U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeramy R. 1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency. Appeal No. 0120132089 Agency No. OBD201100126 DECISION On April 10, 2013, Complainant filed a timely appeal from the Agency's March 11, 2013, final decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission REVERSES the Agency's FAD, and the complaint is REMANDED. ISSUES PRESENTED Did Complainant prove by a preponderance of the evidence that he was subjected to reprisal for engaging in protected EEO activity in the form of opposition to alleged sex discrimination? BACKGROUND Complainant worked as a Trial Attorney at the Office of the Rule of Law Coordinator (OROLC) at the United States Embassy (Embassy) in Baghdad, Iraq. FAD, p. 2.2 Complainant was on detail at the OROLC from another Agency division for the period January 2010 to February 2011. Id. 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. A tense and displeasing working environment developed at the OROLC, apparently as a result of S1 and S2's leadership of the office. See for example, Trial Attorney (E1) Testimony, Report of Investigation (ROI), Tab D-7, p. 26. This was well known within the office, and by other staff outside of OROLC that worked at the Embassy. E1 Testimony, ROI, Tab D-7, p. 27; Analytical and Administrative Support Staff Member (E2) Testimony, ROI, Tab D-8, p. 29 (testifying that the atmosphere of the office was extremely hostile; S1 and S2 were bitter that their conduct was reported to upper management in Washington, DC); Senior Advisor to the Ambassador (E3) Testimony, ROI, Tab D-13, p. 35. The treatment of women in the OROLC was notably worse than their treatment of men. A Foreign Service Officer (E4) at the OROLC, testified that: "Management treated women poorly and routinely ignored, dismissed and patronized them. Men, such as [Complainant] were treated equally as poor if they spoke up or did not participate in this behavior." E4 Testimony, ROI, Tab D-14, p. 36. Complainant observed that S1 and S2's actions included, "accusing women, in essence, of being worthless to the mission; verbally attacking their ability to do work and/or the quality or work; berating, mocking, insulting, and yelling at women and subjecting them to abusive sarcasm; ignoring or refusing to speak to women; excluding women from important events and meetings that they should have been involved in; refusing to ride in vehicles with female subordinates; taking the credit for the work of women personally or crediting other men; giving women less favorable assignments; and acting to deter women from availing themselves of the EEO process." Formal Complaint, ROI, p. 44. Subordinates of S1 and S2 at the OROLC met to discuss steps to take in order to address S1 and S2's conduct, and informally appointed Complainant and E1 to call the Counsel to the Office of the Deputy Attorney General for Rule of Law- Iraq (S3), to speak with him about the issues in the office. Formal Complaint, ROI, p. 46. In May 2010, Complainant and E1 spoke to S3, allegedly about the instances of misconduct against women in the office, as well as a few instances of mistreatment of male staff. Formal Complaint, ROI, p. 46. Immediately following this report, S1 and S2 started to have issues with Complainant. For example, S2 testifies that in May 2010, S1 "informed me that he was unhappy with [Complainant's] written work product, and that [Complainant] was becoming increasingly difficult to manage." S2 Interrogatory, ROI, p. 168. S2 stated that "from January to May 2010, [Complainant] impressed me as a generally good and loyal worker..." Id. However, according to S2, he was not aware that Complainant made any allegations of discriminatory treatment toward women. S2 Interrogatory, ROI, p. 173. Following Complainant's report in May 2010, S2 was called to Washington, DC to address the allegations made by Complainant, but S2 indicates that there was no mention of allegations of discriminatory treatment of women at the meeting in Washington, DC. Id. at 174. Similar to S2, S1 states that he was aware of the fact that Complainant made a complaint to S3 in May 2010, which resulted in S2 having to travel to Washington, DC to speak about the issues going on at the OROLC. S1 Interrogatory, ROI, p. 201. However, S1 indicates that he was unaware of an EEO aspect to the complaint. Id. S1 testified that he became aware that the complaint involved gender based claims in October 2010, upon being contacted by an EEO counselor. S1 Interrogatory, ROI, p. 206. S2 maintains that the first time he became aware of Complainant's participation in EEO activity was late September or early October 2010, upon being contacted by an EEO counselor regarding issues raised to the counselor by the Complainant. S2 Interrogatory, ROI, p. 175. On March 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. From May 2010 to November 2010, OROLC management officials subjected him to a hostile work environment after he complained about their abusive, cruel, degrading and discriminatory treatment of women in the office; 2. On or about November 6, 2010, OROLC management officials aggressively attempted to damage his career and professional reputation before they left Iraq by providing false and misleading statements to the incoming Rule of Law Coordinator and other management officials. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a FAD. See 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to the alleged reprisal discrimination. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant asserts that the Agency has repeatedly refused to produce documents which would provide further support for Complainant's claims. Complainant's Brief In Support Of Appeal (Complainant's Brief), p. 2. Complainant asserts that he engaged in protected activity by reporting S1 and S2's discriminatory treatment of women to officials at the Agency. Complainant's Brief, p. 3-29. Further, Complainant asserts that S1 and S2, as well as other management officials were aware that he engaged in protected activity, given his reports that S1 and S2 mistreated women in the OROLC. Id. Complainant urges that the numerous employees within the Agency that testified on his behalf on these elements of his claim should be accorded weight. Complainant's Brief, p. 24. II. Agency's Contentions On Appeal The Agency contends that even though Complainant did in fact complain about S1 and S2's mistreatment of staff in May 2010, the complaint was not specific to women, and Complainant did not indicate that he was complaining about S1 and S2 engaging in discrimination against women. Agency's Brief In Support Of Appeal (Agency's Brief), p. 2. The Agency asserts that the many employees who testified Complainant was treated badly by management did not indicate that management's treatment of Complainant changed at any point, and that management treated everyone badly. See for example, Agency's Brief, p. 2. The Agency relies heavily on the fact that there is no documentary evidence of the type of complaint that was made in May 2010. The Agency urges that because of this, Complainant cannot prove essential elements of his claim, mainly that he engaged in protected opposition and that management was aware of his protected activity in May 2010. See generally, Agency's Brief.3 ANALYSIS AND FINDINGS The Agency contends that Complainant cannot prove by a preponderance of the evidence that he was retaliated against for engaging in protected opposition. I. Complainant's Prima Facie Case Protected activity consists of: (1) "opposing a practice made unlawful by one of the employment discrimination statutes (the"opposition" clause)"; or (2) "filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute (the "participation" clause)." EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998). Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he 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). A. Complainant Engaged In Protected Activity Of Which The Agency Was Aware Reporting sex discrimination or a sexually hostile work environment constitutes protected activity. See 42 U.S.C. § 2000e-5; Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). In order to have engaged in protected opposition, Complainant must have: (1) "explicitly or implicitly communicate[d] a belief that the practice constitutes unlawful employment discrimination;" and (2) "a reasonable and good faith belief that the opposed practices were unlawful." EEOC Compliance Manual, Section 8: Retaliation, No. 915.003 (May 20, 1998); see also, Carter v. U.S. Postal Serv., EEOC Appeal No. 01A53912 (Aug. 22, 2006). Complainant engaged in protected opposition on May 15, 2010, when Complainant and E1 spoke to S3 about S1 and S2's conduct toward staff at the OROLC, which included allegations of mistreatment of female staff. S3 Interrogatory, ROI, p. 256. Complainant communicated to S3 specific concerns about the particularly egregious treatment of at least one female staff member, E3, which S3 recalls in his testimony as a particular concern Complainant communicated. S3 Interrogatory, ROI, p. 260. However, S3 maintains that Complainant's communication to him on May 15, 2010 only referenced examples of S1 and S2's mismanagement, and not examples of discrimination against women. S3 Interrogatory, ROI, p. 261. Other evidence in the record establishes that even though Complainant and E1 reported incidents affecting both men and women, most of the misconduct they alleged was against women. See for example, E1 Interrogatory, ROI, p. 287. E1 testified that subsequent to the May 15, 2010 conversation with E3, S3 asked her to write an e-mail about the tirades S1 and S2 engaged in, particularly the ones "not including women." Id. at 291. Notably, S2 spoke to E3 in November 2010, and apologized to her for losing his temper, and also tried to convince her that his mistreatment of her was exaggerated. E3 Interrogatory, Tab D-13, ROI, p. 35. S2 specifically indicated to E3 that Complainant had filed a complaint in Washington, DC. Id. at 375. This set of circumstances supports a conclusion that Complainant communicated a belief that S1 and S2's treatment of women constituted unlawful discrimination, and given the testimony of the numerous employee witnesses at the Agency, Complainant had a reasonable and good faith belief that S1 and S2's conduct constituted unlawful sex discrimination. Combined with the fact that Complainant asked the Agency for electronic discovery on the issue of his May 15, 2010 complaint which the Agency failed to provide, the set of circumstances supports a finding that Complainant engaged in protected activity in May 2010 of which S1 and S2 and were aware. The Agency also admitted to knowledge of Complainant's participation in an EEO case in September 2010 or October 2010, upon being contacted by an EEO counselor. S1 Interrogatory, ROI, p. 206; S2 Interrogatory, ROI, p. 175.4 B. Complainant Was Subjected To Adverse Action And There Is A Nexus Between The Protected Activity And The Adverse Action After the May 15, 2010 complaint, S1 and S2 mistreated Complainant by making disparaging comments about Complainant, excluding him from meetings, and