U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trina C.,1 Complainant, v. Jefferson Sessions, Attorney General, Department of Justice, Agency. Appeal No. 0120131971 Agency No. OBD201000864 DECISION On April 12, 2013, Complainant filed a timely appeal from the Agency's March 12, 2013, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the FAD is REVERSED, and the complaint is REMANDED for further proceedings. ISSUES PRESENTED 1. Did Complainant prove by a preponderance of the evidence that she was subjected to a hostile work environment based on her sex (female)? 2. Did Complainant prove by a preponderance of the evidence that she was subjected to reprisal in being denied an extension of her detail, and given a negative job reference and performance appraisal? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Trial Attorney serving in a one-year detail as an Attorney Advisor at the Office of the Rule of Law Coordinator (OROLC) at the U.S. Embassy in Baghdad, Iraq. Report of Investigation, Part I (ROI I), p. 5. The Deputy Rule of Law Coordinator (S1) was Complainant's first line supervisor, and the Rule of Law Coordinator (S2) was Complainant's second line supervisor. FAD, p. 2. S1 and S2 started working at the OROLC in the Embassy during approximately the same time period as Complainant. FAD, p. 2. Counsel to the Office of the Deputy Attorney General for Rule of Law- Iraq (S3) was also involved with managing the OROLC at the Embassy, as was the Executive Officer (S4) for the OROLC who was responsible for staffing. Report of Investigation, Part II (ROI II), Ex. 12, S4 Affidavit, p. 5. The individual who served as the Deputy Rule of Law Coordinator (S5) of the OROLC at the time Complainant started her detail, but left shortly after, completed Complainant's performance evaluation for the period of her detail. FAD, p. 21-22. It appears that management at the OROLC during the time of Complainant's detail, mainly S1 and S2, did not treat staff in a favorable way. See generally, ROI. Testimony from a number of employees also affirms mistreatment of female employees. The following employee's testimonies are cited in support of Complainant's allegations: Attorney Advisor (E1), State Department Senior Advisor (E2), Rule of Law Analyst (E3), Senior Advisor to the Ambassador (E4), Attorney Advisor (E5), Deputy Senior Advisor to the Iraqi Ministry of Justice (E6), Foreign Service Officer (E7), Administrative Assistant (E8); and U.S. Embassy Liaison to Iraqi High Tribunal (E9). Employee testimony was extracted from the present case and Jeramy R. v. DOJ, EEOC Appeal No. 0120132089 (Nov. 19, 2015), which is a case involving a complaint filed by Complainant's co-worker.2 Evidence also reveals that Complainant was perceived to have some issues with her working relationship with management. For example, one employee testified that Complainant would elevate work-related situations; another testified that Complainant tried to "enlist me in her efforts" against S1 and S2; and another testified that she would attempt to discuss her dispute about S1 and S2 with other management officials who apparently did not want to discuss the topic. Ex. 14, p. 9; Ex. 16, p. 8; Ex. 10, S5 Affidavit, p. 5. On November 29, 2010, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the basis of sex (female) under Title VII of the Civil Rights Act of 1964 when: 1. From February 2010 and continuing until October 20, 2010, supervisors subjected her to a pattern of unfavorable treatment which included persistent hostile verbal and nonverbal behaviors toward her and other women in the office, humiliation, belittlement, disrespect, intimidation, disregard, exclusion, character and work ethic assassination, condescension, avoidance, isolation, invasion of privacy, undercutting and undermining with regard to job assignments, and assignment of credit to other persons for work performed. Complainant also alleged that she was discriminated against based on reprisal for her EEO activity when: 2. Around October 20, 2010, she was informed that she was not allowed to extend her detail at the OROLC for an additional three months; 3. Around December 2010 management officials interfered with her job application to the Civilian Response Corps (CRC), causing the CRC to discontinue the process that was underway; 4. She was issued an evaluation for rating period October 2009 through October 2010 that she believed was false and defamatory. S1 and S2 served as Complainant's managers during her detail; S3 and S5 served as rating officials for her performance appraisal; S3 and S4 were involved with Complainant's request for an extension of her detail; S3 provided a job reference to the CRC. FAD, 2-3, 22, 25-26; ROI II, Ex. 12. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to the alleged discrimination. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant's arguments include that she was subjected to a sex-based hostile work environment because: numerous assignments were taken away from her and other females; numerous witnesses testified to women being treated harshly and disrespectfully; and that management's mistreatment of women was perpetrated persistently and continually. See generally, Complainant's Brief. Complainant also contends the following in support of her retaliation claims: that she raised issues of sex discrimination to management on a number of occasions; no meaningful steps were taken to correct or discipline managers that were engaged in sex discrimination; that she requested an extension of her detail but that management did not follow up with her request; management provided a job reference that did not comport with her performance evaluation; and that her performance evaluation lacked any narrative and did not include some accomplishments. See generally, Complainant's Brief. II. Agency's Contentions On Appeal The Agency's arguments include the following: management was treating all staff poorly and not just women; management did not realize that Complainant was alleging gender discrimination until they were contacted by an EEO Counselor and realized that she "repackaged" her complaint about mistreatment of staff into a gender discrimination complaint; even if Complainant's claims are taken as true, management's actions were not severe or pervasive enough to constitute a hostile work environment; conduct Complainant alleged was a result of professional disagreements and personality conflicts and not discrimination. Agency Brief, p. 1-3. Further, the Agency contends that "'retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.'" Agency Brief, p. 4 (citing Univ. of Texas Southwestern Med. Cntr. v. Nassar, 2013 WL 3155234 at *10 (June 24, 2013).3 ANALYSIS AND FINDINGS I. Complainant Proved That She Was Subjected To A Hostile Work Environment Because She Was Subjected To Pervasive Unwelcome Conduct Involving Her Protected Class Harassment must be severe or pervasive in order to constitute a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Whether the harassment is hostile or abusive enough to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). To establish hostile work environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6, 9 (Mar. 8, 1994). A. Complainant Is A Member Of A Statutorily Protected Class And Was Subjected To Unwelcome Conduct Involving Her Protected Class Complainant is a member of a statutorily protected class by virtue of being female. There is evidence that the conduct Complainant alleged resulted from her status as a female. For example, testimony indicates that S1 stated that women in the office were lazy and did not have the skills to perform their jobs. ROI II, Ex. 15, E1 Affidavit, p. 8. Other conduct included yelling at one female staff member in a particularly egregious manner. ROI II, Ex. 17, E2 Affidavit, p. 9-10. A number of employees also testified to their perception that women in the office were not treated as well as men. For example, S2 testified that "[Complainant's] gender was not a positive factor in their assessment of her" in response to the question regarding whether Complainant was treated in a different fashion than male employees. ROI II, Ex. 17, E2 Affidavit, p. 10. E3 testified that "women generally were treated in a negative way" at the office, while "some (three to four) select men were also treated badly." ROI II, Ex. 18, E3 Affidavit, p. 6. E3 also testified that "whenever [Complainant] was out of the OROLC for an extended period and a male staff member filled in for her, it was obvious that [S1] and [S2] treated the male better than they treated Complainant." Id. E3 explained that she witnessed S1 and S2 occasionally take projects away from Complainant and give them to a male equivalent. Id. E4 testified that "female staff members, in particular, felt excluded" and that "it was noted by female staff members...that any initiative that they advanced would be ignored and belittled." Jeramy R. ROI, E4 Affidavit, p. 376. The Agency argues that the evidence establishes that staff in general were mistreated by S1 and S2 to emphasize that management's conduct was not limited to women. See, for e.g., Brief to CAO, p. 9-10. A finding of discrimination based on gender is not precluded simply because the Agency mistreated both males and females. See, for e.g., McDonnell v. Cisernos, 84 F. 3d 256, 260 (1996) (It would be exceedingly perverse if a male worker could buy his supervisors and his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female"); see also, Brown v. Henderson, 257 F. 3d 246, 254 (2nd Cir. 2001) ("[T]he inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved. For it may be the case that a co-worker or supervisor treats both men and women badly, but women worse"). While there are indeed indications that S1 and S2 had issues with male members of their staff, the overwhelming evidence establishes that female staff members were subjected to greater and more targeted mistreatment. Testimony more heavily establishes co-worker observations of management's behavior in this regard. Analogous cases have credited evidence similar to that offered in this case to find that alleged conduct was sex-based. For example, in Gillespie v. Dept. of the Army, the Commission credited testimony of a co-worker's "impression" that a supervisor "seemed to be more deferential when she was dealing with guys