0120142315
01-24-2017
Charlie K.,1 Complainant, v. Jenny R. Yang, Chair, Equal Employment Opportunity Commission,2 Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Charlie K.,1
Complainant,
v.
Jenny R. Yang,
Chair,
Equal Employment Opportunity Commission,2
Agency.
Appeal No. 0120142315
Agency Nos. 2010-00003 and 2011-33815
DECISION
On June 4, 2014, Complainant filed an appeal from the Agency's April 17, 2014, final decision, which he received on May 5, 2014, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
The issues on appeal are (1) whether the Agency processed Complainant's complaint improperly; (2) whether the Agency discriminated against Complainant on the bases of national origin, color, and reprisal for protected EEO activity when it did not select him for training; and (3) whether the Agency discriminated against Complainant on the bases of race, national origin, color, disability, and reprisal for protected EEO activity when it allegedly subjected him to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Investigator at the Agency's Denver Field Office (DFO) in Denver, Colorado. In a formal complaint (2010-00003) filed on November 27, 2009, and subsequently amended, Complainant alleged that the Agency discriminated against him on the bases of national origin (Hispanic/Mexican), color (brown), and in reprisal for prior EEO activity.3 In the Final Agency Decision (FAD), the Agency defined the issues as follows:
1. On August 26, 2009, Complainant learned that he was not selected for the "DNA of Leadership" training; and
2. Complainant was subjected to a hostile work environment from 2000 to the present when white employees allegedly were given preferential treatment with regard to office assignments, work assignments, advancement opportunities, and leadership opportunities and when, after filing the instant complaint, he was subjected to numerous instances of retaliatory harassment, including:
a. he was retaliated against by a Supervisory Investigator (S1)4 on October 22, 2009;
b. his complaints of retaliation, dated November 3, 2009, and December 9, 2009, were allegedly ignored by management in the DFO, even though the complaints of a white female in the DFO purportedly were investigated;
c. he learned that the DFO Director had allegedly told another employee that he is conniving;
d. he was forced to defend himself against claims of sexual harassment;
e. on January 12, 2010, he was subjected to a hostile work environment when, as he was helping an Investigator, another Investigator intentionally went out of her way to "bump-shove" him in an effort to create conflict;
f. DFO management ignored his complaint of January 2010 over the "bump-shove" incident in retaliation for his opposing discrimination in the workplace; and
g. DFO management interfered with the internal investigation into his January 2010 "bump-shove" complaint.
On July 5, 2011, Complainant filed a second formal complaint (2011-33185) alleging that the Agency discriminated against him on the bases of race (Hispanic/Latino5), national origin (Mexican), color (brown), disability, and in reprisal for prior EEO activity when he was subjected to a hostile work environment. In the FAD, the Agency identified the following incidents:
a. his laptop computer was searched;
b. he was reprimanded for sending e-mails to coworkers ("March 2010 Intake Issue");
c. he was disciplined for putting an accent mark on his name plate;
d. the Agency refused to provide him with a copy of the report concerning the internal investigation into his January 2010 "bump-shove" complaint;
e. he received negative/inappropriate comments during a performance evaluation;
f. his request for reconsideration of his FY 2010 performance rating was denied;
g. his personal property was stolen;
h. in February 2011, DFO management directed Complainant to move an interview with a charging party from Complainant's office to another office outside the secured space; and
i. the Agency failed to investigate his complaints in a timely manner.
Procedural Background
Complainant sent a letter to the Agency's Office of Equal Opportunity (OEO) regarding Complaint Number 2010-00003 on October 8, 2009, and filed a formal EEO complaint on November 27, 2009. The Agency appointed a contract investigator to conduct an investigation and issued a Report of Investigation on September 24, 2010. Complainant timely requested a hearing before an Administrative Judge (AJ).
In a March 17, 2011, e-mail to the then-OEO Director, Complainant sought to file a new complaint alleging that the Agency had subjected him to a pattern of discrimination. The OEO Director replied on the same date and stated that he had assigned the matter to an EEO Counselor, who would contact Complainant "in the near future." In a May 10, 2011, e-mail to the Chair of the Agency, Complainant stated that no one from OEO had followed up on his request for counseling. The EEO Counselor contacted Complainant on May 11 and interviewed him on May 16, 2011. Complainant filed a formal complaint (Complaint Number 2011-33815) on July 5, 2011. He alleged, among other things, that the OEO Director delayed the processing of his complaint in an attempt to dissuade him from filing the complaint.
The OEO Director issued an October 20, 2011, Notice of Acceptance defining the accepted issue as "Whether Complainant was subjected to discrimination on the bases of Race (Hispanic/Latino), Color (Brown), National Origin (Mexican), Disability, and in Reprisal for prior EEO activity when he was subjected to harassment, resulting in a hostile work environment." He stated that Complainant's allegation that the Agency denied Complainant's Weingarten rights with respect to a February 2010 computer search was not actionable in the EEO forum. With respect to Complainant's allegation that the Agency improperly delayed the processing of his complaint, the OEO Director stated that "the delay was related to an inadvertent error on the part of the EEO Counselor initially assigned to this matter." The OEO Director stated that the complaint was assigned to a named individual (EEO Investigator 2) for investigation and that "[o]thers in this office may assist with the investigation."
On October 24, 2011, the OEO Director notified Complainant's representative that he would "be assisting with the investigation" of Complainant's complaint and sought to arrange a time to interview Complainant. In response, Complainant argued that it would be a conflict of interest for the OEO Director to handle the investigation and conduct interviews because the OEO Director was named in the complaint. The OEO Director replied that the Agency had not accepted Complainant's improper-processing claim for investigation and that Complainant could raise the issue at a hearing or on appeal if he remained dissatisfied. He stated that he would assist with the investigation and conduct interviews.
The OEO Director, who went to the DFO to interview witnesses, interviewed Complainant on November 3, 2011. Complainant has alleged that the OEO Director "conducted Complainant's interview in a confrontational, brow-beating, intimidating, and mean-mugging fashion."
On January 9, 2012, noting that more than 180 days had passed since the filing of his complaint, Complainant requested a hearing before an Administrative Judge. The AJ subsequently granted Complainant's request to consolidate Complaint Numbers 2010-00003 and 2011-33815.
On May 24, 2012, the OEO Director provided Complainant with a copy of the Report of Investigation (ROI) for Complaint Number 2011-33815. The ROI includes approximately 400 pages of documents that Complainant provided to EEO Investigator 2 and the OEO Director. The ROI's Table of Contents lists documents, including witness affidavits, and refers to the "Affidavits of" named individuals (CW3, CW7, the DFO Director, and S4). Those witnesses signed the documents in March and April 2012. The Table of Contents does not have the word "Affidavit" next to the names of other individuals (S2 and CW6), who did not sign the documents in the ROI. Complainant has argued that the omission of the word "Affidavit" next to the names of S2 and CW6 demonstrates an implicit bias against non-whites.