finding issues with his work. Their conduct resulted in Complainant not being able to extend his detail at the OROLC. See for example, E1 Interrogatory, ROI, p. 289 (testifying to overhearing disparaging comments about Complainant). This was apparently amplified once S2 returned from a meeting in Washington, DC in July 2010, which was held to discuss the allegations raised by Complainant and E1 in May 2010. See for example, E2 Interrogatory, Tab D-8, ROI, p. 28. Testimony also establishes that S1 and S2 did not have any issues with Complainant until his May 2010 complaint. S2 testified that in May 2010, S1 "informed me that he was unhappy with [Complainant's] written work product, and that [Complainant] was becoming increasingly difficult to manage." S2 Interrogatory, ROI, p. 168. S2 stated that "from January to May 2010, [Complainant] impressed me as a generally good and loyal worker..." Id. S1 and S2's mistreatment of Complainant continued after notification that Complainant participated in EEO activity in September/October 2010. Therefore, Complainant was subjected to adverse action, and a nexus is established by the close proximity of time between the protected conduct and adverse action. Complainant established his prima facie case of reprisal by a preponderance of the evidence. II. Agency's Legitimate Nondiscriminatory Reason and Complainant's Showing Of Pretext Once a complainant establishes a prima facie case, the burden shifts to the agency to "rebut the presumption of discrimination by producing evidence" that the adverse actions were taken "for a legitimate, nondiscriminatory reason." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To accomplish this, the agency must clearly set forth, through the introduction of admissible evidence, the reasons for the complainant's rejection. The explanation provided must be legally sufficient to justify a judgment for the agency. Id. at 255. 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 Corp. v. Green, 411 U.S. 793, 804-805 (1973)). Supervisors maintain that incidents involving Complainant were a result of management issues and personality conflicts between S1, S2 and Complainant. See for example, Agency's Brief, p. 7. Complainant is able to establish pretext for a number of reasons. A. Interactions With Complainant Subsequent to His Complaint First, the incidents involving the alleged personality conflicts with Complainant started only subsequent to his report of S1 and S2's conduct in May 2010. A number of employees testified to the fact that the harsh everyday conduct against Complainant only commenced after he made the May 2010 complaint. A Deputy Principal Officer, Foreign Service Officer (E5), testified that when S1 and S2 learned that their alleged discriminatory conduct had been reported, "they were upset, which resulted in discriminatory and retaliatory treatment toward [Complainant]." E5 Interrogatory, ROI, Tab D-15, p. 37. E5 attested that staff witnessed comments referencing Complainant as "a troublemaker, who was disloyal, untrustworthy and dishonest." Id. E5 also testified that "it became clear that [S1] and [S2], upon learning that their conduct had been reported by [Complainant], became preoccupied with the reports of their abusive treatment of female staff...they were extremely upset and [Complainant's] time at the Embassy became progressively worse under their leadership up until the time that I left." E5 Interrogatory, ROI, Tab D-15, p. 388. E4 also testified that when Complainant challenged management's treatment of women, he was punished as a result. E4 Interrogatory, ROI, Tab D-14, p. 36. E1 testified that after management became aware of who complained about their actions, they spoke negatively to Complainant. E1 Interrogatory, ROI, Tab D-7, p. 28. E2 testified to the fact that management treated Complainant badly only after his May 2010 complaint. See E2 Interrogatory, ROI, Tab D-8. Specifically, E2 indicated that following S2's trip to Washington DC to address Complainant's allegations, the negative comments and treatment of Complainant became more hostile. Id. at 29. A Senior Attorney (E6), testified that S1 and S2 treated Complainant as though he had "snitched" on them. E6 Interrogatory, ROI, Tab D-9, p. 30. Further, E6 had a meeting with S3, and indicated that S3 told her S2 said his biggest mistake was hiring Complainant. Id. at 30. E3 testified that S2 approached her at an Embassy reception and during their conversation S2 stated that Complainant had filed a complaint against him, but that she "shouldn't take his complaint seriously." E3 Interrogatory, ROI, Tab D-13, p. 35. S2 allegedly stated to E3 that Complainant "had exaggerated and shown poor judgment when submitting the EEO complaint." E3 Interrogatory, ROI, Tab D-13, p. 376. E3 also indicated that while she witnessed Complainant being cut off from work issues and ignored by management once he began supporting the women in the office, management's treatment of Complainant became increasingly bad after May 2010, as relayed to her by colleagues and friends still working at the OROLC. Id. at p. 374. E3 indicated that Complainant's EEO activity, presumably the complaint that he made in May 2010, "is the only reason for management's mistreatment of him...