David Feder, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0720110014 Hearing No. 520-2008-00413X Agency No. F-07-6268 DECISION Following its December 27, 2010, final order, the Agency filed an appeal, which the Commission accepts according to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order. ISSUES PRESENTED 1. Whether Complainant should be considered an employee for purposes of filing an EEO complaint against the Agency. 2. Whether Complainant's EEO counselor contact was timely. 3. Whether the Agency's removal of Complainant for engaging in protected EEO activity constituted direct evidence of discrimination. 4. Whether the Agency is liable for the discrimination under the "Cat's Paw" theory. 5. Whether the Agency established by clear and convincing evidence that it would have removed Complainant even absent the discriminatory factor. BACKGROUND Complainant worked as a contract linguist at the Agency's New York field office, listening to foreign language tape recordings and translating them into English. As a Holocaust survivor, he lived with a health condition called hyperacusis, which made him overly sensitive to certain sounds that caused him pain, distraction, and disruption. During his time under various Agency supervisors, Complainant told them that he was very sensitive to loud noises and frequently asked them to move him to quieter areas. The supervisors tried to accommodate him by (1) allowing him to move his workstation, and (2) work on the weekends, when the office was quieter with fewer people. Water Fountain Noise While working on Saturday, December 3, 2005, Complainant was disrupted by the sound of a water fountain motor. According to Complainant, he asked a female coworker who was using the water fountain to use a different one. The female coworker had a different account of the incident. On December 4, 2005, she alleged that Complainant had harassed her, by repeatedly following her around and staring at her each time she went to the water fountain. According to the female coworker, Complainant yelled at her for using the water fountain and told her she was not allowed to use it again. He allegedly said, "Don't disagree with me, don't fight with me, I am physically much stronger than you," and then raised both his arms to show her his "muscle." Complainant denied the female coworker's allegations. Lounge Incident About two months later, while working on Saturday, January 21, 2006, Complainant became involved in another incident with the female coworker and others. That morning, according to Complainant, he saw four coworkers sitting in the lounge area for about 45 minutes. He thought it was inappropriate for them to take such a long morning break, so he looked at the clock and then back at the four coworkers, and gestured as if he was writing in a notebook to report on them. Later during lunchtime, he returned to the lounge, and one of the four coworkers asked him why he had been staring at them. This coworker, a male, then allegedly said, "If you continue staring at us, I'm going to beat the shit out of you." Complainant left the room. The coworkers complained to their supervisors about Complainant's behavior on January 21, 2006. Prohibition on Working Weekends The Regional Program Manager, who had previously supervised Complainant but was now on a temporary assignment for headquarters (while still physically located at the New York field office), recommended that Complainant be removed from work until the harassment allegations were adjudicated. Complainant's first-level supervisor had doubts about the female coworker's stories, and believed that it would be unfair to take one person's word about what happened on the weekends when no supervisors were around. The first-level supervisor thought it would be better to not allow the linguists to work on the weekends for a while, so that the supervisors could personally observe what was going on between Complainant and the other linguists. Therefore, the first-level supervisor instructed Complainant to not work on the weekends for six weeks in order to give the supervisors an opportunity to address the coworkers' allegations of harassment and observe their interactions. But, on Saturday, January 28, 2006, Complainant came into work, believing he had to work additional hours to fulfill the weekly work requirements of his contract. The following Monday, the first-level supervisor learned that Complainant had come into work on Saturday, after being told not to do so. Initial Electronic Communication Because Complainant had ignored his instructions, the first-level supervisor drafted an "electronic communication" to the Contract Linguist Unit (CLU) of the Intelligence Directorate. The electronic communication alleged that Complainant had engaged in unprofessional misconduct, and requested that the unit adjudicate the matter. The first-level supervisor testified that the Regional Program Manager reviewed the draft of the electronic communication and added two bullet points (5 and 6). Hearing Transcript, at 463-465. The first-level supervisor accepted the additional bullet points because he trusted the manager's judgment: the manager had interviewed and hired the first-level supervisor. Id. at 467-468. According to the first-level supervisor, "[The Regional Program Manager] was the boss in New York and then he took a headquarters position. So his title changed, but people still went to him. And when he made a recommendation, they saw it as a lawful order." Id. at 472. Agency officials in the New York field office subsequently approved the edited version and sent it to the Contract Linguist Unit on January 30, 2006. The January 30, 2006 electronic communication provided: [Complainant] has a documented pattern of unprofessional behavior, recurring aggressive behavior toward fellow employees, noncompliance with management requirements, and: 1. Despite numerous requests, [Complainant] has continued speaking to employees in an aggressive and threatening manner; 2. Despite agreeing to specified working hours of Monday to Friday from 8:15a - 4:45p with no opportunity to work weekends, he showed up for work on an unauthorized time and day, remaining there all day; 3. Despite numerous requests in written and oral form, [Complainant] continues to police the work space for violators of rules and regulations, rather than performing his contracted tasks; 4. He is often insubordinate and defiant instead of resolving disagreements in a professional manner; 5. Claiming to be extremely sensitive to noise, [Complainant] has become belligerent and disrespectful to others who allegedly create noise, regardless of the others intent or work setting. 6. [Complainant] has had his personal work space moved numerous times in order to avoid the peripheral noise created in the normal course of business. 7. On numerous [occasions, Complainant] has asked for the support of other Contract Linguist and Language Analysts to undermine the authority of management. The electronic communication went on to note that Complainant was intolerant of noise and unreasonable as to its cause; he complained to his supervisor about inconsiderate women who wore shoes that bothered him when they walked by his cubicle; he reacted in an aggressive or threatening manner to an employee who was using a drinking fountain. Such conduct created a hostile environment that undermined the teamwork, collegiality, and professionalism of the Foreign Language Program. Escorted Out of the Building On February 1, 2006, the first-level supervisor instructed Complainant to place his credentials into a box, and the Agency's uniformed police escorted him out of the building. Regional Program Manager's Correspondence and Discussions with Other Officials; Initiation of Investigation On April 18, 2006, the Regional Program Manager sent an email: Would it be possible to look into [Complainant's] case and see whether we can give him a "cure letter" and cal[l] him back? I am not sure that his con[d]uct merits a final goodbye at this point and if we intended to teach him a [v]aluable lesson, I am sure he has learned it by now. I just never expected this thing to drag on for so long. The following day, the official who would eventually adjudicate the matter and decide to remove Complainant, responded by email: Per a recent discussion