U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * DEVON H.,1 COMPLAINANT,v.JEH JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (TRANSPORTATION SECURITY ADMINISTRATION), AGENCY.

Equal Employment Opportunity CommissionDec 18, 2015
0120131649 (E.E.O.C. Dec. 18, 2015)

0120131649

12-18-2015

U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * DEVON H.,1 COMPLAINANT, v. JEH JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (TRANSPORTATION SECURITY ADMINISTRATION), AGENCY.


U.S. Equal Employment Opportunity Commission (E.E.O.C.)

Office of Federal Operations

* * * DEVON H.,1 COMPLAINANT,

v.

JEH JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (TRANSPORTATION SECURITY ADMINISTRATION), AGENCY.

Appeal Nos. 0120131649, 0120131684

Hearing Nos. 430-2010-00295X, 430-2009-00434X

Agency Nos. HS-TSA-01276-2010, HS-08-TSA-008579

December 18, 2015

DECISION

Complainant filed an appeal from the Agency's February 15, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 whether the Agency erred when it did not respond to Complainant's motion to amend his complaint, and whether Complainant proved that he was subjected to reprisal because of his previous EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal (FAM) within the Federal Air Marshal Service (FAMS) at the Agency's Charlotte, North Carolina Field Office. Complainant has been a FAM since June 2002. During the beginning of the relevant time period, Complainant was supervised by the Supervisory Federal Air Marshal (SFAM1). In March 2009, an Assistant to the Special Agent in Charge (ATSAC) became Complainant's direct supervisor (S1). S1 was supervised by the Assistant Special Agent in Charge (ASAC), and the Special Agent in Charge (SAC) was Complainant's third-line supervisor.

Agency No. HS-08-TSA-008579

On December 10, 2008, Complainant filed an EEO complaint (Agency No. HS-08-TSA-008579) in which he alleged that the Agency harassed and discriminated against him on the basis of reprisal because of previous EEO activity arising under the Rehabilitation Act when:

1. In 2007, management gave Complainant a low ranking and rating during the J-Band promotion process;

2. On or before April 18, 2008, through September 5, 2008, when the J-Band rating and ranking process ended, management did not assign Complainant to an Acting ATSAC position;

3. On an unspecified date, after Complainant submitted his application for the 2008 J-Band rating and ranking process, an ATSAC (SFAM1) stated, "Who him, no, not him, he would be the last person in this office promoted;"

4. On an unspecified date in 2008, a Federal Air Marshal (FAM1) informed Complainant that SFAM1 had entered into a bet over the outcome of Complainant's previously-filed EEO complaint;

5. On September 5, 2008, management gave Complainant a low rating and ranking score for the 2008 J-Band promotion process, while other employees were given higher ratings and rankings;

6. On or about September 19, 2008, after Complainant commenced the EEO complaint process, Complainant overheard an ATSAC tell a Charlotte Field Office civilian that "they" were going to fire him; and

7. On an unspecified date, other FAMs informed Complainant that the Special Agent in Charge (SAC) consulted with other Charlotte Field Office supervisory staff, including an ATSAC Complainant alleged retaliated against him, concerning the J-Band ratings of FAMs assigned to the Charlotte Field Office.

Agency No. HS-TSA-01276-2010

On August 13, 2010, Complainant filed another EEO complaint (Agency No. HS-TSA-01276-2010) in which he alleged that the Agency harassed and discriminated against him in reprisal for previous EEO activity under the Rehabilitation Act when:

8. On May 20, 2010, he learned that he was not selected to act as ATSAC;

9. On May 21, 2010, after Complainant informed his supervisor of his intent to file an EEO complaint, the SAC leaped out of his chair, reached toward Complainant, began shouting at him, told Complainant not to threaten him, and said that Complainant's "communication skills suck." Complainant felt physically threatened and reported this incident to management as an assault, but no action was taken;

10. On May 21, 2010, Complainant's supervisor (SFAM1) told some of his coworkers that Complainant would not be promoted in the future because he is now "outside the circle of trust;" and

11. On or around May 28, 2010, Complainant learned that he was under an internal investigation.

In an investigative statement, Complainant stated that he believed that he was subjected to retaliation because of the manner in which the J-Band ratings were done at the Charlotte office, and because he was placed at the bottom of the ratings in 2007 and 2008. Complainant stated that in 2007, he received a score of 80 out of 100 from the Charlotte SAC, and an independent panel Headquarters score of 83.3. Complainant further stated that he ranked 834 out of 844 candidates nationwide in 2007.