[Complainant] was well known as a committed, high performing, staff member and the only potential black mark against his name was the EEO activity." Id. at p. 375. B. Issues With Complainant's Work Product Subsequent To His Complaint S1 and S2 also started to identify issues with Complainant's work subsequent to his May 2010 complaint, when there were no issues and Complainant was regarding as an outstanding employee prior to his complaint. For example, S2 testified that from January to May 2010, [Complainant] impressed me as a generally good and loyal worker..." S2 Interrogatory, ROI, p. 168. S2 noted that he began to have issues with Complainant's written work product. Id. S2 indicated that "in the latter part of the January-May period, [S1] informed me that he was unhappy with [Complainant's] written work product, and that [Complainant] was becoming increasingly difficult to manage." Id. Despite the overwhelming consensus of the OROLC that Complainant was an outstanding attorney, S1 maintains in his testimony that Complainant had issues with his work. Apparently, S1 and S2 communicated with the new Rule of Law Coordinator (S4), who replaced S2, that S1 and S2 did not think Complainant "performed well during his Iraq deployment." S4 Interrogatory, ROI, p. 245. S4 indicated that he "did not afford any weight to their assessments of [Complainant's] work, as [he] had also heard good things, and [he] believed [S1] and [S2's] views were based in large part on personality conflicts rather than work product." S4 Interrogatory, ROI, p. 247. S4 indicated that a number of other attorneys told him that [Complainant's] work performance was outstanding, which had more impact. Id. at p. 21. Other evidence in the record evinces that Complainant produced outstanding work, further discrediting the testimony of S1 and S2 that Complainant's work product had issues which resulted in disagreements. For example, one former employee of the OROLC and the Agency, a Reporting Office and Executive Assistant (E7), testified that "colleagues and management-level staff outside the ROLC office considered [Complainant's] work product beyond reproach." E7 Interrogatory, ROI, Tab D-6, p. 26. Further, E7 indicated that "[S1] and [S2] permitted their personal dislike of [Complainant] to color their impressions of his work product." Id. Complainant's 2008 and 2009 performance appraisals, issued from a different division of the Agency, also discredit S1 and S2's indications that there were issues with Complainant's written work product. For example, Complainant's annual performance evaluation issued in August 2009 states that "as we have noted in past performance appraisals, it is difficult to find a sufficient number of superlatives to characterize [Complainant's] continuously outstanding contributions to the mission of the...Department of Justice." ROI, p. 424. Similarly, Complainant's evaluation issued in August 2010, encompassing the detail at the OROLC, makes no mention of issues with Complainant's work product and similarly states that Complainant's contributions to the Agency are "unsurpassed." ROI, p. 433. Finally, even though S1 and S2 indicated that there were issues with Complainant's written work product, a contention which the record demonstrates was opposed by both co-workers and other managers, Complainant was given more responsibilities in the form of another assignment with the Office of Provincial Affairs. See for example, S1 Interrogatory, ROI, p. 211. If Complainant was not successful in performing the duties he already had with the OROLC, such as not meeting his supervisor's standards for written work product, it is unclear why S1 and S2 thought that giving Complainant additional work or a new assignment was appropriate. C. Management's Comments About Complainant S1 and S2 made a number of disparaging comments about Complainant, the substance of which is clearly controverted by the record. S4 reported that "[S1] and [S2] had difficulties with [Complainant] and did not think he had performed well during his Iraq deployment." S4 Interrogatory, ROI, p. 245. S4 further explained that they thought Complainant was not a "productive member of OROLC." Id. at 245. E1 testified that S2 stated to her that "he'd be happy if [Complainant] would leave the office." E1 Interrogatory, ROI, p. 296. E2 testified that E4 related to her that Complainant was "incompetent." E2 Interrogatory, ROI, Tab D-8, p. 311. To the extent S1 and S2 contend that Complainant was disrespectful toward them, other employees rebut this contention in testifying that Complainant would "never be disrespectful" but that there were instances where S1 was "very harsh on [Complainant]. E6 Interrogatory, Tab D-9, ROI, p. 324. E6 also testified that S4 told her S2 indicated "[S4's] biggest mistake in helping the Rule of Law Office was hiring [Complainant]..." Id. at p. 336. The comments made by S1 and S2 go beyond merely commenting on Complainant's work product or any personnel issues they assert they have had with Complainant. Similarly, the record does not support a conclusion that all of the instances of alleged misunderstanding was due to alleged personality conflicts. The entirety of the circumstances which include a difference in treatment of Complainant directly following his EEO activity, the non-credible assertion that Complainant's work product had issues, and the comments made about Complainant which go beyond his work product or personnel issues, strongly indicate that the Agency's non-discriminatory reason is pretext for discrimination. Further, the record does not support the conclusion that the adverse actions were due to some other nondiscriminatory reason not articulated by the Agency. Therefore, Complainant proved by a preponderance of the evidence that he was subjected to unlawful reprisal for opposing conduct he reasonably believed to be 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 reprisal discrimination is REVERSED. The complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to take the following actions: 1. Offer Complainant a one-year temporary detail as a Trial Attorney at the Office of the Rule of Law Coordinator in Baghdad, Iraq, or a substantially equivalent position, at a location mutually agreeable to both the Agency and Complainant.5 The offer should be made in writing, providing Complainant 15 (fifteen) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond within the 15 day time limit shall be construed as a declination.6 2. If the Agency and Complainant do not agree to 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 within 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. 