with [the Regional Program Manager], we request that [an Agency official] prepare a "cure" letter for [Complainant], with the understanding that any future misstep will result in his dismissal and termination of his contract. Nevertheless, on April 20, 2006, after his supervisor informed him to continue the investigation, the eventual deciding official issued a memorandum to begin a formal inquiry into the allegations of misconduct. The memorandum requested the New York field office to investigate the following "areas of concern": * Unprofessional behavior * Recurring aggressive behavior toward employees * Non-compliance with management requirements. Under the area of "recurring aggressive behavior," the memorandum recounted the electronic communication's allegation that Complainant had (1) continued to speak to employees in an aggressive or threatening manner, and (2) claiming to be sensitive to noise, became belligerent and disrespectful to others who allegedly created noise, regardless of others' intentions or work setting. The memorandum directed the New York field office to question any employee who witnessed Complainant' aggressive behavior and ask them to describe the time, place, and nature of the aggressive behavior. In an April 28, 2006 email, the Regional Program Manager informed the eventual deciding official that he had "briefed" Complainant's first and second-level supervisors about their options: In [Complainant's case], I encouraged them to think about balancing a variety of issues and come up with [a] solution that is both fair to [Complainant] and takes the interests of the Bureau into consideration. They will discuss the issue with their management and they will make a determination on whether to bring [Complainant] back until final adjudication. First Congressional Inquiry Complainant asked his congressman to inquire about his job status. On June 21, 2006, the Agency wrote that the adjudication unit had required the field office to investigate the misconduct allegations before preparing a final adjudication. The Agency anticipated that the field office would finish the investigation around June 30, 2006, and that the Agency would make a final adjudication within five business days of receiving the investigatory interviews. Investigation In June and July 2006, an investigator interviewed Complainant's coworkers and his current and former supervisors (including the Regional Program Manager). The investigator never interviewed Complainant. Then on August 14, 2006, the investigator issued his report. It first recounted the seven incidents or patterns of misconduct specified in the initial electronic communication, and then noted that "the above listed allegations were investigated during the interviews conducted in furtherance of this investigation." The report recounted the investigator's interview of the Regional Program Manager: [T]he only problem [the manager] is aware of with [Complainant] is that [Complainant's] desk has been moved on several occasions due to [Complainant's] constant complaining about extreme sensitivity to noise. [The manager] believes that this noise sensitivity is the result of psychological trauma [Complainant] suffered at a young age. [Complainant's] parents were both killed in the Nazi Holocaust, and [Complainant] was placed in a children's internment camp. [The manager] believed that [Complainant] was professionally competent . . . . [The manager] does not have any personal grievances against [Complainant.] Although [the manager] found [Complainant] to be an annoying person due to his numerous complaints, he was an extremely interesting person to talk to. The investigator also interviewed Complainant's second-level supervisor, who stated: [Complainant] was grumpy and ornery and was never satisfied with his working conditions, but she personally liked him. They would occasionally have disagreements while [she] was his supervisor where [Complainant] would raise his voice, but this was not out of the ordinary. There were never any lingering hard feelings as a result of these disagreements. The investigator ultimately concluded in his report: "New York is of the opinion that the facts of the investigation support the allegations cited by [Complainant's first-level supervisor.] New York further finds, by a preponderance of the evidence, that [Complainant] has engaged in a pattern of misconduct, and that the misconduct is egregious enough to warrant termination of [Complainant's] contract." When Complainant's annual contract was up for renewal in September 2006, the Agency let the contract expire. Additional Congressional Inquiries Complainant asked his senator to inquire about the status on his employment. On October 25, 2006, the deciding official responded to the congressional inquiry by writing that he would prepare a final adjudication on the misconduct allegations. On November 7, 2006, the Agency wrote to Complainant's senator that Complainant failed to meet the suitability requirements of a contract linguist for the FBI because of his personal misconduct. Therefore, the New York Field Office "has hereby not recommended [Complainant] for further service to the FBI." EEO Complaint Complainant initiated EEO counselor contact on December 7, 2006, and filed a formal complaint on January 26, 2006. He alleged, in relevant part, that the Agency discriminated against him on the bases disability (physical) and reprisal for prior EEO activity when: 1. on November 12, 2006, Complainant learned that the Agency had terminated him. The Agency accepted for investigation this claim on the basis of disability. But it dismissed the basis of reprisal, reasoning that Complainant did not allege ever taking part in the EEO process or opposing unlawful discrimination before filing this complaint. When the Agency finished the investigation, it gave Complainant a copy of the report of investigation and notified him of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Agency's Motion for Summary Judgment and the AJ's Preliminary Ruling The Agency moved for summary judgment. It first argued that the complaint should be dismissed because Complainant untimely contacted an EEO counselor on December 7, 2006. The relevant adverse action occurred when the Agency did not renew Complainant's Basic Ordering Agreement on October 1, 2006. From this date, Complainant had 45 days to contact an EEO counselor (November 15, 2006). Because he did not contact an EEO counselor until December 7, 2006, the Agency argued he was untimely. The Agency further argued that its November 7, 2006 congressional correspondence should not be construed as a formal "termination of employment," since Complainant's contract had already expired by that time, so there was no employment relationship to terminate. Second, the Agency argued that Complainant did not establish that he was an individual with a disability or that his termination was the result of his alleged disability. The AJ issued a preliminary ruling, first determining that Complainant timely initiated EEO counselor contact on December 7, 2006. The AJ found that Complainant considered himself to be in a pending suspension status, and the first time he was notified that the Agency did not recommend him for further services was in the November 7, 2006 letter to Complainant's senator. Therefore, the AJ found that Complainant timely contacted an EEO counselor within 45 days of the congressional correspondence. Second, the AJ ruled that Complainant should be considered an Agency employee rather than an independent contractor for EEO purposes, because the Agency exerted sufficient control over Complainant. The AJ found several factors to support this determination: * Complainant worked on a core Agency function: language interpretation; * the Agency supplied the office and equipment for Complainant to translate languages; * Complainant generally had set reporting hours; * Complainant was under Agency supervisory control, as evidenced by his supervisor taking away his weekend hours so that management could constantly observe him interacting with other coworkers; The AJ subsequently held a hearing and issued a decision on November 15, 2010. AJ's Decision First, the AJ found that Complainant was an individual with a disability because he had a hearing impairment that required him to limit his exposure to noise. Second, the AJ determined that Complainant was a qualified individual with a disability because he received positive performance reviews in his job. Then, the AJ applied a mixed motive analysis. The AJ found that the Regional Program Manager, a respected and experienced Agency official in the New York field office, added to the electronic communication two additional grounds for removing Complainant: 5. Claiming to be extremely sensitive to noise, [Complainant] has become belligerent and disrespectful to others who allegedly create noise, regardless of the others intent or work setting. 