0120110109
09-06-2012
Samuel G. Armijo, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Samuel G. Armijo,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120110109
Agency No. FS-1998-00030
DECISION
On September 29, 2010, Complainant filed an appeal from the Agency's September 3, 2010, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency properly found that Complainant had not been subjected to harassment on the bases of sex, national origin, or age and (2) whether the Agency properly found that Complainant's EEO activity was a motive for Complainant's termination but that Complainant was entitled only to injunctive and declaratory relief because the Agency was justified in terminating Complainant's employment based on the falsification of his employment application.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Seasonal Forestry Technician in the Agency's Region 2, Bighorn National Forest, Buffalo/Tensleep Ranger District. He performed forestry tasks in recreation areas and wilderness, where he worked and lived under primitive conditions. Complainant worked for the Agency from June 29 through August 5, 1998. Report of Investigation (ROI) Exhibit (Ex.) 12.
On July 14, 1998, Complainant and his Assistant Supervisor were bathing in a creek when two female co-workers walked by on a trail. Complainant asserts that he and the Assistant Supervisor had told their colleagues they were going to the stream to bathe. He alleges that one of the co-workers (C1) stopped and looked at him when he got out of the creek to dry himself and that the Assistant Supervisor said, "Oh, well" and carried on as if nothing were wrong. Id. Exs. 4 at 10, 5 at 4, 10 at 1.
Complainant complained about the July 14 incident in a letter that he submitted to the Agency Personnel Officer on July 20, 1998. In the letter, Complainant also alleged that his Supervisor (S1) and the Assistant Supervisor harassed him. He asserted that crew members treated him like a child rather than an adult, ordered rather than asked him to do things, rejected his suggestions, and ignored his food preferences even though the crew split grocery costs. He also asserted that, on July 19, S1 told him that the other employees wanted S1 to get rid of Complainant. Id. Ex. 4 at 8-10.
Complainant met with the Agency's Personnel Officer, his second-level supervisor (S2), and the District Ranger (Complainant's fourth-level supervisor) (S4) to discuss his complaint. See id. Exs. 7 at 2, 9 at 2. Complainant asserts that S2 promised to relocate him if he agreed to work with the crew for one more week. Id. Ex. 5 at 4-5. The Forest Supervisor (Complainant's fifth-level supervisor) (S5) states that S2 separated Complainant from the crew and assigned him to duties where S2 could observe Complainant's work habits and interactions with other employees. Id. Ex. 6 at 2.
Complainant alleges that, on July 25, 1998, C1 told him to shut up and mind his own business after he made a suggestion about how to set up a tent for the female employees. He asserts that, because the tent was not set up successfully, the female employees slept in a tent with the male employees and he slept in the cab of a truck. Complainant also alleges that, two days later, C1 told him "to kiss her ass." He asserts that S2 was present on both occasions. Id. Exs. 5 at 5, 10 at 2.
Complainant sustained an on-the-job injury on July 29, 1998, and filed a claim for workers' compensation benefits. By letter dated December 30, 1998, the Office of Workers' Compensation Programs (OWCP) denied Complainant's claim for benefits on the grounds that the medical evidence established that Complainant had been treated and released to regular full-time work on July 30, 1998. Complainant requested a hearing on his claim and, on October 12, 1999, the Hearing Representative remanded his case for further development of the record.1 Id. Exs. 13 at 17-22, 77, 82, 86.
When Complainant returned to work on August 4, 1998, S2 brought him to an Agency office to meet with his third-level supervisor (S3). Id. Ex. 5 at 6-7. The supervisors gave him a July 31, 1998, letter terminating Complainant's employment effective August 5, 1998. The letter stated that, although Complainant was a hard worker, the Agency was firing him because of his "inability to work with the trails crew in a crew environment in a remote area." Id. Ex. 15. The letter also stated that the Agency had discovered that Complainant had "failed to list several convictions [and]/or parole or probations" on his application form and that falsification of his application was grounds for termination. Id. An August 3, 1998, SF-50 Notice of Personnel Action lists "performance" as the reason for the termination. Id. Ex. 12 at 11.
