and reprisal for prior EEO activity for incidents that occurred from 2006 to 2007, including disciplinary actions such as the August 13, 2007 10-day suspension. The EEOC AJ determined that the first-level supervisor engaged in a pattern of escalating adverse treatment towards Petitioner that extended over a protracted period. At first, she subjected Petitioner to adverse treatment on the basis of race, in that the first-level supervisor treated Petitioner differently than a similarly situated white male employee, by restricting Petitioner's leave, intensely scrutinizing and criticizing her work, and excessively disciplining her. [The supervisor] used Complainant's absence during the period when she was legally required to appear in court as a basis for marking her AWOL and suspending her for 10 days. [The supervisor] testified that she did not approve the leave because Complainant had failed to provide adequate documentation. But when the Agency was presented with documentation from Complainant's counsel in her civil lawsuit that provided justification for her absence, the Agency inexplicitly refused to revoke or modify the 10 day suspension. This suggests that it was searching for a pretext to discipline Complainant. The evidence established that [the supervisor] initially was prepared to issue Complainant a proposed five day suspension, but when Complainant requested representation and was unable to secure a representative to be present when she met with [the supervisor], [the supervisor] then used Complainant's failure to meet with her that day as a basis for doubling the duration of the suspension. The EEOC AJ found the supervisor to not be credible in explaining why she suspended Petitioner's access to the Agency's fiscal software system during the closeout period in September 2006 and gave her a lower performance review: While I find [the supervisor] not credible and Complainant's explanation of what she said to be more accurate, even the statement that [the supervisor] attributes to Complainant could just as readily be interpreted to mean that [the supervisor] would regret the loss of Complainant's expertise during the close out period . . . . The Agency was unable to identify anything in Complainant's conduct or history that suggested in any way that she posed any actual threat if she were permitted to continue the computer access she had enjoyed without incident for the prior six years. Rather, [the supervisor's] excessive reaction appears to [be] evidence [of] a discriminatory mind set on her behalf. Furthermore, [the supervisor] then used purported deficiencies in Complainant's performance during the lockout period to mark down her evaluation. The EEOC AJ found that the first-level supervisor escalated the adverse treatment against Petitioner after she protested and initiated EEO counselor contact. For example, the EEOC AJ found the supervisor to lack credibility in explaining why Petitioner's requests to be downgraded to a GS-9 position could not be fulfilled. When Complainant was faced with a pattern of escalating adverse treatment by [the supervisor], she requested on several occasions that she be permitted to step back from her supervisory position and revert to the position she had previously held. If [the supervisor] had been legitimately concerned about Complainant's absences or any legitimate performance issues, she should have jumped at Complainant's offer. Instead, she repeatedly rejected it. And when the position was competitively announced and Complainant applied for it, Complainant inexplicably failed to rank among the top candidates. . . . The Agency failed to articulate a legitimate non-discriminatory reason why Complainant, who had always received fully satisfactory or better ratings and had been promoted to her position before [the supervisor] became the Comptroller, was not among the best qualified candidates who were interviewed for the GS-9 position that she held prior to her promotion. The sole explanation the Agency offered was this was how the panel works. The Agency accepted the EEOC AJ's findings of discrimination and did not appeal the decision to the Office of Federal Operations. MSPB AJ's Supplemental Decision on Race and Sex Discrimination The full Board sustained the charge of failure to comply with proper directives, as well as the MSPB AJ's finding that Petitioner failed to establish reprisal discrimination. But the Board remanded the race and sex discrimination bases for a hearing.4 On remand, Petitioner submitted the record evidence from the EEOC proceeding, along with the EEOC AJ's decision finding that the same management officials in this matter had subjected her to hostile work environment harassment from 2006 to 2007 on the bases of race, sex, and reprisal. She then withdrew her request for a hearing. On July 11, 2011, the MSPB AJ issued a supplemental initial decision and found no race or sex discrimination. In considering the testimony, record, and findings from the EEOC administrative proceeding, the MSPB AJ gave little weight to the EEOC AJ's