EEOC Appeal No. 0720140037
05-29-2015
Complainant v. Dep't of Homeland Sec.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0720140037
Hearing No. 480-2010-00631X
Agency No. HSCBP006542010
DECISION
Following its December 6, 2013, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Sector Enforcement Specialist at the Agency's Tactical Communication Center in Chula Vista, California.
On April 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (back injury), age (61), and reprisal for prior protected EEO activity when:
1. On January 7, 11, and 28, 2010, he was directed to prepare memoranda regarding his leave requests;
2. On or around February 11, 2010, he learned that he was not selected for the position of Supervisory Sector Enforcement Specialist;
3. On April 6, 2010, he was verbally counseled regarding creating work schedules and daily work assignments;
4. On June 7, 2010, he was notified that he would be suspended for five days; and
5. On June 22, 2010, he was issued a counseling memorandum.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On September 15, 2011, the Agency submitted a Motion for a Decision Without a Hearing, and Complainant subsequently submitted a response. On October 4, 2012, the AJ issued a decision partially granting the Agency's Motion for a Decision Without a Hearing. Specifically, the AJ found that a hearing was not necessary for Complainant's claims 1-3 and 5, as there were no genuine issues of material fact in dispute, and there was no evidence in the record that would establish that Complainant was subjected to discrimination. The AJ ordered that Complainant's claim 4 go to a hearing, as the record needed to be further developed with respect to this claim and credibility determinations needed to be made.
On July 25, 2013, the AJ held a hearing on Complainant's claim 4. On November 4, 2013, the AJ issued an order entering judgment from his bench decision that was issued on August 20, 2013.
With regard to claim 4, the AJ articulated the following findings of facts: On September 29, 2009, Complainant's supervisor (S1) met with Complainant in his office to discuss whether Complainant had followed appropriate procedures in changing his scheduled days off. At the end of the conversation Complainant stood and made a comment that included Complainant's intention to file an EEO complaint. According to S1's version of events, Complainant said, "Don't cross me, [S1]. You'd better write all this down. This has EEO written all over it. And you'll hear from my lawyer." According to Complainant, he testified that he said, "This is a hostile work environment. I am a disabled veteran. I will sue. Please do not cross me, [S1]." S1 thought that Complainant's behavior was threatening and consulted with Human Resources personnel, who advised him to document it and sent it to his supervisors for consideration of disciplinary action.
On November 20, 2009, the Acting Division Chief (S2) issued Complainant a proposed suspension for alleged failure to follow established leave procedures and unprofessional conduct. The unprofessional conduct charge was based on the statement that Complainant made at the end of his conversation with S1. This Notice of Proposed Suspension specifically mentioned S1's version of Complainant's comments regarding EEO and contacting his lawyer.
On June 7, 2010, the Acting Deputy Chief Patrol Agent (S3) issued a letter to Complainant stating that he determined that the evidence did not support the charge of failing to follow leave procedures. However, S3 determined that the evidence supported the charge of unprofessional conduct based on Complainant's EEO statements to S1 at the end of their conversation.
At the hearing S3 stated that he concluded the conduct was unprofessional based on the tone Complainant used and he considered Complainant's statement regarding his intention to file an EEO complaint to be an "aggressive threat." In S3's testimony he compared Complainant's statement to what he considered equivalent hypothetical statements such as if Complainant had threatened to slice S3's tires or if he threatened to lie about S3. Hearing Transcript at 135. S3 also testified that Complainant's threats to sue the Agency showed insubordination, and since the statement was made in an open doorway anyone could have witnessed the insubordinate behavior. As a result, Complainant was suspended for five days.
The AJ found that this suspension was retaliation for Complainant's protected EEO activity. The AJ ordered as relief that the Agency: pay Complainant an award of back pay with interest, calculated in accordance with 5 CFR � 1614.501, for the five days that he was suspended; pay Complainant $3,000 in non-pecuniary compensatory damages; expunge all evidence of Complainant's suspension from his personnel file and all other Agency files; provide training to all managers in the facility with an emphasis on retaliation under EEO laws; and post a notice of discrimination.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to reprisal discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal the Agency contends that the AJ erred in his finding that the Agency retaliated against Complainant because in his decision the AJ did not address the Supreme Court's decision in in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013).
In a cross appeal,1 Complainant only challenges the Agency's refusal to adopt the AJ's decision. Complainant asserts that even if the Commission was to apply the "but for" analysis the Supreme Court used in Nassar, supra, the records establish that Complainant was subjected to reprisal with regard to claim 4. We note that Complainant did not assert in his cross appeal that the AJ erred when he issued a decision without a hearing for claims 1-3 and 5, or that the AJ erred when he found that Complainant failed to establish discrimination with regard to these claims.
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 110, Chapter 9, at � VI.B. (November 9, 1999).
Summary Judgment
We note that in his cross appeal Complainant did not challenge the AJ's issuance of a decision without a hearing for claims 1-3 and 5. Additionally, Complainant did not challenge the AJ's finding that Complainant did not establish discrimination for these claims.
After a careful review of the record we find that the AJ's issuance of a decision without a hearing was appropriate. With regard to claims 1-3 and 5, the record was adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. Further, we agree with the AJ that even if we assume all facts in favor of Complainant, a reasonable fact finder could not find in Complainant's favor as the evidence in the record did not establish by a preponderance of the evidence that discrimination existed as alleged with regard to these claims.