6. [Complainant] has had his personal work space moved numerous times in order to avoid the peripheral noise created in the normal course of business. The AJ found that these grounds referenced impermissible factors (Complainant's sensitivity to noise and his reasonable accommodation requests to be moved to quieter work areas) which could not be used to terminate him. By injecting impermissible factors into the adjudication process, the AJ found that the Regional Program Manager sought to punish Complainant, in part, because of his physical disability and reasonable accommodations. Therefore, the AJ found the electronic communication constituted direct evidence that Complainant's disability was a motivating factor in the Agency's decision to adjudicate his employment status, which eventually led to his termination. Nevertheless, the AJ found that the Agency demonstrated that it would have taken the same action even if it had not considered the impermissible, discriminatory factors. The AJ determined that Complainant's supervisor had drafted the electronic communication because Complainant had been insubordinate when he completely disregarded a direct instruction to not work on the weekend. Although the Regional Program Manager impermissibly injected disability-related language into the electronic communication, the AJ found that the ultimate deciding official at headquarters disregarded that language and removed it from the April 20, 2006 memorandum that initiated the formal investigation. The AJ found that the Agency assigned an investigator to investigate non-disability-related allegations. The AJ found that the investigator believed Complainant had subjected a female coworker to hostile work environment harassment by stalking her and threatening her, and therefore recommended to terminate Complainant on those grounds. The AJ found no evidence that the investigator's recommendation was in any way based on Complainant's disability, finding credible the investigator's testimony that his "investigation strictly concerned allegations of [Complainant's] behavior and not whether . . . he was sensitive to noise." For remedies, the AJ found that Complainant was not entitled to personal relief. He ordered the Agency to provide at least 3 hours of training to Complainant's supervisor and the Regional Program Manager; post a notice; and pay $50,358.00 in attorney's fees. Agency's Final Order The Agency subsequently issued a final order, rejecting the AJ's finding that the removal was motivated, in part, by discrimination on the basis of disability. Assuming for the sake of argument that Complainant was an individual with a disability, the Agency determined that the AJ erred in relying solely on the presence of bullet points (5) and (6) in a preliminary request for an investigation, to conclude that disability was a motivating factor in the Agency's ultimate decision to terminate Complainant's employment. According to the Agency, the AJ ignored the fact that bullet points (5) and (6) played no role in the Agency's investigation of Complainant's misconduct or the Agency's determination that Complainant was not suitable for continued employment. The evidence demonstrated that the deciding official specifically excluded bullet points (5) and (6) when he outlined the scope of the investigation, and the investigator credibly testified that the investigation strictly concerned allegations of Complainant's behavior, not his sensitivity to noise. Because neither the investigator nor deciding official considered Complainant's hearing impairment when they investigated and ultimately removed him, the Agency argued there was no substantial evidence to support the AJ's mixed motive finding of discrimination on the basis of disability. CONTENTIONS ON APPEAL Agency Employee or Independent Contractor The Agency maintains that Complainant should not be considered an "employee" for EEO purposes, primarily because, at the time he initiated EEO counselor contact on December 7, 2006, he had no employment relationship with the Agency and was not under any supervisory control. Further, the Agency lists the following factors to show that Complainant should not be considered an employee for EEO purposes: * Complainant is paid by the number of hours he invoices; * he is not afforded any annual leave; * his contract specifies that he is "not a Federal Government employee." The Agency then highlights other ways in which contract linguists differ from "employee" linguists: * the Hatch Act does not apply to contract linguists; * contract linguists do not have to sign worldwide mobility agreements; * contract linguists can refuse temporary duty assignments; * contractors do not need to first ask the Agency for permission to work on non-Agency matters or hold office positions in outside organizations, like churches and community groups; * contract linguists are not required to take on additional administrative burdens. In response, Complainant argues that he should be considered an employee for EEO purposes because of the following factors: * the Agency exercised significant control over the means and manner of his work; * the work was done under the direction of Agency officials, who supervised contract linguists and Agency employee linguists alike; * The Agency furnished all the equipment used and the place of work. Moreover, the Agency's EEO office had initially determined in an October 31, 2007 letter1 that he could proceed with his EEO complaint because his "relationship with the FBI is comparable to that of a federal employee." Timeliness of EEO Counselor Contact The Agency argues that the case should be dismissed because Complainant failed to timely contact an EEO counselor. The Agency asserts that Complainant was effectively terminated from employment either on February 1, 2006, when the Agency "ceased issuing work orders" to Complainant, or on September 30, 2006, when the Agency did not renew his contract, thereby severing the employment relationship between the Agency and Complainant. At the latest, he should have contacted an EEO counselor by November 15, 2006. Instead, the Agency maintains he contacted an EEO counselor on December 7, 2006. Therefore, he was untimely. In response, Complainant contends that the AJ properly determined that he timely initiated EEO counselor contact. According to the terms governing his employment relationship with the Agency, the Agency is supposed to prepare an electronic communication that (1) summarizes the reasons and circumstances for termination or non-renewal, and (2) instruct the field office to debrief the linguist and execute an SF-312 documenting the debriefing. Complainant maintains that the Agency never carried out these procedures for terminating or not renewing his services. Therefore, he had no reason to assume that the Agency had finished adjudicating the matter when his contract was not renewed in September 2006. He arguably only began to suspect that he had been removed as a result of the adjudication process in November 2006, when the Agency wrote that the field office "has hereby not recommended [Complainant] for further service to the FBI." Individual with a Disability On the merits, the Agency contends that Complainant was not an individual with a disability because his noise sensitivity did not substantially limit him in a major life activity. In response, Complainant asserts that he testified that loud noises caused him physical pain and interfered with his ability to concentrate and interact with others in various settings (restaurants, parties, concerts, sporting events, movie theaters). Furthermore, he was qualified for the position because he received excellent performance reviews over the