Regarding claim 1, the Director of the Business Management Office (BMO Director) stated that in 2007, the SAC was responsible for 40 percent of applicants' J-Band scores, and an independent panel composed of three individuals was responsible for 60 percent of the score. She stated that ranked candidates were eligible to apply for J-Band vacancies throughout the year after receiving a final score from the independent panel and SAC. The BMO Director further stated that independent panelists must recuse themselves from rating individuals from their field offices, or if they have any prior relationship with an applicant to ensure a fair and unbiased process.

The former SAC2 stated that, during the relevant time period, he was aware of Complainant's previous EEO activity, and the former SAC was the subject of several of Complainant's EEO complaints. The former SAC further stated that, during the 2007 J-Band rating and ranking process, all FAMs were rated against the same standards by their immediate supervisors. He stated that that he then reviewed and approved the ratings/rankings as the recommending official. The former SAC further stated that Complainant was in the lower third of evaluations. The former SAC stated that Complainant's immediate supervisors and the Assistant Supervisory Air Marshal in Charge (ASAC) were included in the evaluation process, and it is normal for the SAC to consult with supervisory staff concerning J-Band ratings and rankings. He stated that two Charlotte employees were promoted to J-Band positions as a result of the 2007 ratings.

S1 stated that he was aware of Complainant's previous EEO activity during the relevant time period. He stated that as one of the field office supervisors, he was a member of the J-Band review panel that met to review and provide input on Charlotte J-Band candidates. He stated that the field office panel provided rankings to the former SAC. S1 stated that in 2007, the former SAC was responsible for 40 percent of the J-Band score, whereas the independent panel was responsible for 60 percent of the total score. S1 stated that it is normal and standard practice for a SAC to consult with supervisory staff concerning J-Band ratings and rankings.

Regarding claim 2, Complainant stated that employees who were appointed Acting ATSAC were given points for having been Acting ATSACs, and such points were given by both the SAC and panel. Complainant stated that at least five FAMs in Charlotte were appointed Acting ATSAC, and two FAMs who were appointed Acting ATSAC were promoted to the J-Band level based on the 2007 list. Complainant further stated that he was scored lower and not promoted to Acting ATSAC to ensure that he received a low score on the J-Band ranking. Complainant stated that he has flown foreign assignments as part of a three-person team, but when he asked about being assigned Acting ATSAC, he was told the Agency could not pull him from the foreign assignment. Complainant stated that no one in Charlotte on the 2008 J-Band list had been promoted.

An ATSAC stated that Complainant was not assigned as Acting ATSAC during the period July 2008 through February 2009, when she was his supervisor. The ATSAC further stated that during the time she supervised Complainant, she was out of the office once, and Complainant was not available or selected during her absence because he was assigned to flight scheduling during this time.

The SAC stated that for Acting ATSAC assignments, supervisors identify the period of time when they will be away from the office and identify FAMs within their squads to serve in this temporary capacity. The SAC stated that the Acting ATSAC assignment was not implemented until March 2008, and all FAMs could not be appointed Acting ATSAC within the compressed period of time Complainant claimed he was denied this assignment. The SAC stated that Complainant was not excluded from the process, but like most of his colleagues, he could expect to serve as Acting ATSAC within a one-year period. The SAC further stated that there was an effort to select Complainant for one of the development assignments, but at that time, selecting Complainant was problematic because of the timing and rigidity of Complainant's mission flight schedule. The SAC also stated that Complainant was scheduled to serve as Acting ATSAC during the week of June 15, 2009.