than when she was dealing with women." Gillespie v. Dept. of the Army, Appeal No. 0120080758, at *9 (May 25, 2012). The record in this case is replete with testimony of this nature. See, for e.g., ROI II, Ex. 17, E2 Affidavit. Further, like male co-worker testimony in Gillespie, male co-workers in the present case also testified to not being mistreated by S1 or S2. For example, one male employee testified that he was routinely out of the office and did not witness S1 or S2 treat staff badly, however, his testimony confirms that he was not subjected to the same conduct as Complainant and other females in the office. See, for e.g., ROI II, Ex. 16, E9 Affidavit. Therefore, Complainant established that she was subjected to unwelcome conduct involving her protected class. B. Management's Conduct Created A Hostile Work Environment And There Is A Basis For Imputing Liability To The Agency S1 and S2's treatment of female staff was pervasive enough to constitute a hostile work environment. (1) General Treatment Of Women Complainant and co-workers testified to mistreatment of women occurring regularly for the approximately one-year time frame in question. This included "disparag[ing] people when they were out of the office by complaining about their work skills, imitating their voices, and exaggerating their mannerisms and speech," as well as "rais[ing] their voices to employees on a frequent basis in the office." ROI II, Ex. 18, E3 Affidavit, p. 5. E3's impression was that "[Complainant] was a particular object of such behavior." Id. E1 observed that S2 tended to "mock [Complainant] first by repeating her words in a high pitched voice, before yelling at her." ROI II, Ex. 15, E1 Affidavit, p. 6. E1 also observed that "[S1] would not mock her as much, but would be more harsh in the words he used." Id. E2 observed S1's handling of an earlier incident involving a female staff member's claim of sexual harassment. Jeramy R. ROI, E2 Affidavit, p. 390. E2 explained that a female staff member "complained about sexual comments by someone else in the office" and "[S1] took that woman's email around to other staff members, showed it to them, thereby revealing the identity of the woman who made the complaint, who she was complaining about, and why..." Id. E7 testified to "witness[ing] the poor and patronizing treatment of women in the office first hand. Women were routinely ignored, dismissed or patronized. Sexual harassment was ignored by management." Jeramy R. ROI, E7 Affidavit, p. 381. E7 could not recall specific instances of conduct, but she was "surprised at how women were spoken to or dismissed during morning meetings...and women's achievements went unrecognized or dismissed." Jeramy R. ROI, E7 Affidavit, p. 381. There are also examples of conduct regarding female dress and cooking, which are not clearly problematic in themselves, but when considered in totality with S1 and S2's other conduct, likely contribute to an overall hostile work environment. E1 testified to recalling "[S2] commenting on [Complainant] making him chicken soup when he was sick, but I don't recall [S2] praising her for the legitimate work she did in the office." ROI II, Ex. 15, E1 Affidavit, p. 6-7. E1 also testified to observing that S2 "would sometimes comment on [Complainant's] choice of clothing." Id. at p. 7. E1 recalled one instance where Complainant wore a black outfit, and S2 asked her if there was a funeral that day; he also occasionally asked Complainant whether she was "really going to wear the clothing she had selected for that day." Id. at p. 7. (2) Work Assignments S1 and S2 also reassigned work from female members of the staff to male employees. For example, E3 testified that she witnessed S1 and S2 occasionally taking projects away from Complainant and giving them to a male equivalent. ROI II, Ex. 18, E3 Affidavit, p. 6. E3 also testified to an incident involving herself where S1 stormed out of a meeting complaining to other employees that E3 was not doing her job properly, and urging E2 to take over or supplement E3's note-taking duties at the meeting. Jeramy R. ROI, E3 Affidavit, p. 306. E1 testified to a discussion about the reorganization of duties he witnessed between Complainant, E5 and S1 where S1 questioned what the two women had been working on, and stated words to the effect of, "I don't know what you do here!" ROI II, Ex. 15, E1 Affidavit, p. 8. S2 allegedly stated that Complainant and E4 only worked on their own "pet projects." Id. S2's testimony confirms his reference to "pet projects": "I did refer to "pet projects" in that meeting as an illustration of why S2 and I were establishing priorities and implementing a management approach aimed at ensuring that the staff focused on our priority objectives, as opposed to self-directed assignments." ROI II, Ex. 9, S2 Affidavit, p. 11. E4 testified that while initiatives advanced by female staff members would be ignored, "on occasion, the same initiative seemed to be repackaged by [S2] or [S1] and given to male staff members to action." Jeramy R. ROI, E4 Affidavit, p. 376. E5 testified to observing that management purposely tried to avoid assigning Chief duties to a female