U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renato K.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120141861 Agency No. HSICE213582012 DECISION Pursuant to 29 C.F.R. § 1614.403(a), the Commission accepts Complainant's appeal from the Agency's March 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. For the reasons stated below we AFFIRM in part and REVERSE in part the Agency's final decision. ISSUES PRESENTED The issues presented are whether the Agency properly determined that Complainant failed to establish that he was discriminated against and subjected to a hostile work environment on the bases of race (African American) and reprisal for prior EEO activity when, on October 17, 2011, Complainant learned that his former supervisor violated his privacy when the supervisor discussed Complainant's previous EEO complaint with a coworker, and when the supervisor left documents relating to the complaint investigation where others were able to view them. BACKGROUND At the time of the events giving rise to the instant complaint, Complainant worked as an Immigration Enforcement Agent, GS-1801-9, in the Enforcement and Removal Operations Division of the El Paso Field Office in El Paso, Texas. On December 9, 2010, Complainant filed a formal complaint (HS-ICE-00137-2010) alleging discrimination regarding his performance evaluation. On August 19, 2011, Complainant withdrew his request. This formal complaint forms the basis of the reprisal claim in the instant matter. The record reflects that, on or around October 17, 2011, Complainant's co-worker advised him that his former supervisor (S1) had discussed Complainant's former EEO complaint with her, and left documents regarding the complaint on his desk in plain view where anyone could see them. During the investigation of the complaint, the co-worker testified that S1 was her first-line supervisor while she worked in Chaparral, New Mexico, and Complainant was her co-worker out of the El Paso home office. She stated that in October 2011, she was asked to come to S1's office. When she arrived he closed the door because other employees were present. She stated that he asked her if she thought he was prejudiced or if his actions toward her were prejudicial, and when she asked him why he asked, he stated that Complainant had filed an EEO complaint against him for race discrimination. The co-worker stated that she did not report this incident to anyone other than Complainant. While in S1's office, the co-worker noted that Complainant's EEO documents had been left visible on the desk for anyone to see. She alleged that S1's office is never locked, the door is left open, and the office desk is generally uncluttered. The co-worker testified that the documents were in view for three days. S1 testified that he "[did] not discriminate against anyone based on their race. I do not recall ever speaking to [the co-worker] about any EEOs that I've been involved with. I do not recall leaving any such document where they could be seen by others." On April 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of Issue Presented above. 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. 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. STANDARD OF REVIEW 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 EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 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"). ANALYSIS AND FINDINGS Complainant alleged that the Agency subjected him to unlawful discriminatory harassment, in violation of Title VII on the bases of race and reprisal for prior protected EEO activity under Title VII when on October 17, 2011, he learned that S1 discussed his previous EEO complaint with a coworker, and left documents relating to the investigation where others were able to view them. We find that Complainant's allegation of harassment is misplaced because this incident, standing alone, was neither severe nor pervasive, and that there was no evidence of discrimination based on race. We do find, however, that the Agency's actions here constitute a per se violation of our regulations prohibiting retaliation. Per Se Violation of Retaliation At the outset, we reject the Agency's contention that the record was void of any evidence that this event actually took place. In this regard, we note the sworn affidavit by Complainant's co-worker dated February 23, 2013, she states that she was called into the Supervisor's office and asked whether she thought he were a racist. According to her sworn affidavit, when she asked why she was being asked this question, she was told that Complainant filed an EEO complaint against the Supervisor alleging discrimination based on race. In this same affidavit, the co-worker testified that documents pertaining to Complainant's EEO complaint were in plain view on S1's desk. Shortly thereafter, she reported the matter to Complainant. Complainant unrebutted testimony is that, prior to this time, the co-worker had no knowledge of his EEO activity. We find this to be corroboration of the co-worker's testimony. We also find S1's general assertion that he "did not recall" ever speaking to the co-worker about any "EEOs" that he had been involved with or recall leaving documents where they could be seen by others to be unpersuasive. While there is no evidence that Complainant suffered an adverse employment action regarding S1's discussion of his EEO complaint or the lack of discretion used regarding the documents pertaining to the complaint, we find that a per se violation of the retaliation statutes occurred. The test is whether an agency's action is reasonably likely to deter protected EEO activity by the complainant or another employee. As articulated in Section 8 of the EEOC Compliance Manual on Retaliation: The anti-retaliation provisions are exceptionally broad. They make it unlawful 'to discriminate' against an individual because of his or her protected activity. This is in contrast to the general anti-discrimination provisions which make it unlawful to discriminate with respect to an individual's 'terms, conditions, or privileges of employment.' The retaliation provisions set no qualifiers on the term 'to discriminate,' and therefore prohibit any discrimination that is reasonably likely to deter protected activity. They do not restrict the actions that can be challenged to those that affect the terms and conditions of employment. Thus, a violation 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. This broad view of coverage accords with the primary purpose of the anti-retaliation provisions, which is to maintain unfettered access to statutory remedial mechanisms. Regardless of the degree or quality of harm to the particular [complainant], retaliation harms the public interest by deterring others from filing a [complaint]. An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions. We find that the discussion of the Complainant's former EEO complaint, and the act of leaving documents pertaining to the complaint in plain view as described above would be reasonably likely to deter Complainant and others from engaging in protected EEO activity. S1 offered no explanation for the alleged actions, aside from denying that they occurred. This without more, or the benefit of a hearing, is not enough to defeat the testimony from the co-worker contained in the sworn affidavit and contained in the investigative file. We find that no other reasonable explanation for S1's conversation with the co-worker, or his leaving EEO documents out on his desk exists except to deter Complainant and others from engaging in protected EEO activity. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency's FAD with regard to claims of harassment and race discrimination for the reasons set forth in this decision. The Commission, however, REVERSES the FAD with respect to the claim of reprisal discrimination. We find that a per se violation has occurred, and that the Agency discriminated against Complainant in retaliation for engaging in protected EEO activity. We REMAND these matters to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ORDERED to take the following remedial actions: 1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's retaliation and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to S1 with a special emphasis on the duty of managers to avoid retaliating against employees. 3. The Agency shall consider taking appropriate disciplinary action against S1. The Agency shall report its decision to the Compliance Officer referenced herein. 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 the identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). 4. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order." 5. 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 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 El Paso Field Office in El Paso, Texas 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 (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 __12/16/16________________ 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 0120141861 2 0120141861