[Redacted], Angeles C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2020001072 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angeles C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food and Nutrition Service), Agency. Request No. 2021004653 Appeal No. 2020001072 Agency No. FNCS-CF-2018-00240 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001072 (July 22, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s request for reconsideration is DENIED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Director at the Agency’s Office of Management, Human Resources Division in Alexandria, Virginia. 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. 2021004653 2 In December 2017, the Agency conducted a climate assessment/management inquiry utilizing a third-party contractor. Complainant alleged that a contract consultant (CC1) told her that it would be better to resolve her issue through the climate assessment, instead of the equal employment opportunity (EEO) process, because “the process is long and furthermore it will be difficult under this Administration since this Administration does not care about EEO. Thus trying to deter [Complainant] from filing.” Report of Investigation (ROI) at 161. On February 5, 2018, Complainant filed two EEO complaints, which the Agency consolidated for processing. In her consolidated EEO complaint, Complainant alleged that the Agency discriminated against her on the bases of race (Afro Latina/Black Latina), national origin (Panamanian), sex (female), and in reprisal for prior protected EEO activity. As part of her complaint, Complainant alleged that she was subjected to harassment, including the incident on December 4, 2017, during her climate assessment interview, when she was discouraged from utilizing the EEO process. In accordance with Complainant’s request, on September 27, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency’s final decision. On July 22, 2021, the Commission issued a decision affirming in part, and reversing in part, the Agency’s decision. The Commission found that the Agency retaliated against Complainant based on CC1’s comments. Complainant averred that, during the course of an interview for the climate assessment, CC1 informed her that Complainant’s first-line supervisor (S1) had filed an EEO complaint and blamed Complainant for S1’s tension with Complainant’s second-line supervisor (S2), and that S1’s EEO complaint prompted the climate assessment. When Complainant discussed her own workplace issues, she alleged that CC1 responded, “It is better for you to try to resolve this issue in this platform rather than EEO. Because the process is long and furthermore it will be difficult under this Administration since this Administration does not care about EEO.” Angeles C. v Dep’t of Agriculture, EEOC Appeal No. 2020001072 (Jul. 22, 2021) The EEO Investigator did not interview CC1 during the investigation. Accordingly, the Commission found that Complainant’s affidavit describing the December 4, 2017 meeting with CC1 was unrebutted, and that Complainant established by a preponderance of the evidence that CC1 made these statements about S1’s EEO complaint. The Commission further found that CC1’s behavior constituted a violation of Title VII because her comments were reasonably likely to dissuade a reasonable person from engaging in EEO activity. As such, the Commission reversed the Agency’s finding of no discrimination on this claim and remanded the matter for corrective action. The Commission found that Complainant did not establish that the Agency subjected her to discrimination or retaliation for her remaining claims. 2021004653 3 On August 20, 2021, the Agency requested reconsideration of the appellate decision. The Agency argues that it was a clearly erroneous interpretation of the law to apply the vicarious liability standard to CC1’s alleged comments because the record is devoid of any evidence showing she was a federal supervisor or occupied a federal management position. The Agency contends that the Commission applied the incorrect legal standard for holding the Agency liable for comments made by a third-party contractor, and that it was not reasonable to conclude that CC1 was equal to an Agency supervisor or management official. The Agency asserts that a third- party contractor is equal to a coworker and, therefore, liability should be analyzed under the appropriate standard for coworker retaliatory harassment. Additionally, the Agency argues that CC1’s comments did not constitute per se reprisal, citing another Commission decision in which no reprisal was found when a supervisor stated, “the EEO process was a very long and detailed [one] and it can sometimes be difficult to prove your claim.” Alba H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120180460 (July 11, 2019). As a result, the Agency requests the Commission reconsider and vacate the decision finding the Agency to be in violation of the anti-retaliation provision of Title VII. Complainant did not file a response to the Agency’s request for reconsideration. ANALYSIS AND FINDINGS After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. As an initial matter, we note that the Agency argues for the first time, in its request, that CC1’s comment did not constitute per se reprisal. In the Agency’s appeal brief it argued that, when Complainant reported CC1’s comments discouraging her from filing an EEO complaint, the Civil Rights Director reassured Complainant that she had the right to pursue an EEO complaint. The Agency’s argument that CC1’s comments were not per se reprisal is newly raised, and the Commission has consistently held that a party may not raise new arguments in a request for reconsideration, which is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. As such, we find no reason to disturb the Commission’s finding in the appellate decision that Complainant was subjected to reprisal. While it is undisputed that CC1 was a contractor and not an Agency employee, the record shows that Complainant’s third-line supervisor, the Administrator, contracted CC1’s services to conduct the climate assessment on his behalf. 2021004653 4 Complainant stated that she first learned of the climate assessment from subordinate employees, who informed her that they were scheduled to meet with the Administrator. Since Complainant had no previous knowledge of the climate assessment, she contacted S1, who stated that the Administrator gave “talking points” explaining his belief that a climate assessment was necessary to ensure there were no concerns or issues within Human Resources. ROI at 163-4. Complainant subsequently emailed her employees that, “[t]he Administrator is conducting a climate assessment via a third party”, and that they would be scheduled for “a mandatory meeting”. ROI at 360. S1 confirmed that the Administrator instructed her to inform Complainant about the climate assessment. ROI at 232. CC1 made statements to discourage Complainant from engaging in the EEO process during their climate assessment meeting, while she was conducting official Agency business. In its request for reconsideration, the Agency argues that the appellate decision erred when it applied a vicarious liability standard to CC1’s statements,2 and that the Commission should have used a coworker standard to find no liability. However, the Agency raises the liability standards appropriate for harassment. In this case, the Commission concluded that Complainant was subjected to reprisal, not harassment. Further, the Commission has found that an employer cannot raise an affirmative defense to liability or damages for reprisal. See Complainant v. International Boundary and Water Comm., EEOC Request No. 0520130669 (Feb. 11, 2014). We find that the Agency has not met its burden to show that the appellate decision involved a clearly erroneous interpretation of material fact or law. The decision in EEOC Appeal No. 2020001072 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency shall undertake the following remedial actions: 1. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s claim of compensatory damages. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep’t of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 30 days after the completion of the investigation. 2. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice in accordance with the statement entitled “Posting Order.” 2 We note that the appellate decision did not discuss a vicarious liability standard. 2021004653 5 3. Within 90 calendar days of the date this decision is issued, the Agency shall provide four hours of in-person or interactive EEO training, with a special emphasis on reprisal, to CC1. 4. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against CC1. 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 employment, then the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission’s Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented POSTING ORDER (G0617) The Agency is ordered to post at its Food and Nutrition Service, Office of Management, Human Resources Division facility in Alexandria, Virginia copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 2021004653 6 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2021004653 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 2, 2022 Date