U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thomas M.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. Appeal No. 0120152584 Agency No. 14-0107-WAPA DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's June 29, 2015 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Contract Specialist, GS-12, at the Agency's Desert Southwest Region, Western Area Power Administration in Phoenix, Arizona.2 On September 10, 2014, Complainant filed a formal EEO complaint claiming the Agency discriminated against him based on disability and in reprisal for prior EEO activity when on or about August 6, 2014, his warrant authority was removed by the Vice President of Procurement, and the warrant authority removal was signed by the Executive Vice President and Chief Operations Officer. Complainant further alleged the Vice President of Procurement accused him of exceeding his warrant limit, submitting poor work products, and authorizing an unprofessional email to a contractor. The Agency accepted the complaint and conducted an investigation. The following relevant facts were developed during the investigation: Complainant stated that he was diagnosed with post-traumatic stress disorder (PTSD) and depression since approximately 1991 or 1992. He said his first level supervisor and the Team Lead had been aware of his disability for approximately two years before the events that precipitated the filing of his complaint. Complainant also stated that the Vice President of Procurement and Chief Operating Officer became aware of his disability before Complainant's warrant authority was removed. During the relevant period, Complainant held a warrant authority of $500,000 issued on December 15, 2011. The appointment was limited to procurement contracts, simplified acquisitions, interagency agreements, and deliver or task orders not to exceed $500,000. On July 9, 2014, Complainant participated in a conference call with the Vice President of Procurement, who was also the Supervisory Contract Specialist, regarding a solicitation/award package that Complainant had prepared for the Vice President's review. The Team Lead also participated in the conference call. The Vice President asked Complainant questions regarding the award package, and there was no dispute that Complainant had difficulty answering the Vice President's questions. Complainant perceived the conference call to be hostile. Following the conference call, the Vice President emailed Complainant regarding alleged inconsistencies and questionable items in the award package. Among other matters, a Specialist had questioned why Complainant was acting as a Contract Officer on an action exceeding Complainant's $500,000 warrant. In a July 10, 2014 response to the Vice President, Complainant wrote that his "interpretation of the warrant is the obligation of funds. To date, there is still no obligation of funds." Complainant also indicated that he was unable to focus, and having difficulties with detailed-oriented tasks. The record contains a copy of a document entitled "Determination and Findings: Termination of Contract Appointment" letter dated July 21, 2014, prepared by the Vice President. Therein, the Vice President placed Complainant on notice that he had exceeded his delegated authority and thereby created unnecessary risk for the federal government. The Vice President noted that Complainant released a solicitation and made a determination on a contract valued at over $7.4 million. The Vice President also noted that Complainant "negotiated contract terms and conditions with the apparent successful offer as the contracting officer." The Vice President defined Complainant's work and decisions as "questionable." Thereafter, Complainant's supervisor asked the Vice President to consider reducing rather than eliminating Complainant's warrant authority because of workload concerns in his department, suggesting increased supervision and training, and the Vice President agreed to that proposal. On August 4, 2014, Complainant's warrant authority was reduced from $500,000 to $150,000. On August 6, 2014, following a discussion with the Vice President and his supervisor, Complainant refused to accept the reduced warrant authority. On August 11, 2014, Complainant's reduced warrant authority was terminated. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b). In its June 29, 2015 decision, the Agency found that Complainant failed to establish by a preponderance of the evidence that the reduction in his warrant authority was motivated by his prior protected activity. The Agency found, however, Complainant demonstrated that consideration of his disability may have been one of the motivating factor in the Agency's adverse action. The Agency, however, then concluded that clear and convincing evidence established that it would have taken the same action even if the discriminating factor was not present - in other words, that Complainant's warrant authority would have been rescinded regardless of his disability. As such, the Agency determined that Complainant was not entitled to personal relief for his claims. Thus, the Agency limited Complainant's relief for the disability discriminatory action to an award of legal costs, noting Complainant was not represented by an attorney. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find that Agency management articulated some legitimate, nondiscriminatory reasons for its actions. The Vice President stated that during the relevant period he had concerns about Complainant's performance and then discovered that Complainant had engaged in work on a contract that far exceeded his monetary authority. The Vice President stated that Complainant demonstrated "a lack of sound business judgment and he acted outside the scope of his delegated Warrant authority. So, in order to reinforce training and do some other things we collectively made the decision ... that we would reduce his warrant to the Simplified Acquisition Threshold until we could reinforce that training, go over all the infractions that had occurred and the goal was to eventually to get his warrant back to $500,000.00." Further, the Vice President explained that when confronted with these concerns, Complainant responded that he didn't "give a shit about any of this" and he turned in his warrant to his supervisor and told him that he would no longer be the Contracting Officer. As a result, the Vice President said that they "just went through the process as far as