U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emery S.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120180727 Hearing No. 490-2009-00006X Agency No. 2007-21241-FA-03 DECISION On December 15, 2007, 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 November 20, 2017, final order 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 following reasons, the Commission MODIFIES the Agency's final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) properly applied a mixed-motive analysis after determining that Complainant had established that he was subjected to discrimination based on reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist, AT-2152-JH, at the Agency's Air Traffic Control Tower (ATCT) in Memphis, Tennessee. Complainant stated that, in 2004, he wrote a letter to his congressman to bring attention to the Memphis Air Traffic Manager's (S1's) mishandling of the transfer of an Air Traffic Control Specialist who had recently lost a son in Iraq, as well as to raise allegations that minorities and women were being mistreated at the Memphis ATCT. According to Complainant, S1 started verbally harassing him shortly after the congressman intervened. Complainant noted that he had had a good relationship with S1 prior to 2004, but that their relationship changed after he contacted his congressman to raise his concerns. In February 2005, S1 and Complainant were involved in an incident. Complainant alleged that S1 assaulted him and, on March 28, 2005, Complainant filed an EEO complaint alleging that he was subjected to discrimination based on reprisal when S1 struck him sharply on the left arm. The Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Commission affirmed the Agency's final decision dismissing the complaint. EEOC Appeal No. 0120054443 (Apr. 12, 2006), request for recon. den., EEOC Request No. 0520060727 (June 7, 2006). Subsequently, the Agency determined, following an investigation, that the subject incident of Complainant's EEO complaint had not occurred as alleged and, in December 2005, suspended Complainant for 30 days on a charge of making false statements. On July 16, 2006, an arbitrator upheld the suspension. On or about February 13, 2007, an Air Traffic Control Specialist (C1) lost separation between two planes coming in for landing while they were his responsibility. According to Complainant, when the planes subsequently became his responsibility, he told a manager (S2) that proper spacing could not be maintained and that he needed to send one of the planes back up into the air for a slightly later landing. Complainant alleged that S2 instructed him to let the plane land, in violation of Agency policy. Complainant went home, but he reported the situation to his first-line supervisor (S3) the next workday. While Complainant was home sleeping, the Operations Manager (S4) called him and told him to come in and make a statement. Complainant averred that S4 told him that there had been three errors on February 13, 2007, that Complainant was responsible for all of them, and that disciplinary action would be forthcoming because of Complainant's failure to report the errors. C1, who had not participated in any protected EEO activity as of February 13, 2007, was not assigned any operational errors for his role in the events of that day. On February 26, 2007, S3 issued Complainant a memorandum stating that Complainant was being decertified due to the operational errors and would need to complete remedial training to get recertified. According to Complainant, the recertification plan was cancelled shortly after the recertification skill check, and he was placed on a 90-day Opportunity to Demonstrate Acceptable Performance (ODAP) plan. Complainant stated that, under the ODAP, he was required to become certified on every job in the ATCT except flight data clearance delivery. Complainant failed to recertify on the final position, which Complainant averred is the most difficult position at the Memphis ATCT. According to Complainant, he had complained twice to S3 that he was not receiving enough training on the final position. On July 16, 2007, S1 issued Complainant a memorandum offering him a voluntary transfer to Providence, Rhode Island or Jacksonville, Florida. Complainant alleged that the transfer was not voluntary and that the salary would be lower in Providence and Jacksonville than it was in Memphis. According to Complainant, he would have been fired if he did not select one of the transfer options. Given these options, Complainant decided to transfer to Jacksonville. S1 testified at hearing that he does not like Complainant and that he does not think that Complainant is very truthful, but he also testified that personal feelings should not play a role in managerial decision-making. S1 stated that, as Air Traffic Manager, he would not normally have a role in investigating operational errors or decertifying a controller. S1 averred that a first-line supervisor would make decisions regarding decisions to decertify, recertify, or use an ODAP. Complainant's 2007 union representative (U1) stated that S1 was a very hands-on manager who definitely played a role in the decisions to decertify Complainant, terminate his recertification, and terminate his ODAP. Testimony from various other Air Traffic Control Specialists and managers corroborated U1's testimony that S1 was very hands-on and even a micromanager. Procedural History On June 17, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, after the events that transpired on or about February 13, 2007, he was assigned an operational error, he was decertified, he was not recertified, he was assigned an ODAP, and he was demoted to a lower-level facility. 