employee, E6, instead giving these tasks to another male employee. Jeramy R. ROI, E5 Affidavit, p. 330. E5 also testified to S1 trying to sabotage projects E6 was working on, and seeing e-mails to that effect. Jeramy R. ROI, p. 336. E5 affirmed testimony that S1 stated to her in a "very loud and condescending manner" that he did not know what E5 did for work at the office during a discussion about an organizational chart S1 was proposing. Jeramy R. ROI, E5 Affidavit, p. 332. E6 also testified regarding her work assignments providing the example that one male employee contacted S1 stating that in absence of a Senior Advisor to the Ministry of Justice, E6 should be the point of contact to the Ministry because she was the Deputy Senior Advisor. Jeramy R. ROI, E6 Affidavit, p. 366-367. E6 also spoke to S1 regarding this issue, but E6 explained that S1 made the male employee the point of contact and did not add her to a distribution list related to the issue. Id. An Administrative Assistant (E8) also testified to her work being reassigned to a male employee. She explained that she created a database, but that management gave the database to a male employee, and subsequently declined to speak with her about concerns she had regarding changes he made to the database. Jeramy R. ROI, E8 Affidavit, p. 349-50. E8 reported that S1 asked her whether she was going to file an EEO complaint, but E8 explained to him that she just wanted to speak about the database. Id. at 349-51. Complainant discusses instances of belittlement when it comes to her own work product. For example, she describes an incident during which S1 berated her for several minutes over the request for an "action memo" and because Complainant utilized another format. ROI I, Ex. 7, Complainant's Affidavit, p. 20. Another incident involved a cable transmission during which S2 yelled at Complainant for having brought it up when they were on their way to a meeting. Id. at p. 21. Complainant also indicated that managers openly criticized her work as "bush league, poorly organized and substandard work." Id. Complainant's testimony alleges a number of other instances which occurred throughout her one-year detail. Taken together, these instances of conduct were pervasive enough to constitute a hostile work environment. Finally, the present case is analogous to other cases where the Commission has identified conduct to be sufficient to constitute a hostile work environment based on sex. For example, in Lee v. Dept. of the Interior, the Commission found that the complainant was subjected to a hostile work environment based on her age and sex in being yelled and screamed at by management about alleged work-related mistakes on a continuous basis. Lee v. Dept. of the Interior, EEOC Appeal No. 01A62376 (Aug. 25, 2006); see also, Gillespie, EEOC Appeal No. 0120080758 (finding yelling and belittlement of female attorney on a recurring basis regarding work product amounted to conduct to be not only severe but pervasive enough to alter the conditions of the complainant's employment and create an abusive work environment). The conduct involved management speaking loudly and aggressively and accusing her of not doing her fair share; the conduct caused the complainant severe stress and anxiety, made her cry, and "broke her spirit". Id. at *4. The agency in Lee argued, as the Agency argues in the present case, that the complainant had issues with her work product. Id. However, the Commission noted in Lee that the complainant's performance appraisals were "acceptable" and there was no evidence of the complainant's poor performance. Lee, EEOC Appeal No. 01A62376 at *4. There is a basis for imputing liability to the Agency because S1 and S2 were supervisors of the OROLC, empowered to take tangible employment action against Complainant. Vance v. Ball State, 133 S. Ct. 2434, 2443 (2013); see also, Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0720140021 (Aug. 19, 2015). Therefore, Complainant established by a preponderance of the evidence that she was subjected to a hostile work environment because of her status as a female. II. Complainant Proved That She Was Subjected To Reprisal For Engaging In Protected Activity Because She Demonstrated That The Agency's Articulated Reasons For Its Actions Were Pretextual Complainant alleged that she was subjected to reprisal for engaging in protected activity. The alleged instances of reprisal consisted of: (1) not allowing Complainant to extend her detail at the OROLC; (2) interfering with her application process for a position with the CRC; and (3) issuing her a false and defamatory performance evaluation for rating period October 2009 through October 2010. ROI I, p. 3-4. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 ((2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. A. Complainant Established A Prima Facie Case Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant engaged in protected activity by initiating the EEO process on September 26, 2010, and filing a formal discrimination complaint on November 29, 2010. ROI I, p. 2-3. Agency officials involved in the complaint were aware of her EEO activity, as S1 and S3 both testified that they were aware of Complainant's EEO activity in October 2010 when they were contacted by an EEO counselor during the informal complaint process.4 ROI I, p. 28; ROI II, Ex., 9, S1 Affidavit. Complainant also sent an earlier August 13, 2010 e-mail to S4 in which Complainant stated, "the sexism and lies and mistreatment have gotten to me." FAD, p. 7; see also, ROI I, Ex. 7, Complainant's Affidavit, p. 130. Complainant was subjected to adverse treatment by the Agency in not having her detail extended, not being selected for a position for which she claims management officials interfered with her application, and receiving a lowered performance appraisal. Nexus is established by the close proximity between Complainant's EEO activity in September and November 2010 and the alleged adverse actions. See, for e.g., Rodriguez v. Dept. of Homeland Security, EEOC Appeal No. 01A43894 (March 30, 2005) ("nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred"). Complainant was informed that her detail would not be extended in September 2010, that she would not be getting the position with the Civilian Response Corps in December 2010, and she received a negative performance evaluation on May 24, 2011. ROI I, p. 4, 8, 9-10. Therefore, Complainant established a prima facie case of reprisal discrimination. B. The Agency Stated Legitimate Nondiscriminatory Reasons The Agency stated legitimate, nondiscriminatory, reasons for the alleged adverse actions. First, the Agency maintains that Complainant's detail at the OROLC was not extended because she did not request an extension. ROI II, Ex. 12, E4 Affidavit, p. 12. According to the Agency, Complainant's statement that she "wanted to stay on only if the managers in Iraq left is hardly a reasonable request for an extension of her tour." FAD, p. 35. Second, the Agency states that while Complainant received the highest overall rating, she received a rating of "meets standards" for the performance element "Professional Responsibilities and Development" because "complainant was having difficulties interrelating with [S1] and [S2] the entire time." FAD, p. 34-35. The Agency acknowledged that the rating official told Complainant that "her situation with [S1] and [S2] factored into the evaluation." FAD, p. 35. Next, the Agency maintains that management officials at the OROLC did not interfere with Complainant's job application to the CRC by providing a negative reference as a result of retaliation for her EEO activity. FAD, p. 36. The Agency acknowledges that documentation from a CRC hiring official says, "spoke to [S3] and he said do not hire." FAD, p. 36 (citing, ROI II, Ex. 21). However, the Agency reasons that "[S3] was not accused of wrongdoing by complainant in her EEO complaint and there is no obvious reason why he would have wanted to retaliate against her." FAD, p. 37. The Agency contends that there is no reason why S3 would retaliate on behalf of S1 or S2. Id. Noting the inconsistency between the high performance evaluation S3 approved for Complainant, the Agency reasoned that: "It could be that [S3] was hesitant to give Complainant a poor evaluation even though he did not think especially highly of her work, and thought that was what she deserved because of institutional hesitation to provide poor evaluations." FAD, p. 36. The Agency further reasoned that "there is some basis in the record to conclude that [S3] viewed her as someone difficult to manage, for example, and did not want to lead the [hiring official] astray." FAD, p. 36. The Agency concluded that "while many others described an obviously hard-working, capable attorney, it is not uncommon for management officials and coworkers to perceive employees differently." FAD, p. 37. Therefore, the Agency stated legitimate, nondiscriminatory, reasons for the alleged instances of reprisal. C. Complainant Established Pretext The next issue is whether Complainant was able to show that the Agency's legitimate, nondiscriminatory, reasons were pretext for discrimination. A complainant "must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision." Burdine, 450 U.S. at 256. This is accomplished "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (citing, McDonnell Douglas, 411 U.S. at 804-805). 1. Request for Extension of Detail Regarding Complainant's request to extend her detail, management officials whom Complainant informed of her interest in extending her detail, on the condition that OROLC management changed, clearly did not follow up with Complainant regarding the extension request. For example, S3 admittedly did not follow-up on Complainant's request around summer 2010, which consisted of Complainant's explicit communication that she wanted to extend her detail. ROI II, Ex. 11, S3 Affidavit, p. 11. This was apparently due to the complaints from staff members about S1 and S2 which S3 received. Id. Complainant appeared to have communicated that she would not be interested in extending her detail in August 2010, however, shortly thereafter, she renewed her interest in extending the detail in an e-mail to S3 and S4, but on the condition that OROLC management, S1 and S2, changed. ROI II, Ex. 11, S3 Affidavit, p. 12. Neither S3 