SFAM1 stated that the position of Acting ATAC was first implemented in the Charlotte Field Office in March 2008. SFAM1 stated that this position only becomes available during the irregular and infrequent absences of a regular ATSAC. SFAM1 further stated that he has appointed two FAMs to Acting ATSAC based on his opinion of who had an interest and aptitude for management, and Complainant had not yet been appointed merely because those jobs are available only sporadically. SFAM1 stated that both FAMs he appointed served as Acting ATSAC for four weeks. SFAM1 stated that Complainant can expect to be named Acting ATSAC at some point in the future, although it is difficult to predict when this will occur.

Regarding claim 3, Complainant stated that he does not know if the conversation in which SFAM1 said "he would be the last person in this office to be promoted" was about him, but he believed it was about him because of the difference between his 2007 and 2008 panel scores. SFAM1 stated that he has no recollection of saying, "Who him, no, not him; he would be the last person in this office promoted."

Regarding claim 4, Complainant stated that he heard from a FAM (FAM1) that another FAM (FAM2) and SFAM1 were betting on the outcome of his EEO complaint. He stated that when he confronted FAM2, FAM2 admitted that this occurred, and claimed that SFAM1 refused to pay him when Complainant won a previous complaint because the Agency was appealing the decision and SFAM1 did not agree with the decision.

FAM1 stated that he was walking by SFAM1's office and heard him and FAM2 talking about Complainant's EEO complaint. FAM1 further stated that FAM2 then bet that Complainant would win his case, and SFAM1 bet he would not win.

SFAM1 stated that he believed that he told FAM2 that he believed that a former SAC would not lose any legal action. He stated that any conversation he may have had with FAM2 would have been a general conversation, and not a conversation specifically about Complainant. He stated that it is likely true that he used a phrase similar to, "I bet you he will not lose any lawsuit." SFAM1 further stated that he recalled a second conversation wherein FAM2 called him at his home one day and advised him that Complainant had won a lawsuit. SFAM1 also stated that any conversation he may had had with any FAM would have been initiated by the FAM, and at no time did he ever engage in a wager regarding Complainant's EEO activity.

FAM2 stated that during the relevant time period, he had heard from Complainant and other coworkers that Complainant had filed numerous EEO complaints against the Agency. He further stated that he and SFAM1 had a private conservation in a "jovial manner" in the Operations Office. He stated that after discussing baseball, he said that there is no way that anyone can get along around the office because too many employees are ready to file lawsuits. FAM2 stated there were rumors that many employees had filed suit against management. FAM2 further stated that he said, "If you throw that much shit in a barn, something is gonna stick." FAM2 stated that SFAM1 then said that the former SAC would not lose any lawsuits filed against him, and FAM2 asked SFAM1 what he would like to "put on it." FAM2 further stated that SFAM1 said that they could not bet on the matter, but they eventually agreed to bet a beer about the former SAC winning the lawsuits. FAM2 also stated that this conversation was not based on any single EEO complaint by Complainant, but he recalled that an email was sent by a FAM to congratulate Complainant because he won a case against management.

Regarding claims 5 and 7, Complainant stated that he understood that the SAC generated his own rating criteria and allowed supervisors to make their own ratings and provide information to him. Complainant further stated that the SAC then combined management's ratings into his ratings to come up with a final rating, which Complainant did not believe was permitted under Agency policy. Complainant stated that there was supposed to be independent SAC scores and panel scores based on documents and records, and the SAC score should only be the SAC's opinion, not others' opinions.

The SAC stated that he was aware of Complainant's previous EEO activity during the relevant time period. The SAC further stated that all managers in the Charlotte Field Office normally meet to collectively discuss and evaluate the promotion potential of each employee annually, which ensures that the assessment of each employee is thorough. The SAC stated that supervisors and managers then make recommendations of field office scores for each employee, and then he reviews the scores. The SAC stated that, in this case, he concurred with management's recommendation, and each employee's written application was then forwarded to the independent panel that considered each employee's promotion potential. The SAC further stated that the independent panel's score was then combined with the field office score, which resulted in a final rating and ranking. The SAC stated that Complainant's score from the Field Office was higher than the rating he received from the independent panel. The SAC also stated that following the assignment of ratings and rankings to FAMs, the process shifted to Headquarters as promotional vacancies are periodically announced, and interested FAMs bid on positions of interest to them. The SAC stated that the SACs review and assess the lists of potential candidates and recommend approximately five candidates whom they deem to be in the "top five," and those recommendations are forwarded to FAM Headquarters, where a panel of Deputy Assistant Directors convenes to select the best candidate.