In an August 1, 2012, Disagreement with Claims Dismissed by the Agency, Complainant asked the AJ assigned to his complaints to review the Agency's decision to dismiss certain claims from Complaint Number 2011-33815. He argued that the Agency improperly narrowed the scope of its investigation of the complaint to only harassment and improperly dismissed his allegation regarding the processing of the complaint. Complainant also argued that the investigation of the complaint was biased. He asserted, among other things, that the Agency took too long to complete the investigation; that the ROI omitted relevant statements and notes; that the affidavits in the ROI were incomplete and inaccurate; and that the OEO Director inappropriately conducted the investigation, interviewed Complainant "in a brow-beating and intimidating fashion," called Complainant a "pot-stirrer," and did not interview relevant witnesses.
The AJ issued a November 19, 2012, order concluding that the Agency did not narrow the scope of the investigation. She also concluded that the Agency properly dismissed Complainant's claim that the Agency improperly delayed the processing of his complaint. With respect to Complainant's claims regarding complaint-processing and the allegedly biased investigation, the AJ ordered the Agency to provide a report of any actions that it took to resolve Complainant's concerns or an explanation of its reasons for not taking actions.
The OEO Director submitted a December 19, 2012, Memorandum to the File addressing the claims. He stated that he met with the EEO Counselor immediately upon learning of the delayed response to Complainant's March 17, 2011, request for counseling. According to the OEO Director, the EEO Counselor reviewed her records and determined that the OEO Director's e-mail assigning the matter to her "somehow fell through the cracks." He directed the EEO Counselor to apologize to Complainant and to explain what had happened. The OEO Director determined that the delay was inadvertent and was not the result of bias against Latino employees.
In addition, the OEO Director stated that he informed Complainant in October 2011 that the Agency would not use a contract investigator to investigate Complainant's complaint. He asserted that he "could not find a suitable contractor whose prices did not exceed the maximum threshold for paying with a credit card." The OEO Director also asserted that he told Complainant the he "would be the primary person investigating this Complaint and that there were a couple of reasons for this, including the fact that OEO only had two Investigators at the time." According to the OEO Director, Complainant previously had expressed concern that one of the Investigators was biased, and the other Investigator had workload constraints. Noting that Complainant continued to submit documents to EEO Investigator 2, the OEO Director stated that office needs, rather than bias against Complainant, determined EEO Investigator 2's role in the investigation.
The OEO Director denied that he called Complainant a "pot-stirrer." Instead, he stated that he asked if Complainant "was perceived to be a pot-stirrer." He also denied that he interviewed Complainant in a "brow-beating and intimidating" fashion. He asserted that Complainant became irritated when he pointed out inconsistencies in Complainant's statements. According to the OEO Director, an "investigator must be unbiased, but must also ask difficult questions and not automatically accept responses of witnesses without further inquiry."
Finally, the OEO Director did not believe that he omitted relevant evidence from the record. He stated that he used his best efforts to record witness interviews accurately, noted that Complainant had opportunities to supplement the record, and claimed that the processing of the complaint was delayed because of "inadvertent error" and because Complainant "continued to submit documents and evidence up until the investigation was closed."
On January 16, 2013, Complainant withdrew his request for a hearing and asked for a Final Agency Decision (FAD) on his complaints. On April 9, 2013, Complainant filed a formal complaint (Complaint Number 2013-0020) alleging that the Agency discriminated against him on the bases of race (Latino), national origin (Mexican), sex (male), color (brown), disability (physical), sexual orientation ("traditional non-LGBT"), and reprisal for prior protected EEO activity. In an October 22, 2013, final decision, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1), on the ground that it raised the same claims as those in Complaint Numbers 2010-00003 and 2011-33815, and pursuant to 29 C.F.R. � 1614.107(a)(8), on the ground that it alleged dissatisfaction with the processing of a previously filed complaint.6
Factual Background
The record reflects that Complainant began working at the Agency's Denver Field Office (DFO) on June 21, 1999. He requested and received a reassignment to the Agency's Honolulu, Hawaii, Local Office, effective August 27, 2000. On January 28, 2002, Complainant provided a declaration in connection with the investigation of an EEO complaint filed by an employee in the DFO. Complainant returned to the DFO effective October 1, 2006.
In a February 27, 2008, e-mail to his first-level supervisor (S2) and an Enforcement Supervisor and an April 1, 2008, memorandum to S2, Complainant expressed concern about two attorneys who represented two Charging Parties. He has argued that these complaints constituted prior EEO activity.
On October 24, 2008, Complainant forwarded an e-mail from a former Agency employee to an individual in the Agency's OEO. Complainant informed the DFO Director that he had contacted OEO on behalf of the former employee.
Complaint Number 2010-00003
Claim 1: Non-Selection for DNA of Leadership Training
In August 2009, managers in the DFO nominated Complainant and three Caucasian Investigators (CW1, CW2, and CW3) for DNA of Leadership training. The District Director,7 who could choose only two employees for the training, selected an African-American female from the Phoenix District Office and CW1 for the training. Because CW1 could not attend the training, the District Director subsequently chose CW2.
In his affidavit, Complainant asserted that, during an August 28, 2009, telephone conversation, the District Director told him that one of the reasons he was not selected for the DNA of Leadership training was feedback from the Legal Unit. He also asserted that the District Director told him that the selection was "based on feedback from peers, skill set, overall performance, [Complainant's] performance records, [Complainant's] performance ratings, and the feedback [the District Director received] from Legal." Complainant alleged that the District Director did not select him for the training because he complained about the relationship between white DFO attorneys and certain outside attorneys who represented charging parties. He also alleged that managers had pre-selected CW1 for the training, that "they had already made a determination that they were going to send somebody white," and that "white employees receive preferential treatment over non-white employees." In addition, Complainant argued that he had more seniority than CW2 and out-produced and out-performed CW2. Further, Complainant stated that the Agency subsequently held another session of the training and that a white attorney from the office was selected for the training. He asserted that the attorney was a supervisor and therefore did not meet the eligibility criteria for the training.
The District Director stated in his affidavit that he chose CW2 based on what CW2 wrote on his nomination form. He did not choose Complainant because, although Complainant stated on the nomination form why he was qualified for the training, he "listed everything in another office but not what he had accomplished in this assignment." According to the District Director "that was the only difference between" Complainant and CW2; there were "[n]o major differences between the two of them on performance." The District Director also "looked at what their supervisors said they've done and then also the Field Director." He stated that CW2 "talked about all the leadership things he's done in the Denver Office." Complainant, on the other hand, stated his contributions "under his last office before Denver." The District Director was "looking at the things you've done in the current office with me, in their current assignments." The District Director stated that, at the time of the selection, he was not aware of Complainant's prior EEO activity.