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. Calculate compensatory damages for harm caused by retaliating against Complainant for his EEO activity. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. 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." 4. Ensure that requests for professional references for Complainant are not directed to S1 or S2. 5. Provide training to the Agency personnel responsible for the reprisal, mainly, S1 and S2, placing special emphasis on an employer's obligation not to take retaliatory action against an employee because of their opposition or participation in protected activity, such as the EEO counselor contact in the present case. 6. Post at the Office of the Rule of Law Coordinator in Baghdad, Iraq, copies of the notice discussed below. 7. The Agency shall consider taking appropriate disciplinary action against the Agency supervisors 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 attached 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 becomes final, 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 Complainants 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 11-19-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. 2 Agencies are required to bookmark complaint files transmitted to the Office of Federal Operations in accordance with a specific format. See Management Directive 110, Appendix L (Aug. 5, 2015). The file associated with this complaint does not contain any bookmarks specifying the various documents. 3 The Agency also argues that Complainant was required to prove that the desire to retaliate was the "but-for cause" of the adverse actions in question. See Agency's Brief, p. 4 (citing, University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2528 (2013). "The "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and in 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 Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120041 (Mar. 15, 2015) (citing, Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014). Regardless of this, the record supports a conclusion that the adverse actions taken against Complainant would not have occurred "but for" reprisal. 4 Relevant management officials were also informed of E1's additional unrelated EEO activity even prior to May 2010. S2 indicated that at the time Complainant and E1 spoke to S3, management was "aware of [E1's] EEO claim." S2 Interrogatory, ROI, Tab D-2, p. 173. As S2 explained, S1 reported in April/May 2010 that E1 had filed an EEO complaint against a manager. Id. at p. 171. Management closely associated Complainant and E1 due to the fact that E1 accompanied Complainant in the May 2010 report to S3, and in blaming Complainant and E1 for the discord within the office. S2 states that "later in May, both [Complainant] and [E1] became increasingly bold in their dealings with [S1]." Id. at 171. The record is replete with management's suggestions of a close association between Complainant and E1. See for example, S1 Interrogatory, ROI, Tab D-2, p. 194. These circumstances give rise to a strong inference that management suspected Complainant's May 2010 report had EEO implications or would eventually give rise to an EEO complaint. 5 This relief is being awarded because Complainant indicated that he wanted to extend his one-year detail at the OROLC, but did not have the opportunity to do so because of the adverse treatment toward him by S1 and S2. There was a pay differential for service in Iraq. See ROI, p. 8. 6 Complainant's requested a one-year detail as relief for reprisal, or compensation for the lost opportunity of completing the one-year extension. Complainant and his co-workers testified that he was subjected to hostile and often degrading treatment by S1 and S2, which included being excluded from meetings, having to do work in two positions, and enduring comments about his character and the fact that he reported S1 and S1's treatment of women in the office. Given the circumstances, Complainant found it impossible to work another year in an extension of his detail to the OROLC under the supervision of S1 and S2, and the record reveals that he wanted to end his detail early. However, upon finding out that S4 would gain supervision of the office, Complainant wanted to extend his detail, but his replacement had already been given a deployment date, and Complainant was not permitted to extend his detail for another year. See S4 Interrogatory, ROI, Tab D-4, p. 249. Therefore, since the actions of S1 and S2 led to Complainant not requesting an extension at an earlier time, it is appropriate for the Agency to offer a new detail. 29 C.F.R. §1614.501(c). 7 There was a pay differential for service in Iraq, even though Complainant continued his employment with the Agency subsequent to the end of the detail. See ROI, p. 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2013-2089 2 0120132089