U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120141025 Agency No. 200P06482013101565 DECISION On January 6, 2014, Complainant filed an appeal from the Agency's December 6, 2013, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision and REMANDS the matter in accordance with the ORDER below. ISSUES PRESENTED Whether the Agency's finding that Complainant was not subjected to either race or reprisal discrimination in his 2012 performance appraisal is supported by the preponderance of the evidence in the record. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Agency's Medical Center in Portland, Oregon. The record reveals Complainant has filed at least two previous EEO complaints based on allegations of race discrimination. Specifically, in April 2010, Complainant filed an EEO complaint (Agency No. 200P-0648-2010101906) alleging he was discriminated against on the basis of race (African-American) when, among other claims, he was issued a "fully satisfactory" annual rating for Fiscal Year (FY) 2009. The record reveals that on or about December 22, 2011, an EEOC Administrative Judge (AJ) issued a finding of race discrimination (EEOC No. 551-2010-00159X) in Complainant's favor regarding his FY 2009 performance rating. Therein, the AJ found that the Agency failed to articulate a legitimate, nondiscriminatory reason for issuing Complainant the rating. In that regard, the AJ noted that the justification for the rating raised at the hearing involved matters which occurred after the rating was issued. The Agency was ordered to change the rating to "Excellent," pay Complainant the bonus he should have received, and pay Complainant $1,000.00 in non-pecuniary compensatory damages. On or about January 10, 2012, the Agency implemented the AJ's decision.2 On March 11, 2013, Complainant filed the instant EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected activity when, on November 6, 2012, he was rated "Fully Successful" for his FY 2012 performance rating based on input from the Assistant Hospital Housekeeping Officer (S2) while under nomination for "Housekeeper of the Quarter." The primary allegation in the instant complaint involves Complainant's claim that S2 retaliated against him by rating him "Fully Successful" on his FY 2012 rating. Complainant asserts that S2 was his former first level supervisor and responsible for his FY 2009 rating. Complainant alleged that his FY 2012 rating was unfair and retaliatory, and also alleged he was subjected to a hostile work environment. Complainant further alleged that he should have been nominated for "Housekeeper of the Quarter." The Agency denied that S2 contributed to the FY 2012 rating, and asserted that Complainant's first level supervisor (S1), was responsible for the rating. It explained that S2 only signed the rating because S1 was out on leave due to surgery at the time the ratings were issued. S1 averred that the rating was based on his and the Work Leader's perceptions of Complainant's performance and denied that S2 contributed to the FY 2012 rating. Complainant's third level supervisor (S3), who was also named in the prior complaint, corroborated management's testimony and averred that S2 did not contribute to the FY 2012 performance rating. She added that S1 left a list of employees with their respective ratings before he had surgery. Furthermore, she stated that the Administrative Officer asked S2 to sign the ratings in S1's absence. She averred that she "has no knowledge of [S2] having any input into [Complainant's] performance appraisal." Report of Investigation (ROI) at p. 126. When questioned about Complainant's prior EEO complaint, all management officials denied that Complainant had proven he was subjected to discrimination in any of his prior complaints. Furthermore, all management officials denied there was a "Housekeeper of the Quarter Award." The record contains e-mail correspondence between S1 and S3 describing events which took place when Complainant received his FY 2012 rating. The record is not entirely clear, but it appears that S1 originally told Complainant that S2 was in fact responsible for writing the FY 2012 rating. However, he later explained to S3 that he did this only in a panic when Complainant confronted him about the rating. See ROI at p. 181. The record also contains e-mail correspondence between Complainant and S3. Therein, Complainant advised S3 that he would be filing an EEO complaint due to retaliation. After explaining that the management team agreed Complainant deserved a "Fully Successful" rating, S3 remarked: I don't appreciate you threatening to file an EEO suit every time you are unhappy. I am always open to discuss issues with you but I feel your negative threatening approach is hostile and not conducive to a collaborative work environment. ROI at p. 182. When questioned about his justification for the rating itself, S1 averred that he and the Work Leader agreed that Complainant should receive a "Fully Successful" rating. He added: I had not had any bad reports or any good reports on [Complainant]. I never saw any recommendation for awards, Promise Pins or anything that showed he had done anything above and beyond. Just doing his job and that's Fully Successful. ROI at p. 114. The Work Leader also averred that Complainant received a "Fully Successful" rating because he never saw anything that justified a higher rating. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation 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 final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency dismissed Complainant's claim that he was subjected to a hostile work environment because Complainant's allegations were isolated. As to the remaining claims, the Agency found Complainant failed to prove he was subjected to discrimination or retaliation. The Agency also found that it articulated legitimate, nondiscriminatory reasons for its actions; namely, that S1 rated Complainant "Fully Successful" without any contribution from S2, except for his signature. S1 averred that he consulted with the Work Leader who indicated that Complainant deserved a "Fully Successful." The Agency further found no evidence of a prior finding of discrimination, and also determined that Complainant did not prove the Agency's reasons for its action were a pretext to discriminate against him. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant presented no contentions on appeal. The Agency asks that we affirm its final decision. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). After a review of the record, we find the Agency failed to articulate legitimate, non-discriminatory reasons for its actions. Specifically, we find the Agency's testimony largely addressed who authored the performance appraisal, but there is limited (if any) explanation for the rating itself. The rating itself states, "Have issue with work ethics in element No. 2," but does not elaborate, and none of the management officials discussed Complainant's work ethic. The work leader only stated that Complainant did not present anything to show he should be rated higher. However, Complainant averred that his prior ratings have been "Excellent" and that for this rating period, he believed he had gone above and beyond his call of duty. Indeed, the record contains Complainant's FY 2011 performance rating, dated October 20, 2011, wherein he received an overall rating of "Excellent." See ROI at p. 173. No one addressed how Complainant's performance changed between the two rating periods. Several months after the AJ issued his December 2011 decision finding discrimination in Complainant's prior complaint, the Agency issued Complainant his FY 2012 rating in November 2012, establishing a nexus between Complainant's EEO activity and his FY 2012 performance rating. In that regard, we find suspect that the management officials were either unaware or untruthful about Complainant's prior finding of discrimination. The management officials provided testimony in the instant case in June 2013 suggesting that they should have known about the finding at the time they completed their affidavits. The Agency's own investigative record contains a Request to Monitor Compliance dated January 10, 2012. Therein, the Agency recounts that it accepted the AJ's decision that Complainant was subjected to race discrimination when it issued him a "Fully Successful" performance rating for Fiscal Year 2009. See ROI at p. 85. It is followed by what appears to be excerpts of the Agency's final order. See ROI at 86-88. Furthermore, the Commission's records confirm that a finding of discrimination was made in the prior case EEOC No. 551-2010-00159X. Accordingly, we find it suspect that management denied Complainant's claim that these same management officials had previously discriminated against him. Finally, we note there is evidence of a retaliatory bias against Complainant in the record. We find S3's remarks that Complainant's EEO activity was "threatening," "hostile," and "not conducive to a collaborative work environment" are reasonably likely to deter EEO activity. A violation of Title VII will be found if an employer retaliates against a worker for engaging in protected activity through threats, harassment in or out of the workplace, or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees. See EEOC Compliance Manual on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998)(hereinafter Compliance Manual on Retaliation). In this case, the supervisor's conduct could have had a potentially chilling effect on the ultimate tool that employees have to enforce equal employment opportunity--the filing of an EEO complaint. As such, we find such evidence indicative of a retaliatory bias, as well as a violation of the anti-reprisal provision of Title VII in and of itself. Pursuant to Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a Complainant is protected from any discrimination that is reasonably likely to deter protected activity. See Compliance Manual on Retaliation, at 8-15. Compensatory Damages In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. Section 102(a) of the Civil Rights Act of 1991 (the 1991 CRA), codified as 42 U.S.C. § 1981a, authorizes an award of compensatory damages as part of the "make whole" relief for intentional discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates that compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. Section 1981a(b)(3) limits the total amount of compensatory damages that may be awarded to each complaining party for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, according to the number of persons employed by the respondent employer. The limit for an employer with more than 500 employees, such as the Agency herein, is $300,000. 