credibility determinations. Instead, the MSPB AJ found the first-level supervisor to be credible, based on her demeanor and consistency with other witnesses during the MSPB hearing on reprisal discrimination. Furthermore, the MSPB AJ attached no significance to the previous EEOC AJ's finding of discrimination, reasoning that the present removal (2009) was unrelated and too far removed from the 2006-2007 discriminatory matters considered by the EEOC AJ. And even though the MSPB AJ acknowledged that the Agency should not have used the discriminatory August 13, 2007 10-day suspension to support the removal action, the MSPB AJ nevertheless found the removal to be reasonable because the Agency's table of penalties permitted removal for even one offense of failure to comply with a proper directive, and the failure in 2009 constituted Petitioner's second offense (counting the 30-day suspension in September 2008). CONTENTIONS ON PETITION FOR REVIEW In her petition for review, Petitioner challenges the MSPB AJ's formulation of the "convincing mosaic" evidentiary standard for establishing reprisal discrimination. Petitioner maintains that the MSPB AJ's characterization of the "convincing mosaic" standard for proving causation strongly suggests a standard of proof that is greater than the "preponderance of the evidence" burden required to prove Title VII claims. Petitioner urges the EEOC to reject the MSPB AJ's formulation of the "convincing mosaic" standard. Petitioner argues that under the traditional, correct standard, the evidence from the EEOC and MSPB cases establish, more likely than not, that the first-level supervisor removed Petitioner based on a discriminatory or retaliatory motive. From May 2006 onward, the first-level supervisor demonstrated a pattern of extreme hostility and harsh discriminatory actions towards Petitioner: placing her on AWOL for dealing with a personal emergency and for attending court hearings; accusing her of threatening to sabotage a government computer system; humiliating her in front of coworkers; retaliating against her by suspending her for 10 days in 2007; repeatedly telling her to find a job elsewhere; and attempting to remove her on a prior occasion. Given this history between the supervisor and Petitioner, the supervisor's second and successful attempt to remove Petitioner was a continuation of the supervisor's pattern of extreme hostility and discriminatory harsh action on the bases of race, sex, and retaliation. Petitioner's underlying conduct was not as egregious as the supervisor portrayed, and did not warrant removal. While there was a dispute between the supervisor and Petitioner over who should provide the requested assistance, Petitioner expressly stated to the supervisor before her removal had been proposed that she did not intend to be uncooperative, but just had conflicting assignments. And the individual who requested the support told her it was acceptable to postpone the assistance. Moreover, Petitioner argues that a development, in her EEOC litigation, provoked or stoked retaliatory animus in the supervisor and motivated the removal. Specifically, on April 22 and 28, 2009, the supervisor emailed Petitioner regarding discovery requests for the EEOC case. This coincided with Petitioner's attempts to clarify who should provide the requested assistance. Then on May 7, 2009, the supervisor allegedly told Petitioner that Agency Counsel had contacted her about the status of discovery responses in her EEOC case; later that same day, the supervisor proposed to remove Petitioner. The Agency maintains that the Commission has essentially held that the "convincing mosaic" standard is a correct interpretation of the laws, rules, regulations, and policies governing Title VII reprisal cases, because it has previously concurred, without comment, prior MSPB decisions that applied the "convincing mosaic" standard. In addition, the Agency argues that the record supports the MSPB AJ's decision, finding no discrimination. And even if management officials should not have relied on its past discriminatory disciplinary actions to justify removing Petitioner, they still would have been justified in removing Petitioner, based solely on this one incident on failure to follow management directives. ANALYSIS AND FINDINGS Standard of Review EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. Upon review, the Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). Standard for Proving Retaliation in Federal Sector Cases We shall clarify the Commission's view about the "convincing mosaic's" role in federal sector retaliation cases. The anti-retaliation provisions make it unlawful to discriminate against any individual because he or she has complained, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under the employment discrimination statutes. Recently, in EEOC Appeal Nos. 0120120901, 0120123038 (Dec. 2, 2013), the Commission specified what a petitioner must generally do to prove retaliation: To prevail, Complainant must prove by a preponderance of the evidence that (1) she engaged in protected activity; (2) was subject to an . . . adverse action; and (3) there was a causal nexus between the two. The causal nexus requires a showing that retaliation for her prior protected activity more likely than not caused the challenged actions . . . . While the causal connection may be proved directly by evidence that on its face shows or admits retaliatory motive, it is more typically demonstrated by what one appellate court has described as a "convincing mosaic" of circumstantial evidence that would support the inference of retaliatory animus. Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (citation omitted). The pieces of that "mosaic" may include, for example, suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer's proffered reason for the adverse action, or any other "bits and pieces" from which an inference of retaliatory intent might be drawn. Id. "The law is well-established that the internal inconsistencies, implausibility, or contradictions in an employer's explanation of the challenged employment decision may be evidence of pretext for discrimination or retaliation." Conroy v. Vilsack, 707 F.3d 1163 (10th Cir. 2013) (quoting Rivera v. City and County of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (finding that inconsistencies among panel members' recollections of the rating system used for the selection process was insufficient to demonstrate pretext)). The genesis of the "convincing mosaic" term was borne out of a concern that the traditional dichotomies of "direct" and "indirect" methods of proof, as well as "direct" and circumstantial evidence, were somewhat formalistic and rigid5 when considering the myriad types of evidence in employment discrimination cases. The term "convincing mosaic" was coined in Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 1994) (J. Posner), "where it was used, innocently enough, to describe the 'kind of circumstantial evidence . . . that consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff.'" Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir. 2006) (J. Posner). "But it was not the intention in Troupe to promulgate a new standard, whereby circumstantial evidence in a discrimination or retaliation case must . . . have a mosaic-like character." Id. at 904. To the Commission, the "convincing mosaic" is a useful way to describe how several facts may add up to sufficient evidence to discredit an employer's explanation and demonstrate a causal connection between the prior protected activity and the challenged adverse action. Our discussion of the "convincing mosaic" in EEOC Appeal No. 0120120901 was meant to convey an additional, flexible way for plaintiffs to use different "bits and pieces" of circumstantial evidence to prove the causal connection between the adverse action and the protected conduct in retaliation cases. We did not intend to either promulgate a new standard, whereby circumstantial evidence in retaliation cases "must" have a mosaic-like character, or require plaintiffs to meet a more demanding evidentiary standard. Nor did we intend to state a preference for one evidentiary framework over another. All we intended to convey was this: under certain evidentiary scenarios, the "convincing mosaic" can serve as a useful option for establishing the causal nexus in retaliation cases. Therefore, we determine that the MSPB AJ erred in insisting that petitioners "must" provide evidence showing a "convincing mosaic" of retaliation in order to prove retaliation using circumstantial evidence. Our view is that when an employer in a federal sector case identifies a lawful reason for an adverse action, the employee will have to produce enough evidence to either discredit the employer's explanation or prove that the real reason was retaliation.6 One way that the employee "may" discredit the defendant's explanation and demonstrate a causal connection between the prior protected activity and the challenged adverse action is by presenting a "convincing mosaic" of circumstantial evidence that would support the inference of retaliatory animus. The pieces of that "mosaic" may include a variety of types of evidence, such as suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer's proffered reason for the adverse action, or any other "bits and pieces" from which an inference of retaliatory intent might be drawn. Cloe, 712 F.3d at 1181. Harassment by Supervisor: Link Between Harassment and Tangible Employment Action Whenever a harassing supervisor undertakes or has significant input into a tangible employment action affecting the victim,7 a strong inference of discrimination will arise because it can be "assume[d] that the harasser . . . could not act as an objective, non-discriminatory decision maker with respect to the plaintiff." Llampallas v. Mini-Circuit Lab, Inc., 163 F.3d 1236, 1247 (11th Cir. 1998). But if the employer produces evidence of a non-discriminatory reason for the action, the employee will have to prove that the asserted reason was a pretext designed to hide the true discriminatory