years. Mixed Motive Analysis The Agency argues that the AJ erred in determining that the removal was motivated, in part, by Complainant's alleged physical disability. According to the Agency, the AJ's findings of fact indicate that the deciding official who ultimately chose to remove Complainant made that decision without considering Complainant's alleged disability. In this regard, the Agency notes that: * The AJ found that the deciding official disregarded the disability-related language in the initial electronic communication, and subsequently limited the scope of the investigation by instructing the investigator to investigate non-disability issues. * The AJ then found that the investigator's recommendation to remove Complainant was not based on disability. Therefore, according to the Agency, the deciding official did not actually consider Complainant's disability when he chose to remove Complainant. In response, Complainant essentially argues that the actual motivations of the ultimate deciding official are irrelevant for purposes of establishing liability under the "cat's paw theory." This theory of liability holds an employer liable for the animus of an employee or supervisor, who was not charged with making the ultimate employment decision. Complainant argues that the Regional Program Manager inserted impermissible grounds for removal that were adopted by the field office and forwarded to headquarters, which resulted in the initiation of the adjudicative process. The manager then elaborated to the investigator his impermissible views of why Complainant should be removed, and his testimony became part of the investigative report that the deciding official relied on to make his decision to remove Complainant. Under these facts, Complainant maintains that the Agency should be held liable for the retaliatory animus of the Regional Program Manager. Complainant contends that the AJ should not have applied a mixed motive analysis because neither party raised it. And even if the mixed motive framework had been properly raised, Complainant argues that the Agency did not meet its burden in demonstrating by clear and convincing evidence that it would have taken the same action even if it had not considered the discriminatory factors (his sensitivity to noise and requests for reasonable accommodation). ANALYSIS AND FINDINGS Standard of Review The Commission will uphold an AJ's post-hearing factual findings if they are supported by substantial evidence in the record, according to 29 C.F.R. § 1614.405(a). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted, unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). Agency Employee or Independent Contractor To determine whether an individual is an agency employee for EEO purposes, the Commission applies the common law agency test. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)). The Commission will look to the following non-exhaustive list of factors: 1. the extent of the employer's right to control the means and manner of the worker's performance; 2. the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; 3. the skill required in the particular occupation; 4. whether the employer or the individual furnishes the equipment used and the place of work; 5. the length of time the individual has worked; 6. the method of payment, whether by time or by the job; 7. the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; 8. whether annual leave is afforded; 9. whether the work is an integral part of the business of the employer; 10. whether the work accumulates retirement benefits; 11. whether the employer pays social security taxes; and 12. the intention of the parties. The common law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all incidents of the relationship must be assessed with no one factor being decisive." Nationwide Mut. Ins. Co., 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968)). Upon review, we find that factors (1)-(2), (4)-(7), and (9) indicate that Complainant is an Agency employee for EEO purposes. On the other hand, factors (3) and (12) indicate that Complainant is an independent contractor. Kereem v. Dep't of State, EEOC Request No. 0520110069 (Apr. 26, 2012). Factors (1) and (2) indicate that Complainant is a covered employee because Complainant's supervisor had the right to control when, where, and how Complainant performed the job. For example, the Agency supervisor ordered Complainant to not work on the weekends, and his past Agency supervisors determined whether he could relocate to quieter parts of the office. Agency supervisors managed both the contract and Agency linguists, assigned them the work to be performed, and evaluated their work through performance reviews. For factor (4), the Basic Ordering Agreement specified that the Agency would furnish the translation equipment, and the work was performed on the Agency's premises.2 As for factor (5), Complainant and the Agency had a continuing employment relationship that lasted for four years, from 2002 to 2006. When he did get paid, Complainant was paid by the hour for invoiced work, rather than for an agreed upon cost of performing a particular job. Therefore, factor (6) indicates that Complainant was an Agency employee, instead of a contractor brought in to complete one particular job. For factor (7), the Basic Ordering Agreement allowed the Agency and Complainant to terminate the work relationship.3 In fact, one Agency witness testified that the Agency had designed the adjudicative removal process for contractors to resemble the process in which the Agency's Office of Professional Responsibility handled misconduct matters for Agency employees. Hearing Transcript at 235. For factor (9), translating foreign language materials to detect illegal activities is an integral part of the Agency's law enforcement mission. The Commission does not have enough information in the record regarding factors (8), (10) and (11), that is, it is unclear whether the Agency provided Complainant with benefits such as insurance, leave, or workers' compensation. Although one Agency witness summarily denied that contractors received "benefits," he did not specify what benefits he was referring to. Hearing Transcript at 232. Nor was it apparent if the Agency withheld federal, state, and Social Security taxes from Complainant. Although Complainant's job required a high level of skill or expertise, and the Basic Ordering Agreement explicitly stated that Complainant was not an Agency employee, we find that these factors (3 and 12) do not outweigh the other factors which indicate that Complainant, for purposes of filing a complaint should be deemed an independent contractor. Here, the Agency's supervisors controlled every meaningful aspect of Complainant's work experience, from the equipment he used and the places and hours he could do the work, to his job assignments and performance appraisals. Disobeying his supervisors subjected him to an adjudicative removal process that resembled the disciplinary process for Agency employees. Therefore, we find that the AJ properly found that Complainant should be considered an "employee" for purposes of the federal employment discrimination laws.4 Timeliness of EEO Counselor Contact Based on the Agency's written responses to congressional inquiries, we find substantial evidence in the record to support the AJ's finding that Complainant timely contacted an EEO counselor on December 7, 2006. The September 2006 non-renewal of the Basic Ordering Agreement, by itself, did not sufficiently indicate to Complainant that he had been removed from the Agency as a result of a final adjudication by the deciding official. In a subsequent October 25, 2006 written response to a congressional inquiry, the deciding official explained that the New York field office had conducted interviews, which described in detail personal misconduct by Complainant. These interviews led the New York field office to not renew Complainant's Basic Ordering Agreement. But the deciding official went on to suggest that the field office's decision to not renew the Basic Ordering Agreement did not constitute a final adjudication by the deciding official: Given the number of individuals interviewed, coupled with the exhaustive detail of the investigation, I find no material which would warrant any level of mitigation in