S2 stated in her affidavit that, before the DFO Director informed her that she could nominate someone for the training, an Enforcement Manager (S3) told her that the DFO Director had instructed S3 to nominate CW2. S2 also stated that the District Director told her that Complainant was not selected for the training "because he needed to work on his interpersonal skills."
Claim 2: Harassment
Complainant has alleged that managers in the DFO preferred white employees over non-white employees regarding office and work assignments and advancement and leadership opportunities. Complainant also has alleged that managers gave preferential treatment to CW1 and CW2.
The District Director believed that office assignments were made according to work group, grade, and seniority. The DFO Director stated that Enforcement Supervisors determined work assignments and that seniority governed office assignments. S1 denied that white employees received preferential assignments.
Allegation a
In an October 8, 2009, letter to the Agency's OEO, Complainant alleged that the Agency discriminated against him on the bases of national origin, color, and reprisal when it did not select him for the DNA of Leadership training. Complainant has alleged that S1 went to his office on October 22, 2009, referred to the previous day's management meeting, and stated, "We spent half the meeting talking about you and your complaint." Complainant sent an October 22, 2009, e-mail to S1 stating that S1's comment made him uncomfortable and asking that any information shared with management about protected activity "stay with management." On November 3, 2009, Complainant forwarded the e-mail to S2, asserted that S1 was giving him "the cold shoulder," stated that he would like to resolve the matter, and asked if S2 had "any thoughts." S2 forwarded the e-mail to Complainant's second-level supervisor, an Enforcement Manager (S4), on November 3, and S4 forwarded the e-mail to the DFO Director on November 5, 2009. In a January 19, 2010, e-mail to S2, Complainant stated that he had not received any feedback from S2. Noting that the Agency was investigating the harassment complaint of another individual (CW4), Complainant asserted that "something about the process seems unfair."
S1 acknowledged in his affidavit that he "might have said" the comment that Complainant attributed to him. He stated that he was joking and that he meant the comment to be humorous. According to S1, "it certainly wasn't retaliatory and it certainly wasn't harassment. It wasn't true." S1 also stated that he and Complainant "kid each other [and] joke with each other." S4 stated that, "[o]nce [she] was put on notice" of the comment, she spoke with Complainant, interviewed S1, and gave S1 a verbal warning.
Allegations b-c
In a December 9, 2009, memorandum addressed to the DFO Director and routed through S2 and S4, Complainant asserted that another Investigator (CW5) told him that "someone in management stated that [he] should be assigned certain cases because [he is] 'conniving.'" In addition, asserting that CW5 told him that management had asked her about the complaint filed by CW4, Complainant described several conversations that he had had with CW4. S4 met with Complainant and his union representative on December 15, 2009, and January 21, 2010. Complainant has asserted that he told S4 that he was uncomfortable about the DFO Director's comment. He also has asserted that he asked S4 about his complaint regarding S1's comment, and S4 said that she would get back to him. When he asked about his complaint regarding the DFO Director's comment, S4 said that she did not know that Complainant had wanted her to look into it. Complainant has asserted that management investigated CW4's complaints but did not investigate his complaints.
In her affidavit, CW5 stated that the DFO Director was asking about who could serve a notice of discrimination "and she made the remark that someone conniving, she mentioned [Complainant], as someone who would be conniving." The DFO Director stated in her affidavit that she did "not recall ever having described the Complainant as conniving." She also stated that, to the best of her knowledge, Complainant's November 3 and December 9, 2009, complaints "were reviewed and addressed by" S4. S4 stated that she forwarded Complainant's December 9, 2009, memorandum to the person who was investigating CW4's complaint.
Allegations d - g
In Fall 2009, CW4 complained to her supervisors about Complainant. She alleged that Complainant said that she would pay for a comment that she made during a September 2009 union meeting, when she stated that "we have some lazy-ass employees working here," and that he sent her an unprofessional e-mail referring to her comment. CW4 also alleged, among other things, that Complainant called her a pejorative term for a woman who is lesbian, that someone posted derogatory comments about her on a public website, that someone used government equipment to access and print the derogatory comments, and that S2 did not take her complaints seriously. She suspected that Complainant or another Investigator (CW6) was responsible for posting and printing the derogatory comments. Further, CW4 alleged that Complainant retaliated against her by harassing her on November 19, 2009, when she was telecommuting, S2 was out of the office, and Complainant was Acting Supervisor. CW4 met with S2 on November 24, 2009, and sent an e-mail about the matter to S2, S4, and the District Director later that day. The District Director appointed a Supervisory Investigator from the District Office (IO1) to investigate CW4's allegations.
IO1 interviewed Complainant on January 5, 2010. Complainant denied making the comments that CW4 alleged he had made, and stated he was not in the office during the week that the derogatory comments were printed. He stated that he e-mailed and left a voice-mail message for CW4 when he was the Acting Supervisor because he did not know where CW4 was. Complainant acknowledged sending CW4 an e-mail referring to her "lazy-ass investigator theory."
On January 12, 2010, Complainant complained to S2 that CW4 "bump-shoved" him while he was talking with CW6. Also on January 12, 2010, CW4 told IO1 that Complainant had been standing at a printer in the middle of the hallway and would not let her pass. According to S2, she reported Complainant's "bump-shove" complaint to S4 on January 12, 2010. S4 forwarded the complaint to IO1 on January 29, 2010. The DFO Director stated in her affidavit that she "made the [District Director] aware of [Complainant's] complaint via e-mail on the same date that [she] received it."
On February 22, 2010, IO1 examined the computers of Complainant, CW4, CW5, and CW6. The examination did not reveal the identity of the individual who printed the derogatory comments about CW4.
In a February 24, 2010, e-mail to S2, Complainant asked whether anyone was looking into the "bump-shove" matter. In a February 25, 2010, e-mail to S2, S4, and the DFO Director, Complainant asserted that his January 5, 2010, interview constituted protected activity and alleged that CW4 had shoved him intentionally in retaliation for that activity. He also alleged that CW4 shoved CW6 on February 2, 2010. The DFO Director forwarded the e-mail to the District Director, who forwarded the e-mail to IO1 and asked if IO1 had investigated the matter.
IO1 reported his findings to the District Director on March 9, 2010, and to the Agency's Harassment Prevention Coordinator on March 16, 2010. He found that there was insufficient evidence to conclude that Complainant had made the comments that CW4 attributed to him and that the investigation did not reveal the identity of the person who had printed the derogatory information. IO1 noted that Complainant could not have printed the material because he was not in the office during the week of November 23, 2009. IO1 also found that there was no evidence that Complainant's attempts to contact CW4 when he was the Acting Supervisor were retaliatory. He concluded that the evidence established that Complainant sent CW4 an unprofessional e-mail referring to her comments during the union meeting and that S2 "took immediate corrective action" when she spoke to Complainant about it on September 24, 2009. Finally, noting that there were "conflicting versions of the [January 12, 2010] incident," IO1 did not reach a conclusion regarding which version was more credible.