In his June 10, 1998, application for employment, Complainant checked "No" in response to the following questions:
1. Have you ever been convicted of, or forfeited collateral for, any felony violation?
2. Have you ever been convicted of, or forfeited collateral for, any firearms or explosives violation?
3. During the last 10 years have you forfeited collateral, been convicted, been imprisoned, been on probation, or been on parole?
Id. Ex. 12 at 4.
Complainant denies that he falsified his application. He asserts:
I was falsely accused of being convicted of felony crime in the court in Salt Lake City, Utah; however, after I had informed them that this information was factually false, they [adamantly] refused to conduct a comprehensive and thorough factual investigation and only conducted a brief [cursory] investigation that was totally inadequate and ineffective.
Id. Ex. 10 at 2.
Complainant alleges that 22-year-old S1, the Assistant Supervisor, and his co-workers played childish games with him and treated him disrespectfully. He also alleges that he was required to perform more work than his co-workers performed and was treated as if he were a lower-graded employee. According to Complainant, S1 admonished him for obtaining a cigarette from a civilian visitor and "intentionally refused on numerous occasions to show the appropriate and proper respect to [Complainant] as an older person." He asserts that he treated his colleagues thoughtfully and with consideration but they did not demonstrate the same level of respect for him. Complainant states, "At no time have I ever showed a hostile temper or violent conduct or threatening behavior." Id. Exs. 5 at 7, 10 at 1, 3.
S2 told the EEO Investigator that, based on his observations, he believed that Complainant was treated with the same respect as the other members of the crew. With respect to the July 14, 1998, incident, S2 stated that the Assistant Supervisor told him that the female employees had been walking toward the creek where Complainant and the Assistant Supervisor were bathing. The employees stopped, turned, and walked up the hill away from the creek when they saw Complainant and the Assistant Supervisor. According to S2, C1 "evidently did not react as fast as [the other employee] in turning away." S2 stated that he was told to fire Complainant because Complainant had lied on his application.
S4 told the EEO Investigator that she discussed Complainant's concerns about disrespectful treatment with Complainant and S1. She stated that Complainant believed he should receive preferential treatment because of his age, thought other employees should follow his suggestions because he was older, and complained that crew members did not include him in activities during non-work hours. She also stated that she explained her expectations of a supervisor-subordinate relationship to Complainant and, after talking to S1, concluded that S1 had acted appropriately. Id. Ex. 7 at 2-3.
In addition, S4 told the EEO Investigator that Complainant "frequently broke into periods of sobbing and then abruptly snapped out of it" during the two hours that she spoke with Complainant. She asserted that Complainant discussed personal matters as well as his concerns about discrimination. S4 stated:
The behavior that I observed in [Complainant] led me to conclude that his coworkers might have reacted with caution and fear and I was concerned about placing them in a setting where they might feel threatened. I was concerned about [Complainant's] suitability for working on a crew in a backcountry setting based on his emotional state, his feelings of persecution by coworkers and his hostility toward his supervisor and coworkers, and his reluctance to follow instructions from a younger supervisor.
S4 also stated that S1 and S2 described Complainant as a hard worker. Id. at 3-5.
In response to the EEO Investigator's question about the July 14 incident, S5 stated that other members of Complainant's crew said that the incident did not happen the way Complainant described. She asserted that "other members of his crew said that he was hard to get along with, that he had a volatile temper, and that they were concerned about their personal safety." She did not identify the crew members, discuss their descriptions of the incident, explain their safety concerns, or cite specific instances when Complainant lost his temper. Id. Ex. 6 at 2.
S5 asserted that Complainant exhibited threatening behavior at the camp site and with the Personnel Officer. "Consequently, we reviewed his employment application to determine if there was something we had overlooked, something in his employment background. Upon further scrutiny, we learned that he had failed to report felony convictions and forfeiture of collateral." S5 did not describe the allegedly threatening behavior. Id.