motive. See Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999). For guidance on how to consider the record evidence in this case, we turn to Harmon v. U.S. Postal Serv., EEOC Petition No. 03980004 (Aug. 5, 1999). In Harmon, an EEOC AJ found in 1998 that a manager had made sexually harassing comments and innuendos to the petitioner, starting with her arrival in 1993. In 1995, the manager subsequently demoted the petitioner, on the grounds that she advertised and sold Primerica insurance on Agency premises. After an MSPB AJ sustained the agency's action, the Commission reviewed the decision. The Commission found that the petitioner's demotion was unrelated to the manager's sexual harassment discrimination because the manager did not have significant input in the petitioner's demotion. Other management officials had alerted the Agency about the petitioner's possible misconduct, initiated and conducted the investigation, and decided to demote the petitioner. Therefore, the Commission in Harmon found that the petitioner failed to show a nexus between the manager's sexual harassment and the disciplinary action taken against petitioner. Here, the Agency stated that it removed Petitioner because her failure to comply with the first-level supervisor's directives regarding the request for a control assessment was the latest in a series of failures dating back to 2006, which resulted in an extensive history of disciplinary actions, including an August 13, 2007 10-day suspension. We find the Agency's articulated reason to be illegitimate and discriminatory, in that the Agency explicitly relied on the supervisor's preceding harassing conduct (including disciplinary actions such as the August 13, 2007 10-day suspension) to justify removing Petitioner. Supervisors are not allowed to use their past discriminatory actions as a basis for subjecting their victims to new adverse actions. Therefore, we differ with the MSPB AJ and find that the evidence clearly establishes a nexus between the first-level supervisors's preceding harassing conduct and her subsequent removal of Petitioner. This is not to say that a supervisor, who has previously been found to have discriminated against an employee, can never discipline, demote, or discharge the employee in the future. Discipline, demotion, and discharge decisions are typically based on either employee misconduct or unsatisfactory work performance. While neutral rules and policies regarding discipline, demotion, and discharge generally do not violate Title VII, they must be enforced in an evenhanded manner, without regard to prohibited factors, such as race, sex, or prior EEO activities. But here, there is little evidence that the first-level supervisor was disposed to enforce the Agency's rules on discipline and removal in an objective, evenhanded, and non-discriminatory manner with respect to Petitioner. For years, she publicly belittled Petitioner in weekly staff meetings, and consistently treated Petitioner worse than a white employee with regard to leave. She did not conceal her desire to be rid of Petitioner, in that she told Petitioner numerous times to find a new job. She refused Petitioner's requests to be downgraded in position in order to escape the harassment. She excessively and unjustifiably disciplined Petitioner for failing to follow her "directives," no matter how trivial or erratic8 they could be, whether it was shortening the duration of Petitioner's recorded voicemail greeting or immediately clearing her inbox after a staff meeting. And she twice tried to use her discriminatory disciplinary actions as a means for removing Petitioner. There was no evidence that the first-level supervisor noticeably shed her preexisting discriminatory attitudes or improved her conduct towards Petitioner, between the time she discriminated against Petitioner in 2006 and 2007 and the subsequent times she disciplined and removed Petitioner in 2008 and 2009. The testimony from Petitioner and another African-American colleague indicate that the supervisor, as recently as July 2008, continued to privately verbalize negative attitudes about African-Americans. And unlike the harassing manager in Harmon, the harassing supervisor here undertook and had significant input into removing Petitioner. The Agency never undertook corrective actions or other remedial measures to stop the supervisor's harassment and ensure it would not recur.9 Because the supervisor discriminatorily harassed Petitioner in 2006 and 2007, because the supervisor showed no signs of noticeably improving her behavior or shedding her preexisting discriminatory attitude toward Petitioner and instead continued to engage in similar types of discriminatory acts in 2008 and 2009, because the harassing supervisor did not undergo any corrective actions or remedial measures that would ensure that the harassment would not recur, and because the supervisor explicitly relied on her past discriminatory actions to justify removing Petitioner, we find that the subsequent disciplinary and removal actions taken against Petitioner in 2008 and 2009 were related