The Harassment Prevention Coordinator replied on March 17, 2010, that she concurred with IO1's findings. By memorandum dated March 22, 2010, IO1 informed CW4 that he "conclude[d] that there was no violation of the Agency's anti-harassment policy with respect to [her] allegations and that no further investigation is necessary."
In the meantime, on February 27, 2010, the District Director appointed a Supervisory Administrative Judge (IO2) to investigate Complainant's and CW6's allegations that CW4 had shoved them. In a March 18, 2010, Investigative Summary, IO2 concluded that "more probably than not [CW4] made unwelcome physical contact with both" Complainant and CW6. In a March 23, 2010, e-mail to the District Director, the DFO Director noted that IO2's credibility analysis was "well developed and thought out" but questioned whether they should impose discipline on CW4 in a "he says/she says" situation. She suggested that the Harassment Prevention Coordinator review the report.
On April 6, 2010, the DFO Director sent an e-mail to IO2 and a copy of the e-mail to the District Director. She stated that the District Director and the Harassment Prevention Coordinator had reviewed IO2's investigative report, as they had IO1's report, "to ensure consistency in the investigative approach and evidentiary-based findings." According to the DFO Director, "[t]he consensus of the reviewers was that the investigative results did not support a finding of a violation because of the lack of any direct evidence in support of [Complainant's] complaint." She stated that IO2's credibility assessment was not "sufficiently probative to warrant a finding of a violation." The DFO Director attached a one-page sample format for investigative-findings and noted that IO2 would need to add case-specific information to the document. She asked him to forward the completed document to the District Director for review and stated that IO2 should issue the document after it was approved. IO2 replied that it would be "disingenuous" for him to issue a final decision that was contrary to his findings.
In an April 15, 2010, e-mail to the District and DFO Directors, the Harassment Prevention Coordinator expressed concern about finding a violation "without more concrete evidence that the bumping was intentional and not accidental and based on discriminatory animus or motive." By memorandum dated April 28, 2010, the District Director informed Complainant that he "conclude[d] that there was no violation of the Agency's anti-harassment policy with respect to [his] allegations and that no further investigation is necessary."
In his affidavit, IO2 stated that the DFO Director informed him that the District Director wanted him to issue a memorandum that was contrary to his findings. He refused to do so. IO2 also stated that he was not asked to change his report. In response to the EEO Investigator's (EEO Investigator 1's) question asking what his findings were, IO2 replied that he had "been directed to refer all inquiries regarding the report or information relating to the investigation to" the Harassment Prevention Coordinator.
The District Director stated in his affidavit that IO2's "findings were that in passing in the hallway, the employees came into contact with each other." In response to EEO Investigator 1's question about whether he asked IO2 to change his findings, the District Director replied, "I did not ask for any changes in [IO2's] report. It was taken as is." In response to EEO Investigator 1's question about the results of IO1's investigation into CW4's complaint, the District Director replied, "Incidents of that investigation can be requested via FOIA from HQs."
Subsequently, in declarations that the Agency submitted during the pre-hearing process, the District Director stated that the internal investigations into Complainant's and CW4's complaints "were emotionally charged, divisive, and extremely disruptive to the DFO." He denied that Complainant's prior EEO activity was a factor in the Agency's April 6, 2010, e-mail to IO2. Instead, according to the District Director, the e-mail was intended "(i) determine what, if any, direct evidence existed to show that the bumping was intentional and based on a discriminatory animus or motive; and (ii) to ensure that the same standard of proof that was applied to the evidence obtained in [IO1's] investigation was applied in [IO2's] investigation." The District Director also denied that Complainant's EEO activity was a factor in the issuance of the April 28, 2010, memorandum finding that there was insufficient evidence that CW4 had violated Agency policies.
Complaint Number 2011-33815
Allegation a
In his complaint, Complainant stated that IO1 "searched a few laptops" on February 22, 2010. He alleged that the Agency denied his request to have a union representative present during the examination of his computer, that he had difficulty using the computer after the examination, and that he "discovered a microphone recording software" on the computer.
S4 stated in her affidavit that IO1 searched several government-issued computers in connection with his investigation of CW4's complaint. She was not aware of anything being activated on Complainant's computer.
Allegation b
On March 29, 2010, Complainant sent an e-mail to CW2 and CW4 stating that staff had been looking for them because a "walk-in" had come to the office. He also stated that employees who are assigned intake or "OD" duties "evidently" are supposed to stay in the office until noon, that he had taken care of the "walk-in," and that he "had nothing to do with bringing the matter to management's attention."
Shortly thereafter, S4 sent Complainant an e-mail asking why he had sent his e-mail to CW2 and CW4. Complainant replied that he sent the e-mail to give CW2 and CW4 a "heads up" about the matter. S4 responded that she appreciated Complainant's willingness to help but that his e-mail to CW2 and CW4 was "inappropriate" because it was not his place to provide supervisory direction to his co-workers. Complainant spoke to the DFO Director about the matter, and she sent an e-mail to supervisors stating that Complainant had been well-intentioned and that his e-mail "was improperly characterized by management as 'inappropriate.'"
In her signed affidavit,8 S2 stated that she agreed with the DFO Director's conclusion that Complainant had not intended his e-mail to be a supervisory direction. She believed that S4's e-mail constituted a disciplinary action and that S4 should have discussed the matter with her. S4 stated that Complainant and CW4 "had several ongoing issues" and that they had asked that there be no communication between them. She believed that Complainant's e-mail was inappropriate in light of the "unproductive and contentious relationship between" Complainant and CW4, and she communicated this belief to Complainant in her e-mail.
Allegation c
In February or March 2010, Complainant placed an accent mark above a letter on his name plate. In a July 29, 2010, e-mail to S2, S4 stated that Complainant and CW6 had added accents to their name plates. Noting that she was not aware that Complainant had an accent mark in his name, S4 instructed S2 to ask Complainant to erase the mark and to request a new name plate if his name in fact had an accent mark. She stated that she was concerned that the mark "was being perceived as a dig" toward CW4, whose name has an accent mark, and that she had asked CW6's supervisor to speak with CW6. Complainant removed the accent mark from his name plate and sent a July 29, 2010, e-mail to the AO requesting a new name plate. In an August 5, 2010, e-mail to S4, Complainant stated that he put the accent mark on his name plate after a Potential Charging Party asked Complainant why he did not have an accent mark on his name. He stated that he discussed the matter with his family, liked the story behind his name, and placed the accent mark on his name. S4 replied on August 11, 2010, that she had inquired about the accent mark because the recent addition of accent marks to the name plates of Complainant and another employee "was perceived as a personal slight and insult toward" CW4. S4 stated that requests to change professional names must be submitted "through the appropriate channels, as other employees have done," and explained that supporting documentation is necessary when there is a cost involved.