In her affidavit, the Personnel Officer stated that she, S2, and S4 met with Complainant to discuss his complaints. According to the Personnel Officer, Complainant repeatedly said that he did not take orders well from someone half his age. She stated that S2 and S4 explained the chain of command to Complainant. Id. Ex. 9 at 2.
The Personnel Officer also stated that Complainant's termination was based on the reasons listed in the termination letter. She claimed that meetings with supervisors and co-workers showed that Complainant "had an uncontrollable temper." In addition, the Personnel Officer asserted that crew members felt they could not work with Complainant in remote areas. She also asserted that she "personally felt very threatened by his erratic behavior in [their] first meeting" and told S5 that she would not meet again with Complainant without a third person present. The Personnel Officer did not cite any specific actions by Complainant or otherwise describe Complainant's allegedly erratic behavior. Id. at 3.
Further, the Personnel Officer noted that falsification of an employment application is a valid reason for termination. She also noted that Complainant had stated on his Application for Federal Employment and Declaration for Federal Employment that he had no convictions, imprisonment, probation, or parole within in the previous 10 years. According to the Personnel Officer, "A pre-employment check revealed various charges and convictions stemming back to 1975 through September of 1991." She asserted that "[t]he information revealed he was a 'multi-state' offender" and that "[c]harges and convictions ranged from" eight types of offenses. She did not identify the convictions or the dates on which they occurred. Id.
In a September 6, 2000, handwritten note to the EEO Investigator, the Personnel Officer stated that she had a confidential file with a "detailed law enforcement record check" on Complainant that "consists of several pages of arrests, convictions, probation [and] loss of drivers license stemming from incidents over a number of years. Charges range from [three types of offenses] to more serious charges." She did not identify the convictions, the probation matters, or their dates. Id. Ex. 18 at 2.
The EEO Investigator did not interview S1, the Assistant Supervisor, or C1. Agency officials told the Investigator that the employees' contact information was not available because they were seasonal employees whose official personnel folders had been sent to storage. The EEO Counselor did not interview S1 or the Assistant Supervisor because Agency officials said it would be an invasion of privacy to provide their telephone numbers to the Counselor. ROI at 2; id. Ex. 4 at 3.
Complainant told the EEO Counselor that he believed the Agency had discriminated against him on the bases of national origin, age, and reprisal and had subjected him to sexual harassment. Id. Ex. 4 at 2. On January 30, 1999, Complainant filed a formal EEO complaint alleging that the Agency had harassed and discriminated against him on the bases of sex (male), national origin (Hispanic/Mexican-American), and age (42) when2:
1. his supervisors spoke to him in a disrespectful and demeaning manner throughout his employment;
2. the Agency failed to take action when female co-workers stared at him while he and a male co-worker were bathing in a creek on July 14, 1998;
3. the Agency terminated his employment on August 4, 1998; and
4. the Agency lied about his July 29, 1998, on-the-job injury so his workers' compensation claim would be denied.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final agency decision (FAD), the Agency found that the July 14, 1998, incident did not constitute sexual harassment. Assuming that the incident occurred as Complainant described, the Agency concluded that C1's conduct was not so severe or pervasive as to constitute sexual harassment. The Agency noted that Complainant had not specified the length of time C1 remained at the site and that the incident appeared to be isolated. FAD at 7-8.
The Agency also found that Complainant had not been subjected to harassment based on sex, national origin, or age. In that regard, the Agency concluded that Complainant's assertion that S1 and the Assistant Supervisor did not treat him with the respect someone his age deserved was insufficient to establish that discriminatory animus motivated their actions. Similarly, the Agency concluded that Complainant had not shown that discrimination motivated S1 to admonish Complainant for obtaining a cigarette from a visitor. The Agency also concluded that C1's comments, although unprofessional, were not harassing and that neither her comments nor her conduct on July 14, 1998, was based on Complainant's sex, national origin, or age. In addition, the Agency found that Complainant had not provided evidence to support his claim that he had been required to perform more work than other employees. Further, the Agency concluded that S2's recommendation that OWCP deny Complainant's workers' compensation claim "had minimal bearing on the outcome of" the claim and did not constitute an act of harassment. Id. at 9-10.