nor S4 responded to this e-mail, and even when Complainant expressed her disappointment to S4 in September 2010 about not being contacted about an extension of her detail given that there would be a leadership change at OROLC, there was still no follow-up. Id. at p. 14. Even though management officials state that Complainant did not definitively request an extension, Complainant's communications made it clear that she wanted to extend the detail and the circumstances under which it was possible for her to do so. Other evidence indicates that management, particularly S3, did not want Complainant to extend her detail at OROLC: "Even if [Complainant] had explicitly restated her desire to extend her tour, I am not sure that I would have supported [Complainant] receiving an extension. [Complainant] had served a full year already...and I was not certain that [Complainant] would have been a productive member of the office as the staff and leadership turned over." ROI II, Ex. 11, S3 Affidavit, p. 14. S3's views on this issue were likely informed by the fact that Complainant had EEO activity because there were no documented issues with her performance. Even if S3 did not want Complainant to extend her detail due to personality issues, the fact that neither official followed-up with Complainant's request is indicative of considerations beyond legitimate reasons. While there are many factors that would have influenced whether Complainant's extension would be granted, not following up on Complainant's request for the detail extension or being responsive in any way is likely to deter a reasonable person from engaging in protected activity. 2. Reference for CRC Position Complainant received the highest rating, "exceeds the standards," for the period of her OROLC detail. However, when S3 was asked to provide a job reference for her Civilian Response Corps application, the only documentation resulting from the reference he provided indicated that S3 communicated that the hiring official should not hire complainant. ROI II, Ex. 21. The hiring official testified that he did not recall the details of his conversation with S3 given the volume of applications he handled, but he did indicate that he may have paraphrased S3's words. ROI II, Ex. 13, p. 7. S3's testimony does establish that he personally observed a number of negative aspects to Complainant's personality, including that "she would get very close to me physically in the course of a conversation if she disagreed with me" and S3's difficulty in managing Complainant when he was assigned to the OROLC early in Complainant's detail. ROI II, Ex. 11, p. 5. However, while S3 may have genuinely experienced these issues with Complainant, they are not recorded in her performance appraisal, and the appraisal Complainant did receive did not warrant a reference that could be interpreted as advising not to hire Complainant. While the Agency asserts that S3 may have been hesitant to give Complainant a negative appraisal due to Agency culture, this cannot be relied upon to justify a reference in contradiction to the appraisal. 3. Performance Appraisal It is more likely than not that S3 and S5 took into consideration Complainant's relationship with S1 and S2 in finding that a rating of "meets the standards," rather than a rating of "exceed the standards" for the "Accountability for Professional Responsibilities and Development" performance element was warranted. While S5 maintains that he based this element of the evaluation solely on observations made by him and S3, S5 does not offer a sufficient basis for the rating. While the two other elements of the evaluation contained an explanation for the rating, the "Accountability for Professional Responsibilities and Development" did not contain any explanation. ROI II, Ex. 20, Performance Appraisal. S5 mentioned "the situation" that occurred at the OROLC by which he meant "difficulties she had with [S2] and [S1]" during his May 24, 2011 evaluation meeting with Complainant. ROI II, Ex. 10, S5 Affidavit, p. 9. S5 maintains that the only reason he alluded to "the situation" was to impress upon Complainant that it did not affect her evaluation. Id. Rather, S5 maintains that he "was working from an impression of her based on my time in OROLC," however, S5 "did not maintain a set of notes or recollections of incidents during the time our tours overlapped." S5 could not recall the instances of Complainant's conduct he personally observed that generated his impression of her as "too assertive" and "not hav[ing] the same level of interpersonal skills as [other employees]," but he did recall the issues Complainant had with S1 and S2 along with her EEO complaint.5 Aside from S5 not offering much support for the rating in "Accountability for Professional Responsibilities and Development," evidence reveals that S5 did not initially give Complainant a "meets the standards," rather, he initially rated her "exceeds the standards." ROI II, Ex. 11, S3 Affidavit, p. 18. S5 changed the rating to "meets the standards" only after receiving feedback from S3 that Complainant's rating should be changed. Id. S3 explained that he anticipated Complainant would have an issue