The SAC further stated that with respect to the evaluation process for FAM promotion, there are numerous ways in which any FAM seeking promotion can amplify their portfolios, in addition to functioning in an acting capacity. The SAC stated that all FAMs are encouraged to seek other assignments of longer durations than an acting capacity, such as assignments as Operations Officers, Training Officers, and representatives to Joint Terrorism Task Forces. He stated that these longer duration assignments demonstrate FAMs' capacity in assignments other than the core functionality of flying missions over the course of one to three years. The SAC stated that he counseled Complaint about this organizational expectation, but Complainant refused to request consideration for these assignments, which limited his level of competitiveness and J-Band scores/rankings.

S1 stated that Complainant's 2008 J-Band (Field Office) rating was 31 out of a possible 50 points, but he did not know the score Complainant received from the national independent panel. S1 further stated that he provided his opinion about Complainant to the SAC, who was responsible for giving each FAM a field office score.

SFAM1 stated that in 2008, the Charlotte Field Office was responsible for 50 percent of Complainant's J-Band score. He stated that Complainant was rated on a scale of one to ten in five categories, with a possible maximum score of 50. SFAM1 stated that a national panel that rates applicants nationwide rated Complainant in the same manner, so that Complainant could earn up to 100 points. He stated that Complainant scored 31 out of 50 from the Field Office, and the "blind" national panel gave Complainant 17 points out of 50. Complainant ranked 644 out of 655 candidates nationwide in 2008. The BMO Director stated that the 2008 national panel consisted of three individuals.

Regarding claim 6, Complainant stated that a Trainer told S1 that Complainant was one of the better FAMs at the Charlotte office, but S1 said that it was a shame because the Agency was going to fire him. S1 stated that he has never discussed the firing of anyone with or in the presence of the Trainer. The Trainer stated that he had no knowledge of S1 telling him that the Agency was going to fire Complainant.

Regarding claim 8, Complainant stated that he qualified for an Acting ATSAC position available in May 2010 because he was listed as eligible for promotion and had served as Acting ATSAC for his "squad" in 2009. Complainant further stated that the SAC notified him on May 20, 2010, that he had selected a coworker (C1) for the Acting ATSAC position when an ATSAC was temporarily reassigned to Visible Intermodal Prevention and Response (VIPR).

The SAC stated that ATSACs taking time off for at least a week may select a FAM to act in their stead and during their absence, and ATSACs select from a pool of FAMs participating in the promotion process at the national field office based on FAMs' availability, scheduling limitations, and operational effectiveness. The SAC further stated that when a FAM applies for promotion, Headquarters issues the candidate a component score and nationwide ranking using peer reviews and field managers' evaluations of the FAM based on a national rating system, and the FAM carries that score and ranking for 12 to 18 months. He stated that management does not normally consider FAM scores or ratings when selecting short-term Acting ATSACs, and all FAMs in the promotion process meet minimum eligibility requirements for acting supervisory assignments.

However, the SAC further stated that with respect to the acting position at issue, the Charlotte office had an Acting ATSAC vacancy that needed to be filled for three months, but this position required consistency because the Acting ATSAC would have multiple responsibilities over a three month period. The SAC stated that management decided that it would select the highest-ranked individual under these circumstances. He stated that he chose C1 as Acting ATSAC because he was the highest ranking FAM participating in the promotion process, and C1 acted as ATSAC from June 28, 2010, until September 13, 2010.

Regarding claim 9, Complainant stated that on May 21, 2010, he entered the SAC's office and asked him if he could talk to him about the selection of C1 for the Acting ATSAC assignment for the Red Team. Complainant stated that the SAC responded that he could come into his office and discuss the matter. Complainant stated the SAC was seated at his desk while he stood in front of the desk. Complainant further stated that he then asked the SAC if he could tell him why C1 had been selected as Acting ATSAC for the Red Team, and the SAC leaned forwarded and said, "It's my prerogative." Complainant also stated that he told the SAC that he felt like a second-class citizen and was being treated differently than other FAMs again. Complainant stated that the SAC responded in a loud voice, "I have never treated you differently," and said something about how dare Complainant say "again."