Finally, the Agency found that Complainant's termination was motivated in part by his prior EEO activity. The Agency determined that, although Complainant had not listed reprisal as a basis in his formal EEO complaint, the record supported a retaliation analysis. Noting that Complainant was fired only two weeks after he complained of harassment, the Agency found that a causal link existed between his harassment complaint and the termination. The Agency pointed out that, although S4, S5, and the Personnel Officer stated they were concerned about Complainant's behavior, there was no documentation of such concerns before the harassment complaint. Similarly, there was no documentation to support the assertion that the Personnel Officer had told S5 that she did not want to meet with Complainant without a third person present. The Agency also pointed out that the record did contain any corroborating statements from S1 and the Assistant Supervisor, who supervised Complainant and were more familiar with his behavior. The Agency concluded that, given the lack of documentation concerning Complainant's alleged behavior prior to his harassment complaint, "the ultimate decision to review the Complainant's personnel record as a means to terminate the Complainant was affected in part by the Complainant's EEO activity." Id. at 10-11.
Applying a mixed-motive analysis, the Agency found that it properly terminated Complainant's employment "for nondisclosure of his criminal past" and falsifying his application. The Agency stated,
Despite the Complainant's assertion that management relied on a factually false record with respect to a felony crime in Salt Lake City, he does not negate management's assertion that he falsified his employment record with respect to his criminal convictions by offering evidence that would demonstrate that the listed criminal charges/convictions were in fact erroneous, misdemeanors, and/or outside of the ten year time span.
Id. at 12.
The Agency also stated that the "USDA Table of Disciplinary Penalties"3 provides that falsification of an employment application should result in termination if it would have adversely affected the employee's selection and that other, non-disciplinary action should occur if an inaccuracy was unintentional. Because Complainant had "not provided evidence to demonstrate that his entry or statement was unintentional or that the identified charge/convictions were erroneous," the Agency found "that management's actions did not deviate from the standard practice of terminating an employee where it is found that his employment application contains falsified information." Having found that the termination was justified based on the falsification of Complainant's application, the Agency determined that Complainant was entitled only to declaratory and injunctive relief and attorney's fees and costs. Id.
CONTENTIONS ON APPEAL
The parties raise no arguments on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (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
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 [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 or the ADEA 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 based on sex, national origin, age, or reprisal, Complainant must show that: (1) he is a member of the statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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).
In this case, the record does not support a finding that the Agency subjected Complainant to conduct that was so severe or pervasive as to create a hostile work environment. Further, the evidence does not establish that the incidents alleged by Complainant occurred because of his sex, national origin, or age.
First, the incident at the creek did not constitute sexual harassment. In the absence of statements from the Assistant Supervisor and C1, we conclude that the incident occurred as Complainant described it. We find, however, that this isolated incident was not sufficiently severe to create a hostile work environment. Given that C1's conduct occurred in a recreation area where employees lived and worked in primitive conditions, it would not have substantially affected the work environment of a reasonable person in Complainant's position (i.e., a person bathing in a creek near a trail). Further, even when viewed in light of her subsequent comments to Complainant, C1's conduct did not rise to the level of harassment. C1's conduct and comments, although crass and unprofessional, were not sufficiently severe or pervasive to create a hostile work environment.
Similarly, although Complainant alleges that his younger supervisors and co-workers treated him disrespectfully, the record does not demonstrate that their conduct constituted harassment. As Complainant's supervisor, S1 had authority to direct Complainant to perform tasks and to admonish Complainant for obtaining a cigarette from a civilian visitor. Complainant may have believed that he deserved a higher level of respect as an older individual, but his colleagues' failure to follow his suggestions or to defer to his food preferences does not amount to harassment.