with the rating, therefore, he advised S5 to "emphasize to her that the overall rating was excellent and that the rating for element 2 was not negative." ROI II, Ex. 11, S3 Affidavit, p. 18. However, according to S3, S5 communicated to Complainant in their May 24, 2011 meeting that "the rating reflected [Complainant's] interactions with [S1] and [S2]." Id. at p. 19. S3 told S5 that "it had been a mistake to say that to [Complainant] because the rating was not meant to reflect her interactions with [S1] and [S2], but, as he and I had discussed, was meant to be limited to what he and I observed." Id. These inconsistencies point to S3 and S5 having taken Complainant's EEO activity into consideration in formulating the "Accountability for Professional Responsibilities and Development" section of her appraisal. Therefore, Complainant proved by a preponderance of the evidence that she was subjected to reprisal discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, finding that Complainant was not subjected to a hostile work environment based on sex or reprisal discrimination, is REVERSED. The complaint is REMANDED for proceedings consistent with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to complete the following actions: 1. Offer Complainant a one-year detail as an Attorney at the Office of the Rule of Law Coordinator in Iraq or a substantially equivalent position in Iraq, Afghanistan, or similar conflict/post conflict nation.6 The offer must be made in writing, providing Complainant fifteen (15) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond in writing within 15 days of receipt of such offer shall be construed as a declination. 2. If Complainant does not accept a new detail, the Agency shall award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. § 1614.501(c), which was lost as a result of Complainant not being able to extend the original detail for one year.7 Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below. 4. Provide training to the Agency personnel responsible for the discrimination, mainly S1, S2, S3, and S5 placing special emphasis on an employer's obligation not to subject employees to discrimination based on gender or EEO activity. 5. Revise Complainant's performance evaluation for October 2009 through October 2010 making her performance in the "Accountability for Professional Responsibilities and Development" section "exceeds the standards." 6. Ensure that requests for professional references for Complainant are not directed to S1, S2, S3 or S5. 7. Post at the Office of the Rule of Law Coordinator in Baghdad, Iraq, copies of the notice discussed below. 8. The Agency shall consider taking appropriate disciplinary action against the Agency supervisors, S1, S2, S3 and S5 involved in the discrimination. 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). 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 all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at the Office of the Rule of Law Coordinator in Baghdad, Iraq, copies of the enclosed notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 5-12-2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant contends that the Agency erroneously considered evidence in Jeramy R. to arrive at a finding of no discrimination in her complaint. Complainant's Brief In Support Of Appeal (Complainant's Brief), p. 2. The Agency contends that it reviewed the records in Jeramy R. to ensure that the investigation in the present complaint was complete because of Complainant's allegation that the investigation was inadequate. Agency's Brief In Opposition To Appeal (Agency Brief), p. 2. The Commission takes administrative notice of the combined record in both cases to address concerns regarding the adequacy of the investigation in the present case. Testimony from employees in Jeramy R. support Complainant's claim of a hostile work environment based on sex. 3 The "but for" standard discussed in Nassar does not apply to retaliation claims brought under the federal sector provisions of Title VII and the ADEA because the relevant statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. § 623). See Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050, at FN 6 (July 16, 2014). 4 S4 also testified that Complainant approached her in July 2010 and explained that she thought S2 had a problem with Complainant and another female staff member. ROI II, Ex. 12, S4 Affidavit, p. 9-10. S4 joked to Complainant that S2 may have a problem with women because of his divorce. Id. 5 S5 also extrapolated the following without offering any specific events: "[Complaint] has what I would call a litigators approach to her work, which means that she will assess who agrees with her and who does not, then will work cordially with anyone who agrees with her and assertively challenge anyone who does not, including by making indirect challenges like speaking negatively about people to others in an effort to build support for her position." ROI II, Ex. 10, p. 9. 6 Complainant asked for this type of detail in her corrective action request. 7 There was a pay differential for service in Iraq. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-1971 17 0120131971