Complainant further stated that he told the SAC that he felt that he needed to file an EEO complaint regarding this matter and was coming to talk to the SAC to find out if there was some reason he was changing the rules for selecting Acting ATSACs. Complainant also stated that he told the SAC that he had provided a sworn statement in his prior EEO complaint that Acting ATSACs would come from their teams. Complainant stated that the SAC then jumped out of his chair, reached across the desk towards him, and began yelling, "Don't you threaten me." Complainant stated that he felt threatened by the SAC's actions, stepped back, put his arms in front of his chest with his open hands facing the SAC, and said, "I am not threatening you, calm down." Complainant further stated that the SAC walked around the desk towards him and said, "Your communication skills suck." Complainant stated that he then told the SAC that this was not going anywhere, and that he was going to file an EEO complaint. Complainant stated that he walked out of the SAC's office and called the Agency's EEO office.

The SAC stated that he did not leap out of his chair, say that Complainant's communication skills sucked, reach toward Complainant, or shout at him during this incident. The SAC further stated that he stood up and walked toward the front door, and Complainant followed him to the door and walked outside. He stated that he did not recall saying anything else to Complainant at that point.

Regarding claim 10, Complainant stated that around 10:00 a.m. on May 21, 2010, the SAC entered SFAM1's office and began speaking with the door open. Complainant stated that he heard SFAM1 tell the SAC, "I feel sorry for him. If he did want to get promoted, it won't happen now." Complainant stated that earlier that morning, SFAM1 had told other FAMs, "Once you get outside the circle of trust, there is no way to get back in."

The SAC stated that he has never heard a supervisor tell employees that Complainant would not be promoted because he was outside the circle of trust. SFAM1 stated that he did not say that Complainant would not be promoted because he is outside the circle of trust. SFAM1 further stated that on May 21, 2010, an employee (C2) made a "playfully critical remark" to him while he had a lighthearted conversation with several people in the office common area. SFAM1 stated that he replied playfully by quoting a line spoken by the actor Robert De Niro in the popular movie, "Meet the Parents." He stated that he said something to C2 like, "Be careful, [C2], once you get out the circle of trust, you can never get back in." SFAM1 stated that as he walked into his office, another FAM continued the conversation by telling another joke with him. SFAM1 further stated that another FAM then asked if he was in the circle of trust, and SFAM1 responded, "You are at the hub of my circle of trust." SFAM1 stated that he did not speak to Complainant during this incident.

A coworker (C2) stated that on May 21, 2010, he heard several FAMs bantering about being in the "inner circle" or "circle of trust." He stated that he did not recall Complainant participating in the conversation, or that the FAMs referred to Complainant. C2 further stated that he has not heard a supervisor tell employees that Complainant would not be promoted because he is outside the circle of trust.

Regarding claim 11, Complainant stated that on May 28, 2010, S1 called him into his office where management was waiting. He stated that management asked him to provide a statement regarding the May 21, 2010, incident in the SAC's office by close of that business day. Complainant stated that S1 said he was completing a Conduct Incident Report (CIR) in response to his alleged misconduct on May 21, 2010. Complainant stated that he provided a sworn statement to S1 and another Agency official that day, and a letter to the Office of Civil Rights on or about May 28, 2010, regarding the investigation.

The SAC stated that he believed that Complainant's actions potentially violated the FAMs code of conduct, and that on May 23, 2010, he submitted a CIR electronically to the Policy and Compliance Unit (PCU). The SAC further stated that FAMS management informed him that PCU initiated an investigation into the May 21, 2010, incident, and an ATSAC (ATSAC1) and a SFAM (SFAM2) conducted an investigation.