In addition, the record does not establish that the Agency's actions concerning Complainant's workers' compensation claim were acts of harassment. There is no evidence that discriminatory animus motivated S2's statement to OWCP or the Agency's mishandling of Form CA-1.
Finally, even viewing all of Complainant's allegations as a whole, we find that the Agency's actions, taken together, were not sufficiently severe or pervasive to create a hostile work environment. Accordingly, we find that the Agency properly found that Complainant had not been subjected to harassment on the bases of sex, national origin, or age.
Termination
The Agency found that Complainant's termination was motivated in part by reprisal. FAD at 11-12. It noted that, although Complainant did not list reprisal as a basis in his formal EEO complaint, the record supported a retaliation analysis. Id. at 11 n.2.
The Commission has held that a complainant may allege discrimination on all applicable bases and may amend his or her complaint at any time to add or delete bases without changing the identity of the claim. Drago v. U.S. Postal Serv., EEOC Request No. 05940563 (Jan. 19, 1995); accord Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). The crucial element in a charge of discrimination is the set of facts alleged therein, not the complainant's conclusions concerning the agency's motivation. Mahmood v. Dep't of Defense, EEOC Appeal No. 01941890 (May 2, 1994).
In this case, Complainant alleged to the EEO Investigator and the EEO Counselor that the Agency had retaliated against him for protected activity when it fired him. ROI at 2; id. Ex. 4 at 2. Even though Complainant did not list reprisal as a basis in his formal complaint, a fair reading of the record in its totality reflects that Complainant alleged that the Agency had discriminated against him on the basis of reprisal. Accordingly, we analyze the reprisal claim.
The anti-retaliation provision of Title VII protects those who oppose discriminatory employment practices as well as those who participate in the EEO process. A complaint or protest about alleged employment discrimination, including harassment on a protected basis, constitutes opposition to discrimination. A person is protected against retaliation if he or she had a good-faith belief that the challenged practice was unlawful, regardless of whether the practice ultimately is found to be unlawful. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8-III.B. (May 20, 1998) (EEOC Compliance Manual on Retaliation).
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. v Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. 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).
In this case, Complainant engaged in protected activity under Title VII on July 20, 1998, when he submitted a letter alleging that he had been subjected to sexual harassment and harassment by S1, the Assistant Supervisor, and his co-workers. Agency officials, including the Personnel Officer, S2, S4, and S5, were aware of Complainant's harassment allegations. The Agency terminated Complainant's employment on August 4, 1998, only 15 days after his protected activity. This close temporal proximity and the officials' decision to review Complainant's employment application only after he complained of harassment establishes a nexus between Complainant's protected activity and his termination.
The termination letter cited Complainant's inability to work with the trails crew in a remote environment as a reason for his dismissal. The only documentary evidence concerning Complainant's interactions with the trails crew, however, is his July 20, 1998, letter that his supervisors and co-workers were harassing him. Although S5 asserted that Agency officials reviewed Complainant's application because Complainant exhibited threatening behavior at the camp site and with the Personnel Officer, there is no documentary evidence of such behavior. The record contains no statements from S1, the Assistant Supervisor, or Complainant's co-workers concerning his alleged behavior. S2, who personally observed Complainant's interactions with the crew, did not describe any inappropriate behavior by Complainant.
Further, as the FAD noted, there is no evidence that anyone expressed concern about Complainant's behavior prior to his harassment complaint. The Personnel Officer asserted that Complainant "had an uncontrollable temper" and she felt threatened by Complainant's "erratic behavior," but she did not cite any specific instances when Complainant lost his temper and did not describe the behavior she considered to be erratic. The only specific description of Complainant's behavior was S4's statement that Complainant "frequently broke into periods of sobbing and then abruptly snapped out of it" when he met with her to discuss his harassment allegations. There is no explanation why S4 considered this to be threatening. Further, her assertion that other employees "might have reacted with caution or fear" or "might feel threatened" does not address whether Complainant's co-workers in fact felt threatened or whether he in fact engaged in threatening behavior.