In his complaint, Complainant asserted that S4 instructed him to remove the accent mark from his name plate "because it offended a white female." He also asserted that the only employees in the DFO who have accent marks on their name plates are white females.
S2 stated that she asked Complainant to remove the accent mark at S4's request and that she did not inform Complainant that S4 was concerned that Complainant's action could be interpreted as an insult to CW4. S4 stated that CW4's use of an accent mark "was a topic of discussion in the office." She also stated that the District Director visited the office, noticed the accent marks that Complainant and CW6 had added to their name plates, and believed that the marks were intended to harass CW4. S4, who believed that Complainant added the accent mark in an attempt to exacerbate the conflict with CW4, stated that she wanted to avoid further conflict between the two employees.
Allegation d
Complainant asserted that the Agency retaliated against him for protected activity by refusing to provide him with a copy of IO2's investigative report. According to the ROI, "Complainant raised this claim in connection with EEO Complaint No. 201000003, which [was] currently at hearing before an Administrative Judge."
In a July 14, 2011, declaration that the Agency submitted during the pre-hearing process, the Harassment Prevention Coordinator stated that the Agency provided Complainant and CW4 with summaries of the investigative findings relating to their internal harassment complaints but did not provide them with the investigative files. According to the Harassment Prevention Coordinator, this is because internal harassment-investigation files are "maintained on a confidential basis to the greatest extent possible," the Agency's internal harassment policy and process do not provide appeal rights or remedies, and employees may file harassment claims under other processes.
Allegations e and f
Complainant alleged that S1 told CW3 and CW6 during their Fiscal Year (FY) 2010 performance evaluations that Complainant had closed a number of cases while volunteering in the mail unit. He asserted that S1 did so in an effort to make CW3 and CW6 upset with Complainant.
CW3, who also had volunteered for the mail unit, stated in her affidavit that S1 told her during her performance review that Complainant had completed twice as many investigations as she completed. According to CW3, S1 used the comparison as a basis for not giving CW3 an "Outstanding" rating. CW3 did not interpret S1's statement as an attempt to cause tensions between her and Complainant.
On November 10, 2010, Complainant received a rating of "Highly Effective" on his FY 2010 performance evaluation. In comments attached to the evaluation, Complainant described his accomplishments and requested reconsideration of the evaluation. On November 17, 2010, Complainant received a revised FY 2010 performance evaluation with a rating of "Outstanding." S2 was the Rating Official and S4 was the Reviewing Official for both versions of the evaluation.
In his formal complaint, Complainant alleged that S4 discounted his accomplishments and denied his request to revise his rating. He also alleged that S4 "immediately" revised the performance evaluation of a white Investigator (CW7) who challenged his performance evaluation but did not submit a written request for reconsideration.
CW7 stated that he spoke with the DFO Director about his FY 2010 performance rating, that the DFO Director discussed the matter with S4 and then informed CW7 of S4's reasons for the rating, and that he submitted a written response to the DFO Director. His rating was changed approximately one week after he submitted the written response.
S2 stated that she initially gave Complainant and CW7 "Outstanding" ratings on their FY 2010 performance evaluations. At S4's direction, S2 lowered both ratings. S2 also stated that she told S4 that she could support an "Outstanding" rating for Complainant more easily than she could for CW7. According to S2, S4 subsequently instructed her to revise the ratings and to give both Investigators "Outstanding" ratings.
S4 stated that she reviewed the proposed ratings for Complainant and CW7 and asked S2 for more information. She did not believe that S2 submitted sufficient additional information to support the proposed "Outstanding" ratings. Complainant and CW7 challenged the ratings, and S4 had "several discussions" with S2 and the DFO Director about the matter. After "quite a bit of back and forth regarding both evaluations," both ratings were changed.
Allegation g
In a January 26, 2011, e-mail to S2, Complainant stated that he returned from vacation on January 3 and noticed that a black fleece pullover, an umbrella, and some notebooks were missing from his office. S2 forwarded the e-mail to S4. S4 then sent an office-wide e-mail notifying employees that items were missing from Complainant's office, asking them to return the items if they had borrowed anything, and asking employees to contact her or S2 if they knew where the items were. Subsequently, on February 15, 2011, S4 sent an e-mail to staff reminding them that staff is not responsible for employees' personal items. She subsequently sent a follow-up e-mail informing employees that they should let their supervisors know if they do not have keys to the drawers in their offices.
Complainant alleged in his complaint that S4 did not investigate the matter and did not follow Agency procedures. S4 stated in her affidavit that both Complainant and CW6 informed her that their property had been taken or moved. She also stated that, in response to her office-wide e-mail, someone told her that employees did not have keys to the drawers in their offices. As a result, S4 asked the AO to ensure that everyone had keys to cabinets in their offices.
Allegations h and i
Around February 1, 2011, when Complainant was interviewing a Charging Party in his office, S1 came to the office and told him that the DFO Director prohibited him from interviewing Charging Parties in his office. In a February 3, 2011, "follow-up" e-mail to Complainant, S2 told Complainant that he must follow the office safety policy. She stated that the policy had been "recently reiterated" in light of threats that the office received in December 2010. S2 also stated, "Although I received an e-mail from you in September 2008 . . . [S1 and S4] were not aware of any previous concerns based on health related reasons." S2 advised Complainant to contact the Agency's Disability Coordinator if he wanted to make a reasonable-accommodation request. In response, Complainant asserted that the Charging Party had not been threatening or intimidating. He stated that he conducted the interview in his office because his eye was bothering him and the limited lighting in his office reduced the sensitivity in his eye.
In a February 4, 2011, e-mail to Complainant, S4 stated that the DFO Director had instructed S1 to tell Complainant that safety considerations precluded parties from going to secured areas for interviews. She noted that another staff member had raised concerns about the incident. S4 sent a February 11, 2011, office-wide e-mail reminding staff that they should not conduct interviews in their offices without prior permission.
Complainant asserted in his complaint that the Charging Party had not posed a threat. Referring to matters involving Allegations b, c, and g, Complainant alleged that S4 responded to other employees' concerns differently from the way that she responded to his concerns. He argued that S4 characterized his e-mail as an "attack" on S1 but treated white employees' complaints about his March 29, 2010, e-mail and the accent mark on his name plate as legitimate complaints. Complainant further argued that "nothing is done" when he complains to S4 about discrimination, stolen property, and unequally applied policies.