ATSAC1 stated that the SAC filed a report that Complainant engaged in unprofessional conduct, and Charlotte managers prepared an Incident Tracking Report (ITR). ATSAC1 further stated that headquarters asked him and SFAM1 to conduct a neutral, fact-finding investigation into the SAC's allegations that Complainant entered his office and became belligerent. ATSAC1 stated that he and SFAM2 submitted a fact-finding report in October 2010, and he understood that it was ultimately decided that no further action would be taken.

ATSAC1 further stated that the fact-finding report noted several inconsistencies in Complainant's statements throughout the investigation. For example, ATSAC1 stated witnesses denied Complainant's July 28, 2010, interview allegation that the SAC chased him down the hall, screamed at him, and disrupted the entire office, and that these claims were not in Complainant's May 21, 2010, immediate report. ATSAC1 stated that he and SFAM2 concluded that Complainant entered the SAC's office, challenged SAC's selection for Acting ATSAC, and the SAC dismissed Complainant from his office.

SFAM2 stated that the investigation was conducted because the SAC alleged that Complainant entered his office to discuss his selection of the acting ATSAC in a hostile, confrontational manner that was outside the bounds of normal professional conduct. SFAM2 further stated that the SAC also said that Complainant told him that he did not treat all employees fairly, which was personally and professionally offensive to the SAC. SFAM2 stated that he and ATSAC1 interviewed approximately 11 witnesses during the investigation and concluded that Complainant provided false and misleading statements during the fact-finding process. Specifically, SFAM2 stated that evidence did not support Complainant's claim that SFAM1 said that he would not get promoted. SFAM2 further stated that Complainant also claimed that office management secretly videotaped the Charlotte office and had a secret recording of the incident, but the investigation revealed that there were no video recordings of the Charlotte office or this incident.

Complainant withdrew Request for a Hearing

After the conclusion of the investigation of these complaints, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing for each complaint.

On August 8, 2011, Complainant submitted a motion to amend EEO complaint Agency Number HS-TSA-01276-2010 to add the following claims:

1. On or about July 28, 2010, the SAC released Complainant's private medical information to two Agency employees who did not have the right to know this information without Complainant's consent; and

2. On or about July 28, 2010, the SAC released Complainant's private medical information by placing it into a written report that was disseminated throughout the Agency and a copy was placed in the Report of Investigation in EEO complaint Agency Number HS- Number HS-TSA-01276-2010.

The AJ convened a hearing on Agency Numbers TSA-01276-2010, HS-10-TSA-001204, HS-08-TSA-008579, and HS-06-TSA-005282. However, on October 28, 2012, Complainant withdrew his requests for a hearing and requested final Agency decisions for Agency Numbers HS-TSA-01276-2010, HS-10-TSA-001204, and HS-08-TSA-008579. Consequently, the AJ dismissed HS-TSA-01276-2010, HS-10-TSA-001204, and HS-08-TSA-008579 and remanded these matters to the Agency for a final decision.3 Hearing Transcript (HT), pp. 519, 520.

Final Agency Decision

On February 15, 2013, the Agency issued a consolidated final decision on Agency Numbers HS-TSA-01276-2010 and HS-08-TSA-008579, pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged. Specifically, the Agency found that the Agency provided legitimate, non-discriminatory explanations for the alleged actions that were not proven to be pretext for unlawful discrimination by Complainant. The Agency further found that the alleged actions were not severe or pervasive enough to constitute a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency erred when it found that he did not prove he was subjected to reprisal and reiterates arguments presented during the investigation. Additionally, Complainant contends that the Agency's final decision did not address two claims that were raised in a motion to amend before the AJ. These claims concerned allegations that the Agency violated his medical confidentiality in July 2010. The Agency requests that we affirm its final decision.

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

Motion to Amend: Medical Confidentiality Claims

As an initial matter, we note that Complainant contends that the Agency's final decision did not address two medical confidentiality claims that he sought to have incorporated into his complaint. The record reveals that on August 8, 2011, Complainant submitted a motion to amend Agency Number HS-TSA-01276-2010 to include the two claims identified above. The Agency was served with a copy of the motion to amend. The AJ did not respond to Complainant's motion before Complainant withdrew his request for a hearing. The Agency also did not respond to the motion to amend.

