U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colleen M.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 0120161381 Hearing No. 470-2015-00040X Agency No. USM201400154 DECISION On April 6, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's March 2, 2016, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Agency's FAD which found that Complainant was not subjected to a hostile work environment based on sex and reprisal is AFFIRMED in part and REVERSED in part. The complaint is REMANDED for compliance. ISSUES PRESENTED Was the Agency correct in concluding that Complainant did not prove by a preponderance of the evidence that she was subjected to a hostile work environment based on sex and reprisal? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deputy United States Marshall at the U.S. Marshall Service, Southern District of Ohio in Cincinnati, Ohio. Complainant became involved in a relationship with her supervisor and he was subsequently reassigned to a different position within the Agency. ROI, p. 4. They later became engaged. Id. Complainant remained in her position, but was assigned a new supervisor, Supervisory Deputy U.S. Marshall (S1). Complainant alleges that upon becoming her supervisor, S1 made several comments to her regarding her relationship with her fiancé. For example, in November 2012, Complainant stated that S1 told her that she should have been punished for her relationship with S1. ROI, p. 4. In subsequent affidavits, S1 appeared to be disgruntled that he was reassigned to the position he was in. ROI, p. 203. In December 2013, Complainant told her fiancé about an incident where an inmate had a knife. The information was relayed to another employee, E1, who reported it to upper management. ROI, p. 212. On December 13, 2013, S1 yelled at members of the office, and specifically yelled at Complainant that she should not "run [her] f***ing mouth to E1." ROI, p. 4. Complainant contacted upper management on December 17, 2013, including the Chief Deputy (S2), the Assistant Chief Deputy (S3), and the Asset Forfeiture Financial Investigator who also served as Acting Assistant Chief (S4).2 Complainant reported the yelling incident and informed management that S1 was harassing her. ROI, p. 189-190. This resulted in the upper managers reporting the matter to Internal Affairs, and S1 was later issued a Letter of Caution or a Letter of Instruction. ROI, p. 171. Management also contacted the EEO office regarding the matter. Id. Complainant let the managers know that she was filing an EEO complaint against S1. ROI, p. 131. The managers informed Complainant that she should come directly to them if she had any issues with S1. ROI, p. 133. On January 30, 2014, S1 issued Complainant a Letter of Counseling for going outside the chain of command. ROI, p. 136. S1 stated that he found out on January 28, 2014, that Complainant had gone to upper management on issues without going through him. ROI, p. 136; January 30, 2014 Letter of Counseling, ROI, p. 260. The other managers testified that they told Complainant to come to them directly given the nature of her complaints against S1. ROI, p. 159. S2 stated in his affidavit that "we did give her permission if something else like this comes up and it's out of line, that she should come to me or [S3 or S4]." Id. Finally, S1 issued Complainant a slightly lower interim performance evaluation than what she received the previous year, and from what she received pursuant to her mid-year review. S1 stated in the mid- year evaluation that Complainant needed to better follow the chain of command. ROI, p. 262. On January 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. Complainant was verbally harassed by her supervisor from December 13, 2013, to February 10, 2014; 2. On January 30, 2014, Complainant was issued a Letter of Counseling; 3. On March 3, 2014, her former supervisor issued her an interim performance evaluation in which her rating was lowered from her mid-year review conducted on January 28, 2014. Complainant said the interim rating would be used to determine her final 2014 performance rating. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to the alleged hostile work environment based on sex and reprisal discrimination. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant contends that S1 directly targeted her when he shouted across the room not to tell another employee anything, and that he knew it was Complainant who was "running her f***ing mouth." Complainant's Brief, p. 3. Complainant also contends that S1 stated that he was angry because her "affair" with her former supervisor and later fiancé, made S1 change positions and become supervisor in the current division. II. Agency's Contentions On Appeal The Agency contends that the S1's outburst on December 13, 2013 was a result of Complainant mentioning an incident to someone else rather than going through her chain of command. The Agency further contends that Complainant's rating was not based on her EEO activity or sex. The Agency explained that she received a slightly lower rating now that she was rated on six elements, when she was previously rated on five elements. The Agency contends that Complainant still received an overall rating of "excellent" and the slight drop in score did not reduce her final rating for which she received an "excellent." ANALYSIS AND FINDINGS The issue is whether Complainant proved by a preponderance of the evidence that she was subjected to a hostile work environment based on reprisal.3 To establish a claim of hostile work environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she 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 the 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6, 9 (Mar. 8, 1994). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 ((2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. Complainant explained that she endured a series of comments from S1 regarding a relationship she had with a previous supervisor. While there is insufficient information to make conclusions regarding the extent of those comments and whether they occurred, Complainant made a report of harassment to her managers on December 17, 2013, and also contacted EEO on December 16, 2013. This was prompted by the allegation of screaming that Complainant allegedly endured on December 13, 2013 when S1 yelled at others in the office and specifically mentioned Complainant.4 Therefore, Complainant established that she engaged in protected activity. Subsequently, management informed S1 of the complaint and the matter was reported to Internal Affairs. However, the record reveals that on January 30, 2014, S1 issued Complainant a letter of counseling for going directly to upper management. Managers testified that they were not aware of the letter S1 issued, and that it should not have occurred because Complainant was told by managers to report to them directly regarding any harassment issues with S1. S1 did not provide any additional information regarding what Complainant went outside the chain of command for other than her report of harassment, and the letter of counseling does not provide further information.5 Therefore, preponderant evidence establishes Complainant was penalized for reporting her harassment to individuals designated to receive such complaints. Because of her report of harassment to senior managers, S1 also reduced Complainant's performance evaluation slightly, and included in commentary that she needed to follow the chain of command. Therefore, Complainant established that she was subjected to adverse actions based upon her protected activity. Next, S1's conduct was sufficient to deter a reasonable employee from engaging in protected activity. See, e.g., Swink v. U.S. Postal Serv., EEOC Appeal No. 0120063387 (Oct. 18, 2006) (finding that a letter of warning is reasonably likely to deter protected activity). A reasonable employee in Complainant's circumstances would be deterred from engaging in protected activity if a letter of counseling and lowered performance evaluation resulted from a report of harassment. Finally, the Agency is liable in these circumstances because S1 was a supervisor. Therefore, Complainant proved by a preponderance of the evidence that she was subjected to a hostile work environment based on reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD which found that Complainant was not subjected to a hostile work environment based on sex and reprisal is AFFIRMED in part, and REVERSED in part. Complainant demonstrated that she was subjected to a hostile work environment based on reprisal. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions, to the extent that it has not already done so: 1. Rescind the January 30, 2014 Letter of Counseling from Complainant's official personnel record, and expunge it from other personnel records; 2. Conduct a supplemental investigation into compensatory damages for harm caused by the reprisal discrimination within 90 (ninety) calendar days of the date this decision is issued. 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. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to the Complainant for the undisputed amount within 30 (thirty) calendar days of the date the Agency determines the amount it believes to be due, and issue a final agency decision on the issue of compensatory damages; 3. Modify Complainant's midyear/interim evaluation to reflect what her midyear/interim scoring was the previous year prior to her EEO activity; 4. Provide a minimum of 8 hours of in-person or interactive training to the responsible management official, S1, on an employer's obligation not to engage in reprisal discrimination; 5. Consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s); 6. Post at the U.S. Marshall Service, Southern District of Ohio in Cincinnati, Ohio, copies of the notice discussed below; The Agency shall provide a report of its compliance with this Order to the Compliance Officer referenced below. POSTING ORDER (G0617) The Agency is ordered to post at the Democracy and Governance Office, Rule of Law Division in Washington, DC, 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (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 6-26-18 __________________ 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 Some of these individuals were in Acting roles at the time, but their titles are captured as they appeared at the time of the affidavits. 3 Complainant did not prove a hostile work environment based on sex, therefore, it will not be analyzed. 4 S1's comment was: "If anyone tells [Employee A] anything, I swear, that goes for anyone, especially you [Complainant]. I know you're the one running your f***ing mouth to E1 and E2. If you don't want to be part of this office, then leave. Go to a different office. It has to stop. You got me." ROI, p. 4. 5 The letter of counseling was not for going outside the chain of command regarding the incident with the knife. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-1381 9 0120161381