Causation Standard
With regard to claim 4, which went to a hearing and resulted in the AJ's finding of reprisal discrimination, the Agency argues that the AJ erred when he did not identify the causation standard he applied in finding retaliation. The Agency asserts that the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar should apply. Nassar, supra. In that case, the Court analyzed the standard for causation for Title VII retaliation claims, and noted that Congress' specific language in Title VII stating that it is an unlawful employment practice for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin" (emphasis added), required the proper causation standard for retaliation claims to be a "but-for" standard.
However, in Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar, 133 S. Ct. 2517 (2013) and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623). These federal sector provisions contain a "broad prohibition of "discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. � 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. � 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin").
In Petitioner v. Dep't of Interior, supra, the Commission clarified the causation standard for retaliation claims under Title VII or the ADEA for federal sector applicants or employees. Specifically, the Commission found that the anti-retaliation provisions makes it unlawful to discriminate against any individual because he or she has complained, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under the employment discrimination statutes. The Commission reiterated what a complainant must generally do to prove retaliation:
To prevail, Complainant must prove by a preponderance of the evidence that (1) she engaged in protected activity; (2) was subject to an . . . adverse action; and (3) there was a causal nexus between the two. The causal nexus requires a showing that retaliation for her prior protected activity more likely than not caused the challenged actions....
Additionally, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). For example, retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; See also Carroll.
We find that the AJ did not err when he did not refer to Nassar, supra, in his decision, as that case does not apply to the federal sector. A review of the AJ's decision reveals that the AJ properly laid out the proper causation standard on pages 11- 14 of the bench decision.
We agree with the AJ that Complainant established a prima facie case of reprisal discrimination. Specifically, Complainant engaged in protected activity when he made statements to S1 indicating that he opposed the Agency's alleged discriminatory practices and that he intended to file an EEO complaint.2 He was then subjected to an adverse action when he was suspended for five days. There is a causal nexus between the two because Notice of Proposed Suspension and the Notice of Suspension specifically reference Complainant's remarks to S1 about his intention to file an EEO complaint and to contact a lawyer based on his perception of harassment by the Agency.
S1 and S3 stated that the conduct was unprofessional because of the threatening manner in which he made the statements and because of the open forum in which he made the statements. The AJ did not find S3's testimony credible, and there is nothing in the record that would cause us to disturb the AJ's credibility determination. Further, the AJ noted that neither the Notice of Proposed Suspension nor the Notice of Suspension describe Complainant's conduct as threatening, and there is no evidence that the comments made by Complainant were witnessed by anyone other than S1. After a review of the entire record, we find that a preponderance of the evidence of the record establishes that Complainant was subjected to discrimination on the basis of reprisal for prior protected EEO activity.
Relief
Neither party specifically challenged the AJ's ordered relief. After a review of the entire record, we find that the AJ's ordered relief was appropriate. In our order below we also include some additional and more specific relief.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, as a preponderance of the evidence establishes that Complainant was subjected to discrimination on the basis of reprisal for prior protected EEO activity when he was suspended for five days. The Agency is ORDERED to comply with our order below.
ORDER
The Agency is hereby ORDERED to take the following remedial actions:
1. Within one hundred twenty (120) days of the date this decision becomes final, the Agency shall pay Complainant $3,000 in non-pecuniary compensatory damages.
2. Within one hundred twenty (120) days of the date this decision becomes final, the Agency shall pay Complainant back pay, with interest, for the five days that he was suspended. Back pay shall be computed in conformity with 5 C.F.R. � 550.805. Benefits required to be restored to make Complainant whole include, but are not limited to, the following: seniority, sick and annual leave, health and life insurance, and any in-grade step(s) and/or promotion(s) to which he would have been entitled. 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 about the amount of back pay, interest due, and/or other benefits, the Agency will issue a check to Complainant for the undisputed amount within 120 calendar days of the date this decision becomes final. Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.
3. Within one hundred twenty (120) days of the date this decision becomes final, the Agency shall expunge all evidence of Complainant's suspension from his personnel file and all other Agency files;
4. Within one hundred twenty (120) days of the date this decision becomes final, the Agency shall provide 16 hours of training to all managers at the facility on all aspects of EEO law and management's responsibilities under EEO laws, regulations, and EEOC management directives, with an emphasis on retaliation under EEO laws;
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials (S1, S2, and S3) involved in the retaliation against Complainant. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the agency shall furnish documentation of their departure date(s).
6. The Agency shall post the attached notice of discrimination, as described below.
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 of the Agency's calculation of leave and any other benefits due Complainant, including evidence that the corrective action has been implemented.
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.
POSTING ORDER (G0914)
The Agency is ordered to post at its Chula Vista, California, facility(s), copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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).
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
5-29-2015
__________________
Date
1 We note that Complainant's cross appeal was originally docketed as 0120140611, and was administratively closed and consolidated with this appeal on August 22, 2014.
2 We note that the Agency mentioned a few times in its brief that "Complainant is an admitted frequent filer of EEO complaints...". We note that this fact is not dispositive and has no bearing on the facts of this case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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