We find that, because the Agency had notice of Complainant's motion to amend, it was obligated to respond to it after Complainant withdrew his hearing request. Commission regulations provide, in pertinent part, that, a Complainant may amend a complaint any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. 29 C.F.R. � 1614.106(d) (1999). Once the Agency is aware that a Complainant is raising a new like or related claim, the Agency is required to amend the complaint and acknowledge the amendment in writing. See EEO MD-110, Chap. 5 Sect. III(B)(2); see also 29 C.F.R. � 1614.106(e). The Agency must also notify the EEO investigator to include the new allegations in the investigation. See EEO MD-110, Chap. 5 Sect. III(B)(2).

Although the investigation had been completed in this case, the Agency should have addressed Complainant's motion to amend after the AJ remanded the entire case to the Agency. We determine that Complainant's medical confidentiality claims are like or related to those raised in Agency Number HS-TSA-01276-2010. In so finding, we note that the additional claims occurred during the same time period as the matters in Agency Number HS-TSA-01276-2010, and involve a common responsible management official. Consequently, we find that the Agency erred when it did not amend Complainant's instant complaint to include the medical confidentiality claims.

The medical confidentiality claims were not investigated, and the record is not adequately developed for us to make determination of the merits of these claims. Thus, we will remand these claims to the Agency for investigation.

Disparate Treatment and Hostile Work Environment

Complainant alleges that he was subjected to disparate treatment and a hostile work environment. In order to prevail in a disparate treatment claim, 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, non-discriminatory 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 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). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, supra, to establish a prima facie case of reprisal, he must show: (1) he engaged in a prior protected activity; (2) the official acting on behalf of the Agency was aware of the protected activity; (3) he was subjected to adverse treatment by the Agency; and (4) a nexus, or causal connection, exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000).

In order to establish a claim of hostile work environment harassment, Complainant must show that: (1) he belongs to a 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 environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

We note that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity, Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).

Claims 1, 2, 3, 5, 6, 7, 8, and 10

For purposes of analysis, and without so finding, we assume that Complainant established a prima facie case of reprisal for claims 1, 2, 3, 5, 6, 7, 8, and 10. Nonetheless, we find that the Agency provided legitimate, non-discriminatory explanations for its actions with regard to these claims. Specifically, for claims 1, 5, and 7, management stated that Complainant's 2007 and 2008 J-Band scores reflected that he did not seek long duration developmental assignments, such as Operations Officer, Training Officer, and representative to Joint Terrorism Task Forces. The SAC further stated that all managers in the Charlotte Field Office normally met to collectively discuss and evaluate the promotion potential of each employee annually, which ensured that the assessment of each employee is thorough. Other witnesses also stated that SACs normally consulted with supervisors and managers concerning J-Band ratings and rankings.

Regarding claim 2, the SAC stated that the Acting ATSAC assignment was not implemented until March 2008, and all FAMs could not be appointed Acting ATSAC within the compressed period of time Complainant claimed he was denied this assignment. With respect to claim 3, SFAM1 stated that he had no recollection of ever saying that Complainant would be the last person promoted in the office. With respect to claim 6, S1 stated that he has never discussed the firing of anyone with or in the presence of the Trainer, and the Trainer denied that S1 told him that the Agency would fire Complainant.

Regarding claim 8, the SAC stated that Complainant was not selected as Acting ATSAC in May 2010 because management decided that it would select the highest-ranked individual for the assignment because this was a three month assignment. Regarding claim 10, SFAM1 stated that he did not say that Complainant would not be promoted because he was outside the circle of trust. He stated that on May 21, 2010, an employee (C2) made a joke about SFAM1 while SFAM1 made copies in the FAM commons area, and he told C2, "Be careful [C2], once you get outside the circle of trust, you can never get back in." SFAM1 stated that this comment was a reference to the popular movie "Meet the Parents" and to a line uttered by Robert De Niro's character in that movie.