this case. To that end, I will prepare a Final Adjudication based on the aforementioned interviews and logical investigation conducted during the past several months. Then in a November 7, 2006 letter to Complainant's senator, the Agency wrote: The investigation highlighted personal misconduct that has led the [New York field office] to conclude that [Complainant] has failed to meet suitability requirements that are clearly outlined in the Basic Ordering Agreement, the terms and conditions under which a contract linguist performs services for the FBI. Because of this, [the New York field office] has hereby not recommended [Complainant] for further service to the FBI. Based on the deciding official's October 2006 correspondence indicating that he would prepare a final adjudication, we find it reasonable for Complainant to conclude that the next correspondence from the Agency, the November 7, 2006 letter, constituted the final adjudication of his removal. Because Complainant contacted an EEO counselor within 45 days of the November 7, 2006 letter, we find that Complainant timely contacted an EEO counselor. Reprisal for Prior EEO Activity Complainant raised the basis of reprisal in his formal complaint, but the Agency dismissed this basis because Complainant had not engaged in prior EEO activity. Upon review, we find that the Agency erred in dismissing the basis of reprisal because Complainant had engaged in prior EEO activity when he requested to be moved to quieter work areas as reasonable accommodations for his sensitivity to noise. Our Compliance Manual provides: A request for reasonable accommodation of a disability constitutes protected activity under Section 503 of the [Americans with Disabilities Act]. Although a person making such a request might not literally "oppose" discrimination or "participate" in the administrative or judicial complaint process, s/he is protected against retaliation for making the request. As one court stated, It would seem anomalous . . . to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation. (citations omitted) EEOC Compliance Manual, Section 8: Retaliation, EEOC No. 915.003 (May 20, 1998). We find it more appropriate and accurate to frame this claim in the context of reprisal: whether the Agency removed Complainant, in part, because he previously engaged in the protected activity of requesting reasonable accommodations for his disability. The AJ's finding that the Regional Program Manager sought to "punish" Complainant for requesting reasonable accommodations is essentially a finding of discrimination on the basis of reprisal. As such, we find it more appropriate to analyze the removal claim on the basis of reprisal, rather than disability. a. Liability for Retaliation An unlawful employment practice is established whenever retaliation for a complainant's prior EEO activity was a motivating factor, even though other factors also motivated the practice.5 Evidence as to any legitimate motive for the challenged action would be relevant only to relief, not to liability. Here, the AJ found the following facts: * The Regional Program Manager, a former supervisor of Complainant's, proposed to remove Complainant because of the numerous times the Agency moved his personal work space to accommodate his sensitivity to noise. * The Regional Program Manager convinced Complainant's first-level supervisor to adopt this impermissible ground as one of seven grounds for removing Complainant. These grounds were subsequently approved by other Agency officials in the New York field office and sent to the ultimate deciding official. * The ultimate deciding official disregarded this proposed ground by omitting it from a April 20, 2006 memorandum that initiated the formal investigation. * During the investigation, the investigator was strictly concerned about allegations of Complainant's behavior, not his disability. * The investigator recommended Complainant be removed because he believed that Complainant had subjected a female coworker to hostile work environment harassment by stalking her and threatening her. Upon review, we find that there is substantial evidence to support the AJ's finding that the Regional Program Manager added bullet point (6) to the initial electronic communication, and that the New York field office approved and incorporated this bullet point in its electronic communication. Specifically, Complainant's first-level supervisor testified at the hearing that the Regional Program Manager included bullet points (5) and (6) after reviewing his draft of the electronic communication. Hearing Transcript, at 463-465. The first-level supervisor then testified that he accepted the additional bullet points because he trusted the manager's judgment. Id. at 467-468. We also find that the deciding official's April 20, 2006 memorandum, on its face, shows that he attempted to focus the scope of the investigation on Complainant's unprofessional, aggressive behavior and his non-compliance with management requirements. The deciding official testified that he wanted to concentrate the investigation on Complainant's behavior and non-compliance because "[t]hey were the strongest" grounds that would "make a case" for removal. Id. at 649-650. We do not accept the AJ's credibility determinations based on the investigator's testimony about how he conducted the investigation and recommended removal, because the investigative report so contradicts the investigator's testimony that a reasonable fact finder would not credit it. On pages 2 and 3 of the investigative report, the investigator listed all the allegations that were raised in the January 30, 2006 electronic communication, including bullet point (6). Immediately following this list, the investigator wrote on page 3: "[T]he above listed allegations were investigated during the interviews conducted in furtherance of this investigation." The investigative report summarizes an interview that directly discusses bullet point (6), the interview with the Regional Program Manager, who had originally added bullet point (6) to the initial electronic communication. The investigative report states that the Regional Program Manager found Complainant to be annoying because of his numerous complaints about his sensitivity to noise. He told the investigator that his only problem with Complainant was that his desk had to be moved on several occasions due to Complainant's constant complaining about extreme sensitivity to noise. The investigative report concluded: "New York is of the opinion that the facts of the investigation support the allegations cited by [Complainant's first-level supervisor]. New York further finds, by a preponderance of the evidence, that [Complainant] has engaged in a pattern of misconduct, and that the misconduct is egregious enough to warrant termination of [Complainant's] contract." We find that the investigative report, on its face, provides objective evidence showing that the investigator investigated all the proposed grounds for removal that were raised in the initial electronic communication. Regarding bullet point (6), the investigator interviewed the Agency official responsible for adding bullet point (6) to the initial electronic communication. The investigator memorialized this interview, in which the Regional Program Manager reiterated his view that Complainant's "problem" was that the Agency had to move him on several occasions due to his constant complaining about sensitivity to noise. Moreover, the investigative report's conclusion indicates that the investigator found sufficient evidence to support all of the allegations raised by the initial electronic communication, not just the allegation that Complainant had harassed the female coworker. We now analyze the legal significance of these factual findings. Direct Evidence of Reprisal Direct evidence of a retaliatory motive is any written or verbal statement by an Agency official that he or she undertook the challenged action because the complainant engaged in protected activity. Such evidence also includes a written or oral statement by an Agency official that on its face demonstrates a bias toward the complainant based on his or her protected activity, along with evidence linking that bias to the adverse action. EEOC Compliance Manual, Section 8: Retaliation, EEOC No. 915.003 (May 20, 