U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jazmine F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency. Appeal No. 0120162132 Hearing No. 570-2015-01003X Agency No. 2012FMD030 DECISION On June 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a). On July 13, 2016, the Agency issued a final decision (FAD) concerning Complainant's 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.2 For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED Whether the FAD properly found that Complainant failed to establish she was discriminated against based on reprisal (prior EEO activity) when on April 27, 2012, the Office Director advised her temporary Detail Supervisor that Complainant had previously filed an EEO complaint. BACKGROUND Complainant was employed as a Program Analyst, GS-0343-14 in the Agency's Program Budget Division, Financial Management Directorate (FMD) facility in Washington, DC. She began working for the Agency in February 2009. As indicated in the FAD, since January 24, 2011, and at the time of events giving rise to the underlying complaint, Complainant was working in a detail position as a Senior Staff Accountant, GS-0510-15, in the Agency's Office of the Under Secretary of Defense (OUSD). While not at issue in the instant appeal, Complainant was removed from federal service on January 17, 2013, due to lack of candor. The FAD clearly articulates facts relating to Complainant's employment, including her a clear description of her supervisory chain while on detail as a Senior Staff Accountant. This decision incorporates those facts by reference and will not reiterate them. The record reflects that on or around April 27, 2012, during the EEO counseling of a previous complaint (Agency No. 2013-FMD-038), the Director of FMD (the Director) contacted Complainant's detail supervisor (S2), and informed her that Complainant was engaged in settlement discussions for an EEO complaint. Complainant contends that the Director told S2 about her prior EEO activity in order to interfere with her prospective employment opportunities, and that S2 did not have a need to know her EEO history. The record reflects that the Director was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer to resolve the complaint. The Director states that a potential settlement option was a permanent reassignment to OUSD, and that she needed to determine if that office would be receptive to the reassignment. The Director stated that she contacted S2 and inquired about Complainant's job performance on the detail and posed the question regarding the reassignment. While S2 seemed pleased with Complainant's performance, she did not have any vacant billets/positions. The Director explained the circumstances, and asked if OUSD would be willing to have Complainant continue to be detailed for a two-year period, or until a new position became available. S2 testified that at no time was she provided specific information about the details of Complainant's EEO complaint. On July 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. The complaint was remanded to the Agency for the issuance of a final decision. 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 her to discrimination as alleged. Specifically, the Agency determined that Complainant was unable to establish a nexus between the prior protected activity and any adverse employment action. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reasserts the arguments from her underlying complaint, and requests that the Commission reverse the Agency's FAD and find that she was subjected to unlawful 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 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"). ANALYSIS AND FINDINGS In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Upon review, we find that Complainant has established a prima facie case of reprisal. The record indicates that Complainant had engaged in prior EEO activity regarding Agency No. 2013-FMD-038; and there is no dispute that the Director was aware of Complainant's prior EEO activity as she was the settlement authority for Complainant's EEO complaint and tried to develop an EEO settlement offer. We also find that Complainant was subjected to adverse treatment and that there is a nexus between the protected activity and the adverse treatment at issue here. The conversation between the Director and S2 occurred only because Complainant had engaged in prior protected EEO activity. In its enforcement guidance on retaliation, the Commission states: The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the "participation clause," provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed. The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct. Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees' participation in a complaint, investigation, or adjudication process. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004 (Aug. 25, 2016) (Retaliation Guidance). We also find that the Agency articulated a legitimate, non-discriminatory reason for the Director's actions. The parties concur that the Director spoke with S2 about Complainant's prior EEO activity. The parties disagree on the reasons for this communication. The Director contends that she discussed Complainant's prior EEO activity with S2 only to reach a settlement by finding Complainant a permanent assignment in OUSD. Although this is a legitimate, nondiscriminatory reason, we find that Complainant established that the Director's explanation was a pretext for discrimination. The record reflects that the Director inquired first about Complainant's performance, and subsequently inquired about whether there was a permanent assignment available for her. When S2 advised that there were not any available vacant positions, the Director then informed her that she was seeking the reassignment as a potential EEO settlement offer. Given that the Director was told that there was no vacant position available for Complainant, we find no justification for disclosing Complainant's prior EEO activity to S2. In other words, we find that no further conversation on this matter was necessary. We have held that the actions of a supervisor are discriminatory based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.; Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). On these facts, we find that the Director's decision to mention Complainant's prior EEO complaint to S2 was retaliatory because it would have deterred a reasonable person from engaging in protected activity. Nothing in the record supports the Director's position that it was necessary to mention Complainant's prior EEO complaint to S2 when inquiring about a vacant position. As noted above, the conversation between the Director and S2 occurred only because Complainant engaged in protected EEO activity, and we find that this conversation by design would have the effect of intimidating and/or interfering with Complainant's EEO activity. We further find that the Director's decision to advise S2 that Complainant was actively involved in settling an EEO complaint would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and therefore was clearly in violation of the anti-retaliation provisions of our regulations. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, finding that Complainant was not discriminated against based on reprisal, is REVERSED. The complaint is REMANDED for proceedings consistent with this decision and the ORDER below. ORDER The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued: 1. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her 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. The Agency shall provide at least eight hours of in-person EEO training to the Director regarding her responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees. 3. The Agency shall consider taking appropriate disciplinary action against the Director. 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). POSTING ORDER (G0617) The Agency is ordered to post at its Financial Management Directorate (FMD) facility in Washington, D.C. 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 (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 __6/22/18________________ 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 The Commission notes that Complainant filed her appeal prior to the Agency issuing a FAD in the instant matter. On March 25, 2016, the complaint was remanded to the Agency for issuance of a FAD, after Complainant withdrew her hearing request. The Agency did not issue the FAD until July 13, 2016, over three months after the complaint had been remanded for a FAD. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162132 8 0120162132