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 AJ. Complainant timely requested a hearing. Prior to the hearing, the parties stipulated to five facts: 1. Complainant had no documented performance issues or reprimands related to performance prior to the events in question in February 2007; 2. Memphis ATCT management had knowledge of Complainant's prior protected EEO activity prior to the events in question in February 2007; 3. C1 had never filed an EEO complaint prior to the events in question in February 2007; 4. In December 2005, Complainant received a 30-day suspension for making a false signed statement to an Agency supervisor and a false signed and sworn statement to an Agency investigator regarding allegations that S1 assaulted him; and 5. On July 16, 2006, Complainant's 30-day suspension was affirmed in an arbitration between the Agency and Complainant's union. The AJ held a hearing on April 7-10, 2014, and issued a decision on September 28, 2017. The AJ found some of Complainant's testimony regarding his relationship with S1 to be naïve and self-serving in light of documentary evidence. The AJ found that S1 was not credible when he testified that there was no personal motivation or discriminatory motive behind his actions. In his decision, the AJ found that Complainant's quick decertification, his placement on an ODAP, the failed ODAP, and the "voluntary" transfer followed his protected EEO activity within such a period of time that a reprisal motive was inferred. The AJ concluded that the severity of the disciplinary options chosen by the Agency and the fact that C1 was not disciplined for his involvement in the same incident as Complainant were further evidence of reprisal. Accordingly, he found that the Agency retaliated against Complainant for protected EEO activity. However, the AJ found that the case was a mixed-motive case, which precluded awarding personal relief such as compensatory damages. Specifically, the AJ cited "[S1]'s personal dislike for [Complainant]" as the alternate motive. AJ Decision at 39. As relief, the AJ ordered the Agency to post a notice and pay Complainant reasonable attorney's fees and costs. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in applying a mixed-motive analysis. Complainant argues that he is entitled to full make whole relief, including back pay, lost benefits, and compensatory damages. In response to Complainant's appeal, the Agency contends that the AJ properly applied a mixed-motive analysis. In the alternative, the Agency contends that the AJ erred in finding discrimination because there was insufficient evidence to show a nexus between the personnel actions at issue and Complainant's prior protected activity.2 The Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). Substantial evidence in the record supports the AJ's finding that S1 was motivated by reprisal when Complainant was assigned operational errors, decertified, denied the opportunity to recertify, placed on an ODAP, and involuntarily transferred to a lower-paying position in Jacksonville, Florida. Because the AJ applied a mixed-motive analysis and found that S1 was also motivated by a non-discriminatory motive, his intense personal dislike of Complainant, we will analyze this finding. Mixed-motive cases are those where there is evidence that discrimination was one of multiple motivating factors for an employment action, i.e., in which the agency acted on the bases of both lawful and unlawful reasons. See EEOC Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, No. 915.002 (rev. Jan. 16, 2009). Once a complainant demonstrates that discrimination was a motivating factor in the agency's actions, 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. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989); Tellez v. Dep't of the Army, EEOC Request No. 05A41133 (Mar. 18, 2005). If the agency is able to make this demonstration, the complainant is not entitled to personal relief, i.e., damages, reinstatement, back pay, but may be entitled to declaratory relief, attorney's fees, or costs. See DeArmas v. Dep't of the Treasure, EEOC Appeal No. 0720060085 (July 26, 2007); Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). In the instant case, we find that substantial evidence in the record does not support the AJ's conclusion that there was evidence of multiple motivating factors for the employment actions. We make this finding because S1's intense personal dislike for Complainant was so intertwined with Complainant's prior protected EEO activity as to be indistinguishable. According to the record, S1 disliked