1998). Here, it is undisputed that Agency management officials in the New York field office drafted, approved, and sent a January 30, 2006 electronic communication. This electronic communication alleged that Complainant engaged in unprofessional misconduct that warranted removal, and requested the Intelligence Directorate to adjudicate the matter. Among the proposed grounds for removing Complainant, bullet point (6) explicitly referenced Complainant's prior reasonable accommodation requests, and hence his prior EEO activities. The Commission finds that bullet point (6) in the initial electronic communication is direct evidence of a retaliatory motive by officials in the New York field office (in particular the Regional Program Manager) because it proves on its face that they informed the deciding official in the Intelligence Directorate about Complainant's protected activity and asked the deciding official to remove Complainant because of that protected activity. But while the initial electronic communication is direct evidence that the New York field office initiated removal proceedings for retaliatory reasons, that communication is not direct evidence that the deciding official chose to remove Complainant for retaliatory reasons. The distinction is illustrated in an example from the EEOC's Compliance Manual, paraphrased below: Complainant alleged that her supervisor sexually harassed and constructively discharged her. Complainant subsequently sued employer A and reached a settlement. When Complainant applied for a new job with employer B, she received a conditional offer subject to a reference check. When B called Complainant's former supervisor at employer A for a reference, the supervisor said that Complainant was a "troublemaker," started a sex harassment lawsuit, and was not anyone B "would want to get mixed up with." B did not hire Complainant. She suspected that her former supervisor gave her a negative reference and filed retaliation charges against A and B. The investigation discovered notes memorializing the phone conversation between A and B. These notes are direct evidence of retaliation by A because they prove on their face that A told B about Complainant's protected activity and that A gave Complainant a negative reference because of that protected activity. These notes are not direct evidence of retaliation by B because they do not directly prove that B rejected Complainant because of her protected activity. Because the adverse employment action at issue here is not the initiation of the removal proceedings, but rather the removal itself, we find that the AJ erred in determining that the initial electronic communication, by itself, was sufficient to establish that the removal was motivated by retaliatory reasons. But under the cat's paw theory,6 the Agency may be held liable for employment discrimination based on the retaliatory animus of the Regional Program Manager who influenced, but did not make, the ultimate employment decision to remove Complainant. Cat's Paw Theory of Liability Under certain circumstances, the cat's paw theory of liability holds an employer liable for the animus of an employee or supervisor, who was not charged with making the ultimate employment decision. Our previous decisions have recognized the general principles underlying the cat's paw theory, but there has been no uniform standard for its application. See, e.g., Isaac Smith v. Dep't of the Army, EEOC Appeal No. 0120073300 (Dec. 18, 2009); Deirdra Brown v. Dep't. of Justice, EEOC Appeal No. 0120045121 (Dec. 20, 2006). Instead, our previous decisions have referenced two of the general approaches that the federal circuit courts have used to examine cat's paw liability. * If a coworker had influence or leverage over the official decisionmaker, it is appropriate to impute the coworker's discriminatory attitudes to the official decisionmaker and hold the employer liable. See Russell v. McKinney Hospital Venture, 235 F.3d 219, 226-227 (5th Cir. 2000). * If the official decisonmaker acted as a conduit of a supervisor's prejudice-his cat's paw-the employer is liable. See Shager v. Upjohn Company, 913 F.2d 398 (7th Cir. 1990). Under the "influence or leverage" standard, we find that the Regional Program Manager wielded sufficiently great informal power within the Agency to influence or leverage the ultimate deciding official, making it appropriate to impute the manager's retaliatory animus to the deciding official and to hold the Agency liable for retaliatory discrimination. The first-level manager testified that the Regional Program Manager had been "the boss" in the New York field office, and many people still went to him for advice and guidance. The first-level supervisor had the Regional Program Manager review his initial draft of the electronic correspondence, and he went along with the manager's addition of bullet point (6) because he "trusted" him. Besides adding bullet point (6) to the initial electronic communication, the Regional Program Manager influenced the removal proceedings in other ways. The first-level supervisor testified that headquarters would have been aware of any recommendations made by the Regional Program Manager because Regional Program Managers spoke daily with headquarters. Hearing Transcript at 480. Indeed, the emails in the record bear this out. The record includes an email by the deciding official, in which he states that the Regional Program Manager spoke with him and persuaded him to attempt to draft a cure letter for Complainant, rather than continue the adjudicative removal process. But even after the deciding official's supervisor ordered the investigation to continue, the Regional Program Manager persisted by emailing the deciding official that he had "briefed" Complainant's first and second-level supervisors on their options for creating a fair resolution of this matter. Furthermore, even though the deciding official attempted to omit bullet point (6) from the investigation, the Regional Program Manager still managed to insert his testimony regarding bullet point (6) into the investigative report. The deciding official relied solely on the contents and recommendation of the investigative report. Because the Regional Program Manager was intimately involved in the adjudicative process, from partially drafting the document that instigated the proceedings to corresponding with the deciding official to participating in the investigation, we find that he influenced the deciding official enough to hold the Agency liable for the retaliatory animus of the Regional Program Manager. Similarly, under the "conduit" standard, we find that the deciding official acted as the conduit of the Regional Program Manager's retaliatory animus against Complainant. The Regional Program Manager helped initiate the removal proceedings by adding bullet point (6) and convincing other officials within the New York field office to adopt this ground in their request to remove Complainant. In recommending to remove Complainant, the investigator relied, in part, on the Regional Program Manager's representations about Complainant's "problem" of reasonable accommodations, as reflected in the initial electronic communication. The deciding official concurred with the investigation's recommendation, which was based solely on the representations of the Regional Program Manager and Complainant's other accusers. Hence, we determine that the deciding official was the conduit of the Regional Program Manager's retaliatory animus against Complainant, and we find it appropriate to hold the Agency liable. a. Staub v. Proctor Hospital We briefly note that after the AJ issued his decision in this case, and while this appeal was pending, the U.S. Supreme Court clarified the standard for evaluating "cat's paw" cases. In Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), Vincent Staub sued his former employer under the Uniformed Services Employment and Reemployment Rights Act of 1994, alleging that his termination was motivated by his employer's hostility to his military obligations. Although a human resources official, who made the decision to terminate, lacked such military hostility, her decision was influenced by his supervisors, who possessed enmity to his military obligations. Id. at 1190. The Seventh Circuit held that under its "cat's paw" precedent, an