Given the lack of evidence of threatening or objectionable behavior by Complainant, we find that Complainant's protected EEO activity, rather than his alleged inability to work with the trails crew, motivated his termination. Accordingly, we find that the Agency discriminated against Complainant on the basis of reprisal when it terminated his employment.
In the FAD, the Agency concluded that Complainant's termination was partly motivated by his protected activity but that the Agency had properly fired Complainant for falsifying his employment application. Title VII cases such as this, in which there is a finding that discrimination was one of multiple motivating factors for an employment action, i.e., that the Agency acted on both lawful and unlawful reasons, are known as "mixed-motive" cases. See EEOC Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory ("Revised Enforcement Guidance"), EEO Notice No.915.002, at � III.B.2 (July 14, 1992) (as amended Jan. 16, 2009). Prior to the Civil Rights Act of 1991 (CRA), an employer could avoid liability in mixed-motive cases if it could show that it would have made the same decision even absent the unlawful factor. See Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989). However, Section 107 of the CRA effectively overruled the part of Price Waterhouse that allowed an employer to avoid liability in this way. 42 U.S.C. � 2000e-2(m); see also EEOC Compliance Manual on Retaliation � 8-II.E.1, n.45 (Commission concludes that Section 107 applies to retaliation claims); Revised Enforcement Guidance at � III.B.2, n.18 (same). A Complainant is not required to present direct evidence of discrimination to prove that discrimination was a motivating factor for the employment practice at issue in mixed-motive cases. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003). Once a Complainant demonstrates that discrimination was a motivating factor in the Agency's action, the burden shifts to the Agency to prove that it would have taken the same action even if it had not considered the discriminatory factor. If the Agency is able to make this demonstration, the Complainant is not entitled to personal relief (i.e., damages, reinstatement, hiring, promotion, or back pay) but may be entitled to declaratory relief, injunctive relief, attorney's fees, and/or costs. 29 U.S.C. � 2000-5(g)(2)(B) (remedy limited where an individual proves a mixed-motive violation "and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor"); id. � 2000e(m) ("term 'demonstrates' means meets the burdens of production and persuasion"); see also De Armas v. Dep't of the Treasury, EEOC Appeal No. 0720060085 (July 25, 2007); Walker v. Social Security Admin., EEOC Request No. 05980504 (Apr. 8, 1999).
The FAD found that Complainant was entitled only to injunctive and declaratory relief because he had "not negate[d] management's assertion that he falsified his employment record" and had "not provided evidence to demonstrate that his [application] entry or statement was unintentional." FAD at 12. In so finding, the Agency erroneously placed the burden of proof on Complainant. Once it is established that reprisal was a motivating factor in the Agency's action, the Agency has the burden of demonstrating that it would have taken the same action absent the impermissible motive. 42 U.S.C. � 2000e-5(g)(2)(B). The Agency has not met that burden.
The Agency asserts that Complainant's alleged falsification of his employment application was a basis for the termination, but the Agency has produced no documentary evidence to support its assertion. Although the Personnel Officer stated that she has a confidential file reflecting "several pages of arrests, convictions, probation [and] loss of drivers license stemming from incidents over a number of years," the file is not part of the record.
Moreover, the Agency has not identified the alleged falsification at issue. The termination letter stated that Complainant had failed to disclose "several convictions [and]/or parole or probations," but it did not identify them. Similarly, S5 did not identify the alleged "felony convictions and forfeiture of collateral" to which she referred. Further, although the application did not inquire about arrests, the Personnel Officer referred to "charges and convictions" for eight types of offenses from 1975 through September 1991 and "arrests, convictions, probation [and] loss of drivers license." She did not distinguish between charges and convictions, did not identify the felony convictions, and did not provide the dates of the alleged offenses. Complainant asserts that the Agency falsely accused him of having a felony conviction in Utah, but the Agency has not made that accusation in the record.
