U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan V.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120141416 Agency No. 200P-0654-2013100886 DECISION On February 19, 2014, Complainant filed an appeal from the Agency's January 24, 2014, 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly determined that Complainant was not subjected to discrimination based on national origin and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer at the Agency's VA Medical Center (VAMC) facility in Reno, Nevada. Complainant had filed EEO complaints prior to the issues that arose in this complaint. On January 13, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic/Latino) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On September 26, 2012, the Chief of Police (S1) and the Interim Chief of Police (S2) asked Complainant if he wanted to "play the Latino card" when they informed him that they were investigating a complaint; 2. On September 30, 2012, shortly after his August 2012 promotion to Supervisory Police Officer, coworkers began asking Complainant to hire their friends, and he was alerted to the fact that there were hidden microphones and video cameras throughout the office; 3. On November 2, 2012, the Supervisory Human Resources Officer (HR1) notified Complainant that he needed to participate in an Administrative Investigative Board (AIB) investigation into allegations of disrespectful conduct of "an employee," but did not inform Complainant that the Complainant was in fact this employee. S3 then subsequently informed Complainant he was scheduled for a mental health examination; 4. On November 6, 2012, Complainant advised the facility and Veterans Integrated Service Network (VISN) directors that he was working in a hostile work environment and being subjected to retaliation, and he received no response; 5. On November 15, 2012, Complainant received notice from S2 that Complainant was the subject of an investigation that was scheduled to take place on November 19, 2012; 6. On November 19, 2012, Complainant was questioned about being disrespectful, but never told what the investigation really entailed; 7. On November 19, 2012, Complainant learned from the Training Coordinator (C1) that because of concern about scheduling issues, S2 suggested that Complainant report to another instructor (C2) who had been with Police Services for less time than Complainant; 8. On November 25, 2012, S2 denied the allegations of hidden video and audio recording equipment in Police Services. Additionally, someone posted a mug shot of an African American in Complainant's work station with Complainant's name under it; and 9. On November 30, 2012, Complainant had his annual psychological evaluation and was questioned about his personal history going back ten years, which was more extensive than his previous yearly examinations. 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The FAD determined that there was insufficient evidence in the record to establish that some of the alleged harassment occurred. The Agency decided that there was no evidence in the record of any hidden microphones or video cameras. The FAD decided that there was insufficient evidence in the record that a mug shot was posted with Complainant's name on it. According to the record, neither S1 nor S2 saw the photograph, and neither S1 nor S2 heard about the photograph until they were notified about the issues that had been accepted for investigation by the EEO investigator. According to S1 and S2, on September 26, 2012, they met with Complainant and told him that a coworker reported that Complainant regularly gossiped about patients and Agency employees and had said that he was "going to play the Latino card" if he did not get a job with another agency. S1 and S2 said that they asked Complainant if he had made a number of statements, including the "Latino card" statement, and Complainant denied making any of those statements. The FAD determined that S1 and S2 were investigating a coworker's report and that the "Latino card" phrase was not directly attributable to S1 or S2. The FAD concluded that some of the alleged harassment constituted Complainant's dissatisfaction with the Agency's job-related actions such as conducting an investigation, training, and a routine mental health examination. The Agency decided that these allegations did not constitute harassment. The FAD determined that Complainant's coworkers were not trying to circumvent the hiring process when they suggested that their friends would be a good fit for positions with the Agency. The FAD concluded that Complainant did receive a response to his November 6, 2012, complaint from his chain of command. According to the FAD, the AIB investigation followed all proper procedures. The Agency determined that HR1 did tell Complainant that the AIB was investigating his conduct and that he could have a representative present when he appeared. According to the FAD, the mental health examination was an annual requirement for Complainant's position and totally separate from the AIB investigation. With respect to incident 7, the FAD determined that Complainant was asked to attend C2's training, although Complainant was also an instructor, because Complainant's work schedule made it impractical for him to give the training himself. Finally, the FAD concluded that the annual psychological examination was not harassment. The FAD also decided that there was no apparent connection between the alleged harassment and Complainant's national origin or prior protected activity. The FAD determined that the alleged harassment was not sufficiently severe or pervasive to create a hostile work environment. Because the Agency determined that the alleged actions did not constitute unlawful harassment, the FAD did not analyze whether there was a basis for imputing liability to the Agency. CONTENTIONS ON APPEAL On appeal, Complainant contends that he experienced systemic harassment and retaliation at the Reno VAMC. Complainant argues that the Agency's FAD was an "insult to the EEO process" because it did not consider all of the relevant facts. In response, the Agency contends that Complainant has failed to identify any evidence that justifies reversing the Agency's final decision and requests that the FAD be affirmed. 