employer is liable only if the nondecisionmaker exerted such "singular influence" over the decisionmaker that the decision to terminate was the product of "blind reliance." Id. But if a decisionmaker is not wholly dependent on a single course of information and conducts her own investigation, then the decision to terminate is not the product of blind reliance. The Supreme Court rejected the "singular influence" test. Instead, it stated that the correct test to evaluate employer liability was twofold: (1) the supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and (2) that act is a proximate cause of the ultimate employment action. Id. at 1194. "Proximate cause requires only 'some direct relation between the injury asserted and the injurious conduct alleged,' and excludes only those 'link[s] that are too remote, purely contingent, or indirect.'" Id. at 1192 (quoting Hemi Group, LLC v. City of New York, 559 U.S. 1, ----, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010)). It is "causation substantial enough and close enough to the harm to be recognized by law." Sosa v. Alvarez-Machain, 542 U.S. 692, 704 (2004). The Court was not persuaded by the employer's argument that a decisionmaker's "independent investigation (and rejection) of the employee's allegations of discriminatory animus" automatically relieves the employer of fault. Id. at 1193. The Court explained: [I]f the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action . . . then the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified. . . . The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision. Although the Commission declines to retroactively apply the Staub test here, we note that the Agency's main argument on appeal, under Staub, is that the independent investigation severed the causal connection between the Regional Program Manager's retaliatory animus and the deciding official's ultimate decision to terminate Complainant. Essentially, the Agency contends that the Regional Program Manager's animus was not a proximate cause of Complainant's termination because the independent investigation was an intervening superseding cause. We do not agree. "A cause can be thought 'superseding' only if it is a 'cause of independent origin that was not foreseeable.'" Staub, 131 S.Ct. at 1192 (quoting Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996)). Here, the investigative report, on its face, explicitly incorporated and investigated all the grounds for removal that were proposed in the initial electronic communication, including bullet point (6). The investigative report included statements from the author of bullet point (6), whose comments principally focused on matters relating to bullet point (6). Because the investigative report took the statements of the Regional Program Manager into account without determining that removal was warranted apart from the Regional Program Manager's representations, we find the investigative report is not an intervening superseding cause that severed the causal connection.7 Mixed Motive Analysis In light of our finding that the removal was motivated by reprisal, we further find that this matter should be reviewed under a mixed motive analysis because the deciding official also provided a non-retaliatory reason for removing Complainant. Cases such as this, where there is evidence that discrimination was one of multiple motivating factors for an employment action, that is, the employer acted on the bases of both lawful and unlawful reasons, are known as "mixed motive" cases. Once a complainant demonstrates that discrimination was a motivating factor in the employer's action, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have made the same decision, even if it had not considered the discriminatory factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). If the employer is able to make this demonstration, the complainant is not entitled to personal relief, that is, damages, reinstatement, hiring, promotion, back pay. But the complainant may be entitled to declaratory relief, injunctive relief, attorneys' fees or costs. See Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). To avoid an order requiring reinstatement and the payment of back pay and damages, the employer must offer objective evidence that it would have made the same decision even absent the discrimination.8 In making this showing, the employer must produce proof of a legitimate reason for the action that actually motivated it at the time of the decision. A mere assertion of a legitimate motive, without additional evidence proving that this motive was a factor in the decision and that it would independently have produced the same result, would not be sufficient. The employer must prove "that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same action." Price Waterhouse, 490 U.S. at 276-77 (O'Connor, J., concurring). The employer's alleged legitimate explanation for the action will be undercut if there is evidence that this reason would also have justified taking the same action against another similarly situated employee, but the employer declined to do so.9 At the hearing, the investigator testified that he recommended to remove Complainant because he believed that Complainant had stalked and threatened the female coworker and subjected her to hostile work environment harassment (water fountain, staring at her, following her to the break room). Hearing Transcript, at 362, 365. Similarly, the deciding official testified that he concurred with the investigator's recommendation because Complainant had harassed the female coworker.10 Id. at 637. Complainant contends that the evidence put forth by the Agency was insufficient to establish the mixed motive affirmative defense. He argues that the Agency did not produce contemporary, objective evidence of the deciding official's legitimate motives in deciding to remove Complainant. Complainant maintains that all of the relevant evidence, the deciding official's hearing testimony and the investigative report, was either post hoc or subjective. We agree. The record shows that the investigative report was the sole source of information that the deciding official relied on to make his decision. But there are serious deficiencies with the report. The investigator only spoke to Complainant's accusers, who gave unsworn statements. In finding the Agency's witnesses to be credible, the investigator testified that they seemed to corroborate each other's statements and were bound by the "Bright Line Rule." As the investigator explained at the hearing: Well, as FBI employees we have what's known as the Bright Line Rule which is . . . I will not lie, cheat or steal or tolerate others who do. And that's something that's kind of ingrained in your at the FBI academy. And so as an FBI employee . . . something that will get you fired absolutely every single time is lack of candor in investigation. And if . . . any FBI employees lied to me during the course of this type of investigation and it later turned out that they were untruthful, chances are they'd be fired. Hearing Transcript, at 312. The investigator admitted that he did not review any of Complainant's written statements or letters concerning his misconduct during the course of the investigation. Id. at 312-313. He did not interview Complainant because he felt it was not necessary to do so after interviewing all the other Agency witnesses, since he felt the allegations had already been proven. Id. at 313. The investigator stated that the witness interviews constituted the entirety of the investigation. He never looked at documents. Id. at 321-322. Because the investigative report consisted entirely of subjective, unsworn statements from Complainant's accusers, and not on any objective evidence such as past performance evaluations (none of which cite any misconduct by Complainant), we find that the Agency did not offer objective evidence that Complainant engaged in a pattern of misconduct. Next, we find that the deciding official's hearing testimony concerning his decision-making process constitutes a mere assertion of a legitimate motive, without additional evidence proving that the motive was a factor in his decision. Even if we were to find that the investigative report and the deciding official's hearing testimony constituted objective evidence, we