to the previous hostile work environment harassment in 2006 and 2007 and were discriminatorily motivated.10 CONCLUSION Based upon a thorough review of the record, the Commission respectfully DIFFERS with the final decision of the MSPB's finding no discrimination. The Commission finds that the MSPB's decision constitutes an incorrect interpretation of the laws, rules, regulations, and policies governing this matter, and is not supported by the evidence in the record as a whole. PETITIONER'S RIGHT TO FILE A CIVIL ACTION (V0610) Your case is being referred back to the Merit Systems Protection Board for further consideration and the issuance of a new decision. You will have the right to file a civil action in the appropriate United States District Court, based on the new decision of the Board: 1. Within thirty (30) calendar days of the date that you receive notice of the decision of the Board to concur in this decision of the Commission; or, 2. If the Board decides to reaffirm its original decision, within thirty (30) calendar days of the date you receive notice of the final decision of the Special Panel to which your case will then be referred. You may also file a civil action if you have not received a final decision from either the Merit Systems Protection Board or the Special Panel within one hundred and eighty (180) days of the date you filed this Petition for Review 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. 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat _7/16/14_________________ Date 1 Besides communicating differently between white and black employees, this budget analyst maintained that the supervisor gave out higher cash awards to white employees (approximately $2500 for white employees versus $750 to $850 for black employees in 2007) and would only publicly recognize the work of white employees. Id. at 132, 139. 2 Separately, Petitioner testified that on October 4, 2006, when Petitioner and the supervisor together were reviewing job applications for a GS-7 position, the supervisor read the qualifications of an applicant named Kamika, and commented: "I hope you don't take this as racist . . . but I don't understand why anyone would want to list their experience of having . . . black hair care products and experience in natural hair products. . . . [T]his application, I wouldn't even give a second look. . . . [I]f you hire this person, I would have a problem with that." Dec. 16, 2009 Hearing Tr., at 81-82. 3 Davis v. Dep't of the Interior, EEOC Hearing No. 410-2009-00062X (Aug. 24, 2010). 4 Davis v. Dep't of the Interior, 2010 M.S.P.B. 161 (Aug. 5, 2010). 5 See, e.g., Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012)(J. Wood, concurring). 6 In the Commission's view, the "but for" standard ("but for" its retaliatory motive, the employer would not have taken the adverse action, meaning that the retaliatory motive made a difference in the outcome) does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not employ the "because of" language on which the Supreme Court based its holdings in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. § 623). These federal sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. § 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. § 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin"). 7 The link could be established even if the harasser was not the ultimate decision maker. See, e.g., Shager v Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (noting that committee rather than the supervisor fired plaintiff, but employer was still liable because committee functioned as supervisor's "cat's paw"), cited in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 2269 (1998). 8 One African-American budget analyst testified that the first-level supervisor had an erratic management style: I'm really not sure how to describe her management style. It's kind of all over the place. She either wanted to know what you were doing or she didn't follow up with it to find out what you were doing or she may leave you responsible for doing certain things. It's just too much going on. Davis v. Dep't of Interior, EEOC Hearing No. 410-2009-00062X (Aug. 24, 2010), Jan. 12, 2010 Hearing Tr., at 109. 9 Examples of measures to stop harassment and ensure that it does not recur include: oral or written warning or reprimand; transfer or reassignment; demotion; reduction of wages; suspension; discharge; training or counseling of harasser to ensure that he or she understands why his or her conduct violated the employer's anti-harassment policy; and monitoring of harasser to ensure that harassment stops. Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999). 10 An employer is always liable for harassment by a supervisor on a prohibited basis that culminates in a tangible employment action. No affirmative defense is available in such cases. See Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC No. 915.002 (June 18, 1999). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0320110050 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 2 0320110050