42 U.S.C. § 1981a(b)(3)(D). If a Complainant alleges that he is entitled to compensatory damages and the Agency or Commission enters a finding of discrimination, the Complainant is given an opportunity to submit evidence establishing his claim. To receive an award of compensatory damages, a Complainant must demonstrate that he or she has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den., EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14 (Guidance). Further, to receive an award of compensatory damages, the Complainant must establish a nexus between the harm and the discrimination found. See Jacobs v. Department of the Army, EEOC Appeal No. 01982989 (August 30, 2001). Although Complainant averred that he suffered a "near death" or stroke-like experience as a result of the discrimination, we do not find that the Agency clearly provided Complainant with a sufficient opportunity to submit evidence establishing his claim. Accordingly, the Agency is directed to conduct a supplemental investigation into Complainant's entitlement to compensatory damages in accordance with the Order below. Remaining Claims With respect to Complainant's claim that the Agency should have picked him for "Housekeeper of the Quarter" we find insufficient evidence that such an award exists, and if it does, that Complainant was not selected due to a discriminatory or retaliatory motive. All witnesses denied such an award exists, and Complainant provided insufficient evidence to dispute their testimony. We find insufficient evidence establishing race discrimination in this case. Furthermore, we find the Agency's dismissal of Complainant's hostile work environment claim was appropriate because he did not state a claim of harassment. Rather, the Agency investigated his claims as disparate treatment allegations. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision in part, and REMAND the matter in accordance with the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action: 1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall rescind Complainant's FY 2012 annual evaluation and re-issue it at the "Excellent" rating level and provide Complainant with a retroactive bonus for the amount routinely given for receiving an "Excellent" rating. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The 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 sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The 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." The Agency shall pay complainant for any proven excess tax liability as a result of his back pay award. 2. The claims for compensatory damages and attorney's fees and costs are REMANDED to the Agency. The Agency shall conduct a supplemental investigation of the compensatory damages issue within one hundred and twenty (120) days after the date this decision becomes final. The Agency shall allow Complainant to present evidence in support of his compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than sixty (60) days after the Agency's receipt of all information. Complainant, through counsel, shall also submit a request for attorney's fees and costs in accordance with the Attorney's Fees paragraph set forth below. No later than sixty (60) days after the Agency's receipt of the attorney's fees statement and supporting affidavit, the Agency shall issue a final agency decision addressing the issues of attorney's fees, costs. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 3. The Agency shall take no retaliatory action against the Complainant for having filed and prosecuted this discrimination complaint. Furthermore, the Agency shall ensure that Complainant is no longer is required to report to either S2 or S3 in the future. 4. Within one hundred and twenty (120) days from the date this decision becomes final, The Agency shall conduct at least eight (8) hours of EEO training for S1, S2 and S3 to ensure that they become aware, and continue to be aware of, their obligations, responsibilities, and rights under EEO, including the right to work in an environment free from discrimination and retaliation. 5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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). 6. The Agency shall immediately post a notice in accordance with the paragraph below. 7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. POSTING ORDER (G0914) The Agency is ordered to post at its Portland, Oregon facility 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 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 5-27-2016 __________________ 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 In his second complaint, Complainant contacted an EEO Counselor in August 2012, when he alleged he was treated in a disparate manner regarding time and attendance issues (Agency No. 200P-0648-2012104390). This complaint was settled on October 1, 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-1025 2 0120141025