find that they do not satisfy the "clear and convincing" evidentiary standard required to establish the mixed motive affirmative defense. The investigator and deciding official both felt that Complainant had harassed the female coworker regarding the water fountain incident on December 3, 2005 and the lounge incident on January 21, 2006, and that such behavior warranted removal. But the investigator admitted at the hearing that he did not consider the lounge incident, by itself to be egregious enough to warrant removal. Hearing Transcript, at 335. Therefore, the Agency's decision to remove Complainant hinges on the credibility of the female coworker's allegation about the water fountain incident. At the hearing, Complainant's attorney raised several possible deficiencies in the investigator's examination of the water fountain incident: the female coworker had allegedly raised similar allegations against other employees; Complainant's first-level supervisor had doubts about the female coworker's water fountain story; the Regional Program Manager had urged the deciding official to issue a cure letter for Complainant rather than removal; the deciding official had actually begun to prepare a cure letter before his supervisor told him to continue the investigation. Because of all the deficiencies and unanswered questions surrounding the water fountain allegation, and the previous expressions by various management officials (including the deciding official) that they thought removal was too harsh a penalty, we find that the Agency failed to provide clear and convincing objective evidence that the deciding official would have removed Complainant even absent the discrimination. Therefore, we find that Complainant is entitled to personal relief, including damages, reinstatement, and back pay. Compensatory Damages and Attorney's Fees Because Complainant is the prevailing party, he may be entitled to an award of compensatory damages and attorney's fees. At the hearing, Complainant's attorney had requested $167,860.00 in attorney's fees. The Agency argued that Complainant's attorney should be entitled to $21,600.00. Relying on previous mixed motive cases in which AJs reduced attorney's fees by about 80 percent, the AJ here reduced attorney's fees by 70 percent since Complainant did not completely prevail in this mixed-motive decision. Due to such a large reduction, the AJ did not find it necessary to address instances where it appeared that Complainant's attorney charged excessive hours for certain tasks, such as $805 for requesting extensions, charging full-hourly rates for travel, and charging 124.1 hours for researching and writing closing arguments. Ultimately, the AJ awarded $50,358.00 in attorney's fees. Because we reverse the AJ's mixed-motive finding in this case, the AJ's rationale for reducing attorney's fees by 70 percent is no longer operative, and we remand the issue of additional attorney's fees to the Hearings Unit to determine how much the amount of attorney's fees should be increased (factoring in any offsets due to alleged excessive hourly billing for certain tasks).11 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed here, we REVERSE the Agency's final order that found no discrimination. We remand this matter for a hearing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to take the following actions: 1. The Agency shall submit to the Hearings Unit of the EEOC's New York District Office the request for a hearing on Complainant's entitlement to compensatory damages and additional attorney's fees within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall determine whether Complainant is entitled to compensatory damages, both pecuniary and non-pecuniary, and/or attorney's fees, consistent with this decision. The AJ shall issue a decision on the remedies awarded in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 2. Within sixty (60) calendar days of receipt of this decision, the Agency shall offer Complainant reinstatement to his position as a contract linguist at the FBI's New York field office, or a substantially equivalent position, retroactive to November 7, 2006 (the date that the Agency effectively terminated him). The offer shall be made in writing and include a written position description. Complainant shall have fifteen calendar (15) days from receipt of the offer to accept or decline the offer. Failure to accept the offer within fifteen (15) days will be considered a declination of the offer, unless the individual can show that circumstances beyond his control prevented a response within the time limit. 3. The Agency is directed to provide at least three (3) hours of EEO training for the responsible management official(s), addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on retaliation, the current state of the cat's paw theory of liability, and their obligations to provide reasonable accommodations under the Rehabilitation Act. 4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. The Agency shall post copies of the attached notice in accordance with the statement entitled "Posting Order." 6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at the FBI's New York field office 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 (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 _7/19/12_________________ Date 1 The Commission notes that it could not find this October 31, 2007 letter in the record. 2 "Services are primarily performed within FBI space or approved location utilizing FBI-supplied materials and equipment." Article II of Basic Ordering Agreement. 3 The Basic Ordering Agreement "may be cancelled in its entirety by either party upon 30 days written notice to the other party." Article VIII of the Basic Ordering Agreement. 4 The Agency contends that an independent contractor can never be considered an "employee" for EEO purposes simply because he no longer worked for the Agency at the time of EEO counselor contact. We firmly reject this position. The Commission has long held that former employees are protected by the EEO statutes when they are subjected to discrimination arising from the former employment relationship. EEOC Compliance Manual, Section 2: Threshold Issues, EEOC Notice No. 915.003. 5 Section 107 of the Civil Rights Act of 1991 provides that an unlawful employment practice is established whenever race, color, religion, sex, or national origin was a motivating factor, even though other factors also motivated the practice. 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B). The Commission has concluded that Section 107 applies to retaliation. Courts have long held that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation. Furthermore, an interpretation of Section 107 that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism. EEOC Compliance Manual, Section 8: Retaliation, EEOC No. 915.003 (May 20, 1998). 6 The term "cat's paw" derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F.2d 398, 405 (C.A.7. 1990). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. 7 Nor can the deciding official's exercise of judgment automatically render the link to the Regional Program Manager's animus "remote" or "purely contingent." As the Supreme Court stated, "The decisionmaker's exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes." Id. 8 See Price Waterhouse, 490 U.S. at 252 ("[I]n most cases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive"). 9 Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, EEOC No. 915.002 (July 14, 1992). 10 Although there were other grounds in the investigative report (disobeying the first-level supervisor's order to not work on the weekend for six weeks), we do not consider those here because the testimony of the investigator and the deciding official indicate that Complainant's actions towards the female coworker were the ones that actually motivated them to recommend the removal of Complainant. This analysis concerns actual motives, not assertions of legitimate motives. 11 Because the record on appeal does not contain any billing information, we remand this complaint to the Hearings Unit for a determination of Complainant's entitlement to compensatory damages and additional attorney's fees. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720110014 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720110014