S2 stated that she sent S4 a February 3, 2011, e-mail telling her that S1 had told Complainant that he could not interview Charging Parties in his office. According to S2, she noted in the e-mail that there were times when Complainant needed a controlled environment because of a medical condition. S2 stated in her affidavit that, because of a medical condition, "Complainant sometimes interviewed Charging Parties in his office." She also stated, however, that this "rarely happened and it had been some time before the incident at issue that he had interviewed a Charging Party in his office."
S4 stated that she was not aware of Complainant requesting or receiving a reasonable accommodation. She also stated that, shortly before the incident, two employees in the office had "raised concerns about threats made by the public." With respect to Complainant's assertion that S4 treated his complaints differently from the way that she treated other employees' complaints, S4 stated that she determines the appropriate action to take based on the facts and circumstances of each allegation. According to S4, "[n]ot all allegations require the same response."
The DFO Director stated that an employee went to her office, asserted that the Charging Party in Complainant's office was becoming loud and aggressive, and expressed concern for her safety. Accordingly, the DFO Director instructed S1 to ask Complainant to take the Charging Party to an intake room in the non-secured area. The DFO Director asserted that "there had been a couple of incidents" raising safety concerns.
Final Agency Decision
The Agency issued a final decision on Complaints Number 2010-00003 and 2011-33815 on April 17, 2014. In its decision, the Agency found that Complainant did not prove that the Agency discriminated against him as alleged. The Agency concluded that Complainant did not establish a prima facie case of discrimination with respect to the DNA of Leadership training because he could not show that his non-selection was a materially adverse action or that it occurred under circumstances giving rise to discrimination. In addition, the Agency found that it articulated legitimate, nondiscriminatory reasons for the non-selection, and that Complainant did not establish that the articulated reasons were pretextual.
Further, the Agency found that Complainant did not establish that the Agency subjected him to discriminatory harassment. The Agency concluded that Complainant's allegations regarding office assignments, work assignments, advancement opportunities, and leadership opportunities were time-barred and were isolated events that did not constitute a hostile work environment. The Agency further concluded that Complainant did not demonstrate that the incidents raised in his complaints were based on his membership in a protected class or were sufficiently severe or pervasive to create a hostile work environment. With respect to Complainant's allegations of reprisal for protected activity, the Agency found that Complainant did not demonstrate that he suffered a materially adverse employment action.
Finally, the Agency found that Complainant did not establish that the Agency processed his complaints improperly. The Agency concluded that the evidence supported the OEO Director's explanations and that Complainant did not show that OEO staff tried to delay the process or prevent Complainant from engaging in the complaint process.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency subjected him to discrimination and harassment on the bases of race, color, national origin, disability, and reprisal for prior EEO activity. He asserts that the Agency has "significantly low numbers for Hispanics [in] leadership positions" and alleges that the Agency has engaged in a pattern or practice of discrimination against Hispanic employees. Complainant reiterates his version of the events at issue and argues that he was "harassed, denied equal terms and conditions of employment, and subjected to retaliation." In addition, Complainant argues that the ROI for Complaint Number 2013-33815 "was inaccurate, omitted relevant facts, and . . . was an attempt to manipulate the EEO process." Complainant alleges that the OEO Director "displayed preferential treatment to member(s) of the LGBT community" and was biased against Complainant because he is not a member of the LGBT community.
In response, the Agency argues that the final agency decision correctly found that Complainant did not establish that the Agency subjected him to discrimination, retaliation, or harassment. The Agency contends that the incidents at issue did not rise to the level of a materially adverse action. The Agency also contends that Complainant did not show that it improperly processed Complaint Number 2011-33815.
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 (EEO MD-110), at 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
Complaint Processing
Complainant has alleged that the Agency delayed the processing of Complaint Number 2011-33815 and that the investigation was biased and conducted improperly.
The record does not support Complainant's allegations. For example, there is no merit to Complainant's claim that the omission of the word "Affidavit" next to the names of S2 and CW6 in the Table of Contents demonstrates an implicit bias against non-whites. S2 and CW6, unlike the other witnesses, did not sign the documents listed in the Table of Contents and the documents therefore have no evidentiary value. Thus, although we have relied on the information in S2's signed affidavits, we have not considered the statements in the unsigned documents.
Further, Complainant has not established that the OEO Director conducted a biased investigation of his complaint. Complainant has asserted that the OEO Director interviewed him "in a brow-beating and intimidating fashion," but he has not identified specific inappropriate conduct on the part of the OEO Director. Certainly, experienced EEO Investigators obtain more useful information through persuasion and empathy, rather than confrontation and argument. In this case, however, the evidence of record does not establish that the OEO Director behaved in a biased or inappropriate manner. To the extent that Complainant has argued that the OEO Director did not interview relevant witnesses and omitted relevant documents, we note that Complainant had ample opportunity to submit information and that he did, in fact, submit several hundred pages of documents. We have reviewed and considered all of Complainant's submissions.
The Agency's nearly two-month delay in responding to Complainant's March 17, 2011, request to initiate an EEO complaint is unacceptable, especially because counseling is supposed to be concluded within 30 days of initial contact unless extended through the complainant's agreement. See 29 C.F.R. � 1614.105(d)-(e). There is no evidence that discriminatory animus motivated the delay, and our review of the record discloses no evidentiary deficiencies resulting from the delay. Nonetheless, the Agency's conduct raises concerns. It is unacceptable that Complainant's request "somehow fell through the cracks." We caution the Agency that it has an obligation to ensure that such "inadvertent errors" do not occur in the future.
Non-Selection for DNA of Leadership Training
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or 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); see also Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004 (Enforcement Guidance on Retaliation), at � II. (Aug. 25, 2016) (elements of a retaliation claim are (1) protected activity, (2) materially adverse action taken by the employer, and (3) causal connection between the protected activity and the materially adverse action). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. � 2000(e)-3(a).
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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant for the DNA of Leadership training. The District Director stated that he did not choose Complainant because Complainant did not list his DFO accomplishments on the nomination form. CW2, on the other hand, "talked about all the leadership things he's done in the Denver Office."
Complainant has argued that the District Director gave varying explanations for his non-selection and that managers pre-selected CW2 for the training. He has also argued that the District Director did not select him for the training because he complained about the relationship between DFO attorneys and certain outside attorneys.
We find that Complainant has not shown that the articulated reason was a pretext for discrimination based on Complainant's national origin, color, or prior EEO activity. First, the record does not establish that the District Director was aware of Complainant's prior EEO activity. To the extent that Complainant is asserting that his complaints about the relationship between DFO attorneys and certain outside attorneys constituted protected EEO activity, he has not shown that to be the case. Nothing in his February 27 and April 1, 2008, communications alleged a violation of EEO laws or otherwise constituted opposition to discrimination or participation in the statutory complaint process.