We cannot say, based on the record before us, that Complainant in fact falsified his employment application. The Agency's vague and varying references to Complainant's alleged criminal record do not satisfy the Agency's burden of proof. We find that Complainant's termination was motivated by reprisal for his protected EEO activity and that the Agency has not demonstrated that it would have terminated Complainant's employment in the absence of the impermissible motivating factor. Accordingly, we find that Complainant is entitled to full, make-whole relief.
Having found that the Agency discriminated against Complainant on the basis of reprisal in violation of Title VII, we need not determine whether it discriminated against him on the bases of sex, national origin, or age when it terminated his employment.
CONCLUSION
Based on a thorough review of the record, we AFFIRM in part and REVERSE in part the Agency's final decision and REMAND the complaint for further processing in accordance with our Order below.
ORDER (D0610)
Within sixty (60) days of the date this decision becomes final, the Agency is so ORDERED:
1) The Agency shall pay Complainant back pay from August 5, 1998, until the date his seasonal employment would have ended absent the discrimination. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
2) The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the Agency's discrimination based on Complainant's protected activity, and shall afford Complainant an opportunity to establish a causal relationship between the discrimination and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages he is entitled to as a result of the discrimination which resulted from his protected activity, and shall provide all relevant information requested by the Agency. The Agency shall issue a new agency decision awarding compensatory damages to Complainant within sixty (60) days of the date this decision becomes final.
3) The Agency shall expunge from Complainant's OPF all documentation connected to his August 1998 termination and shall expunge from all official Agency records any reference to Complainant's termination within 60 calendar days after this decision becomes final.
4) The Agency shall provide eight (8) hours of EEO training to the involved management officials regarding their responsibilities under EEO laws.
5) The Agency shall consider taking appropriate disciplinary action against management officials responsible for the discrimination 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 a notice in accordance with 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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Forest Service, Region 2, Powder River Ranger District (formerly the Buffalo and Tensleep Ranger Districts) facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period.
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.
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 (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).
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 (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
September 6, 2012
Date
1 Complainant alleges that he sustained the injury when he and S2 were lifting a rock and S2 let his side drop. ROI Ex. 5 at 5. He also alleges that S2 intentionally failed to file an accident report about Complainant's on-the-job injury. Id. Ex. 10 at 2. In an August 14, 1998, submission to OWCP, the Agency stated that a Form CA-1 Notice of Traumatic Injury and Claim for Compensation was not completed at the time of Complainant's injury because of "the excitement about getting an injured employee to the hospital" and the circumstances surrounding the termination of Complainant's employment. Id. Ex. 13 at 99. The Agency transmitted S2's statement concerning the incident to OWCP on June 3, 1999. Id. at 60-62. In the statement, S2 stated that Complainant complained that his back hurt, S2 told him to rest and "continued working about 25 feet away," a doctor on the scene said nothing serious was wrong, Complainant chose to wait until the next morning for a possible flight out of the area, Complainant "seemed in fair shape" the next morning, S2 drove Complainant to a hospital, the attending doctor "put him on no duty until Monday," and S2 gave Complainant permission to use earned credit hours for Monday. Id. S2 told the EEO Investigator that he recalled signing "some kind of document" concerning Complainant's OWCP claim and S2's "recommendation would have been to disapprove [Complainant's] compensation claim." Id. Ex. 8 at 2.
2 Although Complainant did not list reprisal as a basis in his formal EEO complaint, he alleged to the EEO Counselor that the Agency had fired him in retaliation for his complaints about harassment. ROI Ex. 4 at 2. He also alleged to the EEO Investigator that his termination was retaliatory. ROI at 2.
3 As the FAD notes, the cited document is not part of the record before us.
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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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