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"). Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. With respect to the majority of the alleged harassment, Complainant's appeal does not identify sufficient evidence to conclude that he was subjected to harassment. The preponderance of the evidence in the record does not establish that the Agency had secret recording devices or that a mug shot was posted with Complainant's name under it. Many of the identified instances of harassment are nondiscriminatory job-related actions by the Agency, such as the mental health examination, the internal investigation, and assigning another instructor to give training because of scheduling issues. The alleged actions in claims 2 through 9 are insufficiently severe or pervasive to alter the terms of Complainant's employment. Per Se Violation Finally, we will address claim 1, which is that S1 and S2 asked Complainant if he was going to "play the Latino card." According to the record, on September 26, 2012, S1 and S2 called Complainant into an office and told him that they were investigating a complaint received from another Agency employee that Complainant had gossiped about patients and Agency employees and said that he was "going to play the Latino card" if he did not get a job that he had applied for with another Agency. S1 and S2 went through each statement that was reportedly made by Complainant, including the "Latino card" statement, and asked if he had made such a statement. Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Binseel v. Department of the Army, EEOC Request No. 05970584 (October 8, 1998) (complainant told that filing an EEO suit was the wrong way to go about getting a promotion); Woolf v. Department of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), request to reconsider denied, EEOC Request No. 0520090560 (August 21, 2009) (per se violation found when a labor management specialist told complainant "as a friend" that his EEO claim would polarize the office); Vincent v. United States Postal Service, EEOC Appeal No. 0120072908 (August 3, 2009), request to reconsider denied, EEOC Request No. 0520090654 (December 16, 2010) (per se violation found when supervisor during an employee meeting referenced that EEO complaints had been filed and said "what goes around, comes around"). When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process -- the ultimate tool that employees have to enforce equal employment opportunity -- the behavior is a per se violation. In the instant case, we find that two supervisors pulling Complainant into an office and asking if he said that he planned to "play the Latino card" in the context of investigating a complaint from another employee constitutes a per se violation because such behavior could have a chilling effect on the use of the EEO process. After a review of the entire record, we find that Complainant established that he was subjected to reprisal discrimination when S1 and S2 asked Complainant if he said that he planned to "play the Latino card." CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part and REVERSE in part, as the preponderance of the evidence in the record establishes that Complainant was subjected to a per se violation when S1 and S2 asked him if he had said that he was going to "play the Latino card," as described above. The matter is REMANDED and the Agency is ORDERED to comply with our Order below. ORDER The Agency is hereby ORDERED to take the following actions: 1. 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. 2. The Agency will immediately take steps to ensure that all reprisal ceases and desists in the facility. The Agency will ensure that it takes steps to immediately address any reports of reprisal brought to its attention, and that employees know that they can bring EEO concerns to Agency leaders. 3. Within 120 days of the date on which this decision becomes final, the Agency shall provide specialized, in person, 8 hour training to all Agency management officials at the Agency's Reno, Nevada facility regarding employees' rights and managements' responsibilities with respect to EEO laws, with special emphasis on retaliation. 4. The Agency shall consider taking disciplinary action against the responsible management officials who asked Complainant if he said that "he was going to play the Latino card." The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Commission does not consider training to constitute disciplinary action. 5. The Agency shall post the attached Notice of Discrimination, as described below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its VA Medical Center (VAMC), Reno, Nevada 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. 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 (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 6-9-2016 __________________ 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 01-2014-1416 2 01-2014-1416