accountability to do the letter to have the warrant terminated but it was on his own accord that it was terminated." The supervisor stated that during the August 6, 2014 meeting with Complainant and the Vice President, he was surprised when Complainant "brought up the issue of the PTSD having an effect on his ability to be warranted because my concern was - okay, so what kind of things may push you over the top that makes this something he can deal with or not deal with...I never really got anything that said - from a doctor that said 'hey, ... [Complainant] is on medication for different things.' ... But I didn't realize he was on medication...and that was the - - thing we start talking about the PTSD. Here this is something that is mood swinging that may affect your judgment when you are signing your Government contracts." Regarding the removal of Complainant's warrant authority, the supervisor stated he felt it was "a heat of the moment" when Complainant shouted profanities at the Vice President and stated that he wanted his warrant authority removed." The supervisor added that Complainant, "made that statement before the recommendation came actually even back through us [to remove the warrant]." We find that the responsible management officials have articulated legitimate, non-discriminatory reasons for removing Complainant's warrant. To the extent that the supervisor conceded that the more detailed information Complainant provided during the confrontation about his PTSD may have influenced his thinking about the warrant issue, the Agency, in its final decision, has conceded that this may be a mixed motive case as consideration of Complainant's disability may have been one of many factors that was taken into account in pulling the warrant authority. Cases such as this, in which an Agency acted on the bases of both lawful and unlawful reasons, are known as "mixed motive" cases. Prior to the Civil Rights Act of 1991 (CRA), an employer could avoid liability in mixed motive cases if it could show that it would have made the same decision even absent the unlawful factor. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The CRA, however, effectively overruled the part of Price Waterhouse which allowed an employer to avoid liability in this way. 42 U.S.C. ? 2000e-2(m). A complainant is not required to present direct evidence of discrimination to prove discrimination was a motivating factor for the employment practices at issue in mixed motive cases. Desert Palace Inc. v Costa, 539 U.S. 90, 101 (2003). Once a complainant demonstrates that discrimination was a motivating factor in an agency's action, it is the agency's burden to demonstrate by clear and convincing evidence that it would have taken the same action even if it had not considered the discriminatory factor. If an agency is able to make this demonstration, a complainant is not entitled to personal relief (such as reinstatement, back pay, or compensatory damages), but may be entitled to declaratory relief, injunctive relief, and attorneys' fees and costs. See Walker v. Social Security Admin., EEOC Request No. 05980504 (April 8, 1999). Here, we conclude that the evidence of record supports the Agency's finding that it has met its burden of proving, by clear and convincing evidence, that it would have taken the same action despite Complainant's disability. The evidence of record shows that Complainant was legitimately questioned about significantly exceeding his warrant authority, was unable to properly answer the questions posed, and responded angrily that he no longer wanted the warrant. Management proposed reducing his warrant and providing him with more supervision and training, but Complainant refused. For these reasons, the record indicates that he would have lost the warrant regardless of his disability disclosure. As such, we concur with the Agency that Complainant is not entitled to personal relief, including non-pecuniary compensatory damages as requested. Finally, we note that on appeal, Complainant raises new claims for the first time, alleging he was subjected to harassment and a hostile work environment when other employees made threats against him; in November 2014, he received an annual performance with a lower rating than previous performance appraisals; and was denied training. These claims, however, were never raised during pre-complaint processing or in the formal complaint. To the extent that Complainant wishes to pursue further these matters, he is advised to contact an EEO Counselor. CONCLUSION Based on a thorough review of the record, we REMAND this matter to the Agency for further processing in accordance with the ORDER below.3 ORDER To the extent, it has not already done so, the Agency is ordered to take the following actions within 60 days of the date this decision is issued: 1. The Agency shall give Complainant written notice of his right to submit documentation of legal costs related to pursuant of his disability claim in the EEO complaint process. Within sixty (60) calendar days of the date the Agency receives Complainant's evidence of costs related to his disability claim, the Agency shall issue a final decision on Complainant's entitlement to the award of those legal costs in accordance with 29 C.F.R. § 1614.110. 2. The Agency shall provide at least four hours of training to the relevant management officials regarding their responsibilities under the Rehabilitation Act. 3. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order." 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 Desert Southwest Region facility in Phoenix, Arizona, 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 December 14, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The record reflects that in May 2015, Complainant accepted a job at a different federal agency. 3 On appeal, Complainant does not challenge the October 6, 2014 partial dismissal issued by the agency regarding two other claims (that he was discriminated against on the bases of disability and in reprisal for prior EEO activity when on September 3, 2014, a Contract Specialist from the Corporate Services Office (CSO) said they had "heard all about you at CSO;" and he was told by a Procurement Analyst to modify his access level in the Strategic Integrated Procurement System (STRIPES) system following the removal of his warrant authority). Therefore, we have not addressed these issues in our decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152584 2 0120152584