Complainant in large part because Complainant had filed an EEO complaint alleging that S1 assaulted him. Further, S1's relationship with Complainant had deteriorated following Complainant's contact with is Congressman, which included raising concerns of employment discrimination. Because we find that S1's intense personal dislike for Complainant stemmed directly from Complainant's prior protected EEO activity, S1 disliking Complainant was not a motivating reason that was separate from S1's retaliatory motive. Therefore, his intense personal dislike for Complainant was not a lawful reason for taking the employment actions against Complainant, and mixed-motive analysis does not apply. Accordingly, the burden does not shift to the Agency to prove by clear and convincing evidence that it would have taken the same actions even absent discrimination. Therefore, Complainant is entitled to personal relief, including reinstatement, compensatory damages, and back pay. We remand this matter to the Hearings Unit for a determination on Complainant's entitlement to compensatory damages and a determination as to whether Complainant is entitled to additional attorney's fees.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and REMAND this matter for further remedial action in accordance with this decision and the ORDER below. ORDER To the extent that it has not already done so, the Agency is ORDERED to take the following actions: 1. The Agency shall submit to the Hearings Unit of the EEOC's Memphis District Office a copy of this decision and a request for a determination on Complainant's entitlement to compensatory damages and additional attorney's fees within thirty (30) calendar days of the date this decision is issued. The Agency shall also submit a copy of the complaint file to the EEOC Hearings Unit within thirty (30) calendar days of the date this decision is issued. Thereafter, the Administrative Judge shall determine whether Complainant is entitled to compensatory damages, both pecuniary and nonpecuniary, and/or additional attorney's fees, consistent with this decision. The AJ shall issue a decision on remedies in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall offer Complainant reinstatement to his position as an Air Traffic Control Specialist, AT-2152-JH, in Memphis, Tennessee, or a substantially equivalent position, retroactive to the date of Complainant's transfer to Jacksonville, Florida. The offer shall be made in writing and include a written position description. Complainant shall have fifteen (15) calendar days from receipt of the offer to accept or decline the offer. Failure to accept the offer within fifteen (15) calendar days will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a response within the time limit. 3. Within sixty (60) calendar days of the date this decision is issued, the Agency shall calculate the amount of back pay, with interest, and other benefits due Complainant from the date of his transfer to the date of his reinstatement or the date of declination of the reinstatement offer pursuant to 29 C.F.R. § 161.501. Within sixty (60) days of determining the amount of back pay and other benefits due Complainant, the Agency shall pay that amount to Complainant. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may file a petition for enforcement or clarification regarding the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 4. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to the responsible management officials, including S1, S3, and S4, with a special emphasis on reprisal. 5. Within sixty (60) calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the responsible management officials, including S1, S3, and S4. The Commission does not consider training to be a 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. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement 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 (G0617) The Agency is ordered to post at its Memphis, Tennessee Air Traffic Control Tower 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)), 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 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 (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 September 27, 2018 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 Agency's final order fully implemented the AJ's decision finding discrimination; the Agency did not file an appeal. Therefore, the Agency has no standing now to appeal this finding by the AJ. 29 C.F.R. § 1614.110(a). 3 Although Complainant does not specifically raise the issue of attorney's fees and costs on appeal, we remand this matter to the Hearings Unit, as our determination that Complainant is entitled to personal damages may alter the amount of attorney's fees and costs awarded by the AJ for work performed through the hearing stage. On remand, the AJ may also determine the amount of attorney's fees and costs due Complainant for work performed subsequent to the initial attorney's fees determination, such as work on this appeal and work on the compensatory damages matter. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180727 10 0120180727