Further, Complainant's allegation that managers pre-selected CW2 for the DNA of Leadership Training does not establish that the District Director chose CW2 for discriminatory reasons. Pre-selection, without more, does not constitute unlawful discrimination. The Commission has long held that pre-selection is not a violation of EEO laws as long as discriminatory factors are not considered. Complainant v. Dep't of Defense, EEOC Request No. 0520140462 (Sept. 25, 2015); Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120120166 (Aug. 7, 2015) (citing McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994)).
Finally, although the District Director's statement in his affidavit differed from what Complainant and S2 stated that he told them previously, we do not find that the alleged shifting explanations establish discrimination in this case. We give greater weight to the statements that the District Director made in his sworn affidavit than to Complainant's and S2's accounts of what the District Director allegedly said to them. Having carefully considered the evidence of record, we cannot say that discriminatory animus motivated Complainant's non-selection for the training.
Retaliation
Complainant has alleged that the Agency subjected him to a discriminatory hostile work environment and retaliated against him for protected EEO activity with respect to several incidents.
With respect to the retaliation claim, Complainant asserted that his office managers had an all-day meeting on or about Wednesday, October 21, 2009. The following day, complainant stated that S1 came into his office and that Complainant asked him how the meeting went the day before. S1 stated that "We spent half the meeting talking about you and your complaint." S1, who acknowledged making the statement, asserted that he was just joking with Complainant and that his comment was not designed to deter Complainant from engaging in EEO activity.
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation at II.B.
Given the importance of maintaining "unfettered access to [the] statutory remedial mechanisms" in the anti-retaliation provisions in Title VII, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, we have held that a supervisor threatening an employee by saying "What goes around, comes around" when discussing an EEO complaint constitutes an adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint "as a friend," even if intended innocently, is an adverse action. Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office).
S1's comment here certainly does not fall into the category of a threat or harassment, and is a closer case than the ones described above. Nevertheless, consistent with our broad interpretation of the anti-retaliation provisions in Title VII, we find that S1's "joke" about managers discussing Complainant's EEO complaint at a management meeting is reasonably likely to deter a reasonable employee from engaging in protected activity and has a potentially chilling effect on the EEO process. Employees have a right to file EEO complaints and to engage in protected EEO activity without being subjected to comments that managers wrongly intend to be "joking" or "humorous." We note that whether the managers actually discussed Complainant's EEO complaint at the meeting is immaterial. S1 acknowledged that he made the statement, and the idea behind the statement - that managers would spend half of a meeting discussing an EEO complaint - was sufficient to discourage an individual from pursuing protected activity. In point of fact, Complainant specifically mentioned that S1's statement had a chilling effect on his intention to continue his protected activity. Accordingly, we will order the Agency to post a notice of this finding and to provide EEO training at DFO.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [a complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement Guidance on Vicarious Employer Liability). No affirmative defense is available when a supervisor's harassment results in a tangible employment action. Burlington Industries at 762-63; Faragher at 808.
In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See Enforcement Guidance on Vicarious Employer Liability. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).
With respect to the other incidents at issue, we find that Complainant has not established that the incidents occurred because of his prior EEO activity or his membership in a protected group. First, Complainant has not shown that the Agency in fact gave preferential treatment to white employees with respect to office and work assignments and leadership and advancement opportunities. Complainant's bare allegation, without substantiating evidence, is insufficient.
Further, there is no evidence that discriminatory animus motivated the theft of Complainant's personal property. Similarly, the evidence does not establish that the DFO Director referred to Complainant as "conniving" for reasons related to his protected EEO activity or other protected basis. In that regard, we note that the Director denied making the comment and that, assuming arguendo that she made such a comment, we cannot say based on the record before us that she did so for discriminatory reasons. In addition, the evidence of record refutes Complainant's allegation that managers ignored his November 3 and December 9, 2009, complaints. S4 stated that she spoke with Complainant and S1 "[o]nce she was put on notice" of S1's comment and that she gave S1 a verbal warning. She met with Complainant and his union representative regarding the December 9 complaint on December 15, 2009.
Moreover, there is no merit to Complainant's claim that he was discriminatorily forced to defend himself against CW4's harassment claim. The Agency had an obligation to investigate CW4's claim. See Enforcement Guidance on Vicarious Employer Liability (employer is liable for harassment by co-workers "if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action); Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. 915-050 (Mar. 19, 1990) ("When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly."). That obligation, rather than discriminatory animus, motivated the Agency's investigation of CW4's allegations of harassment. See Prevention and Elimination of Harassing Conduct in the Workplace, EEOC Order No. 560.005, at � 8 (Aug. 9, 2006) (EEOC internal anti-harassment policy states that supervisors or managers who receive reports of abusive conduct must notify the Director of Human Resources and must determine whether immediate corrective action is required; Director of Human Resources must require affected office to conduct a preliminary investigation and must determine whether further investigation is necessary; employees must cooperate fully in any investigation).
There also is no merit to Complainant's claim that the Agency discriminated against him when it searched his computer. The record establishes that the Agency examined the computers of Complainant and at least three other employees in an effort to determine who had printed the derogatory material about CW4. Thus, the Agency examined Complainant's computer for a legitimate, nondiscriminatory reason - its obligation to investigate CW4's harassment claim - rather than because of Complainant's protected characteristics or prior EEO activity. Further, to the extent that Complainant has asserted that the Agency violated his Weingarten rights with respect to the search, we note that the Commission has held that the grievance process under the collective bargaining agreement, not the EEO process, is the proper forum in which to raise a claim regarding a violation of Weingarten rights. See Simensen v. U.S. Postal Serv., EEOC Appeal No. 01A21068 (Feb. 26, 2002).
With respect to Complainant's allegations regarding the "bump-shove" incident, we credit IO2's conclusion that CW4 made unwelcome physical contact with Complainant. We find, however, that the evidence of record is insufficient to prove that the incident constituted illegal discrimination. Although Complainant alleges that CW4 bumped him in retaliation for his interview with IO1, he has not proven that to be the case. For example, the evidence does not establish that CW4 knew about the content of his January 5, 2010, interview when she bumped him a week later, on January 12, 2010. Similarly, the evidence does not establish that CW4 acted out of animus based on any of Complainant's other protected groups. Instead, the evidence indicates that the work relationship between Complainant and CW4 deteriorated after CW4's remarks at the September 2009 union meeting. We do not find, based on the evidence of record, that the "bump-shove" constituted discriminatory harassment.
Complainant has alleged that managers ignored his complaint about the "bump-shove." S2 reported Complainant's "bump-shove" complaint to S4 on January 12, 2010, and S4 forwarded the complaint to IO1 on January 29, 2010. It is not clear from the record whether anyone notified Complainant that his complaint had been forwarded to IO1. It also is not clear why the District Director waited until February 27, 2010, to appoint IO2 to investigate Complainant's and CW6's allegations that CW4 had shoved them. Although the delay was inappropriate, the evidence of record does not establish that the delay occurred because of discriminatory animus. Accordingly, we find that Complainant has not shown that the Agency discriminated against him by delaying the investigation into his internal harassment complaint. Nonetheless, we urge the Agency to ensure that all of its managers understand their obligation to respond appropriately to harassment complaints. As noted above, the Agency has an obligation to investigate harassment allegations promptly and to take immediate and appropriate corrective action. See Enforcement Guidance on Vicarious Employer Liability; Policy Guidance on Current Issues of Sexual Harassment; Prevention and Elimination of Harassing Conduct in the Workplace, EEOC Order No. 560.005.
Complainant also has alleged that DFO management interfered with the investigation of his complaint and that the Agency refused to provide him with a copy of IO2's report. The record establishes that Agency managers did not adopt the findings of IO2. The evidence, however, indicates that the managers genuinely disagreed with the findings and wished to avoid additional office strife. The evidence does not establish that discriminatory animus motivated the rejection of IO2's findings. We note, for example, that the Harassment Prevention Coordinator was concerned about finding a violation in the absence of evidence to establish that CW4 bumped Complainant intentionally and for discriminatory reasons. Further, Complainant has not shown that the Agency's refusal to provide the report to him was discriminatory. In that regard, we note that there is no evidence that the Agency provided a copy of IO1's report to CW4. Accordingly, we find that Complainant has not shown that the Agency's actions with respect to IO2's report and findings were the result of discrimination based on Complainant's protected EEO activity or Complainant's membership in other protected classes.
We further find that Complainant has not shown that the Agency discriminated against him with respect to the incidents surrounding the March 2010 intake matter, his placement of an accent mark on his name plate, and his FY 2010 performance evaluation. S4 sent the March 29, 2010, e-mail to Complainant because he was not the supervisor of CW2 and CW4 and she was concerned about the contentious relationship between Complainant and CW4. Further, given that CW4 had an accent mark in her name and that Complainant placed the accent mark on his name plate shortly after the investigation of CW4's harassment complaint, S4 reasonably believed that Complainant and CW6 added accent marks to their nameplates in an attempt to exacerbate the conflict with CW4. In addition, there is no evidence that discriminatory animus motivated S1 to mention Complainant's productivity to CW3 and CW6 during their FY 2010 performance evaluations. Similarly, there is no evidence that discriminatory animus motivated the initial, "Highly Effective" rating on Complainant's FY 2010 performance evaluation or delayed reconsideration of the rating. On the contrary, the evidence establishes that a white Investigator (CW7) also received an initial rating of "Highly Effective" and that, like Complainant, he received a revised, "Outstanding" rating approximately one week after requesting reconsideration.
Finally, we do not find that the Agency discriminatorily prohibited Complainant from interviewing a Charging Party in his office in February 2011. There had been safety concerns at the DFO, and an employee told the DFO Director that the Charging Party was becoming loud and aggressive. As S2 and S4 noted in their February 2011 e-mails to Complainant, the office's safety policy prohibited staff from conducting interviews in secured areas. Based on the evidence of record, we find that safety concerns, rather than discriminatory animus, were the motivation for the prohibition.
Complainant has asserted that the Agency permitted him to interview Charging Parties in his office on an intermittent basis as a reasonable accommodation for his disability.9 S2 stated that Complainant "sometimes" conducted interviews in his office, that this happened "rarely," and that "it had been some time before the incident at issue" that this had occurred. There is no evidence that Complainant ever submitted a formal request for reasonable accommodation or that the DFO Director, S1, or any other manager was aware of this informal arrangement. Accordingly, we cannot say that the Agency discriminated against Complainant on the basis of disability when it prohibited him from interviewing the Charging Party in his office.
We find that S1's statement that managers spent half of an October 2009 meeting discussing Complainant's EEO complaint has a potentially chilling effect on the use of the EEO complaint process and constitutes a per se violation of Title VII. See Webster, EEOC Appeal No. 0120080665; Switzer, EEOC Appeal No. 0120062080; Enforcement Guidance on Retaliation at II.B.1. We further find that the evidence of record does not establish that the Agency took any of the other actions at issue because of Complainant's race, color, national origin, disability, or prior protected EEO activity. A finding of discriminatory or retaliatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected him to a hostile work environment based race, color, national origin, disability, or prior protected EEO activity. We further find that Complainant has not demonstrated that the Agency subjected him to adverse treatment based on a retaliatory motive.
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 decision. We REVERSE the Agency's finding that it did not subject Complainant to reprisal with respect to S1's October 22, 2009, comment. We AFFIRM the Agency's final decision in all other aspects. We REMAND the matter to the Agency for further action in accordance with this decision and the Order below.
ORDER
The Agency is hereby ORDERED to take the following remedial actions:
1. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall provide appropriate in-person EEO training to the responsible management official on the topic of reprisal/retaliation.
2. The Agency shall post a notice of the finding of discrimination, pursuant to 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 (G1016)
The Agency is ordered to post at its Denver Field Office 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 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 (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.
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:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__1/24/17________________
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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is housed in an office that is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party to this action. The Chair has recused herself from participation in this decision.
3 Complainant also alleged that he was "subjected to retaliation for being a whistleblower and reporting unethical behaviors in violation of but not limited to the No FEAR Act and 5 U.S.C. � 2302." The Commission has held that whistleblower activities are generally outside the purview of the EEO process. Trent M. v. Dep't of Justice, EEOC Appeal No. 0120142277 (Oct. 1, 2015); Giannou v. Dep't of Housing and Urban Dev., EEOC Request No. 05880911 (Feb. 13, 1989).
4 Although Complainant and the Agency's acceptance letter identified S1 as an Enforcement Supervisor, the record indicates that S1's title was Supervisory Investigator.
5 We note that the Commission considers the terms "Hispanic" and "Latino" to denote a national origin rather than a race. In any event, the same analytical frameworks apply to claims of race discrimination as to claims of national origin discrimination.
6 The Agency's final decision in Complaint Number 2013-0020 was affirmed in Charlie K. v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120141109 (November 17, 2016).
7 The District Director served as the Acting District Director of the Agency's Phoenix District Office, which has jurisdiction over the DFO, from July 21, 2009, until he became the District Director in October 2010. For ease of reference, this decision refers to him as the "District Director."
8 S2 did not sign the document contained in the "Evidence and Documents" section of the Report of Investigation (ROI). Complainant submitted more than three hundred pages of documents, including an affidavit that S2 signed on May 24, 2012. With respect to the matters raised in Complaint Number 2011-33815, this decision's references to S2's affidavit pertain to the signed affidavit.
9 We assume for purposes of analysis only, without so finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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