Upon review, we find that Complainant failed to prove that the Agency's non-discriminatory explanations were pretext for unlawful discrimination for the aforementioned claims. In so finding, we note that Complainant's 2007 and 2008 J-Band ratings are consistent with the ratings he received in 2009. Further, different panels produced Complainant's ratings/rankings each year, and at least half of Complainant's ratings/rankings were attributable to independent panelists at Headquarters who did not know about Complainant's previous EEO activity. Moreover, in EEOC Appeal No. 0120131113 (September 28, 2015), we found that Complainant did not prove that his similar 2009 J-Band ratings/rankings were the result of reprisal. With respect to claim 3, Complainant acknowledged that he did not know if the conversation in which he overheard SFAM1 say "he would be the last person in this office to be promoted," was about him, and he did not claim that he heard SFAM1 mention him at all during this conversation. With respect to claim 10, a coworker attested that the term "circle of trust" was not used in reference to Complainant, but was part of ordinary coworker banter. As such, we cannot conclude that these comments constituted retaliation. Additionally, with respect to claim 6, Complainant's claim is greatly undermined by the Trainer's contention that he did not hear S1 make such an assertion.

Thus, for claims 1, 2, 3, 5, 6, 7, 8, and 10, we determine that Complainant has not provided any evidence from which it reasonably could be concluded that the Agency's non-discriminatory reasons for its actions were pretext for reprisal. A finding of a hostile work environment is also precluded by our determination that Complainant has not established that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, we find that the Agency properly found no discrimination or harassment with respect to claims 1, 2, 3, 5, 6, 7, 8, and 10.

Claims 4, 9, and 11

In claim 4, Complainant contends that on an unspecified date in 2008, SFAM1 entered into a bet with FAM2 concerning the outcome of his previous EEO complaint. SFAM1 maintained that he merely bet FAM2 that the former SAC would not lose any lawsuits, but he did not specifically mention Complainant. FAM2 acknowledged that he and SFAM1 bet a beer that the former SAC would not lose any lawsuits, but they did not specifically mention Complainant's EEO activity.

However, FAM1 affirmed that he heard SFAM1 and FAM2 talking about Complainant's EEO complaint and betting that Complainant would win his case. We note that this discussion occurred in the same year as an EEOC AJ's decision, issued on May 2, 2008, which found that the former SAC subjected Complainant to reprisal, and which the Agency subsequently appealed to the Commission. See EEOC Appeal No. 0720080048 (Dec. 10, 2009). Additionally, SFAM1 acknowledged that FAM2 called him at his home and advised him that Complainant had won a lawsuit, which we are persuaded reflects that SFAM1 and FAM2 were accustomed to discussing Complainant's EEO activity. Moreover, although SFAM1 claims that the bet and conversations with FAM2 concerned lawsuits against the former SAC in general, he has not specified any other complaints or lawsuits on which they could have made such a bet. As such, we are persuaded that SFAM1 made a bet about Complainant's EEO complaint(s), as well as discussed Complainant's EEO activity with FAM2. Further, we find that such conduct by a management official is reasonably likely to deter employees from engaging in EEO activity. Consequently, we conclude that SFAM1 subjected Complainant to reprisal with respect to claim 4.

Although the Agency addressed claims 9 and 11 as separate claims, we find that these matters should be viewed as single claim. Complainant maintained that he told the SAC that he intended to file an EEO complaint, challenged the SAC's selection for Acting ATSAC, and said he believed that he was being treated differently than other FAMs. Complainant further maintained that the SAC then reached toward Complainant, began shouting at him, and said that Complainant's ""communication skills suck." The SAC maintained that, during this incident, Complainant entered his office to protest the selection of C1 as Acting ATSAC, demanded that he justify why C1 had been selected, and said that he intended to file a formal complaint against the SAC. The record reveals that the SAC immediately filed a report of misconduct against Complainant regarding the incident, which resulted in a formal investigation of Complainant by the Agency.

Upon review, we first note that an employee is protected against retaliation for opposing perceived discrimination if the employee had a reasonable and good faith belief that the opposed practices were unlawful. EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003, at 8-II (B)(1) (May 20, 1998) (Compliance Manual). However, the manner in which an individual protests perceived employment discrimination also must be reasonable in order for the anti-retaliation provisions to apply. Compliance Manual, 8-II(B)(3)(a).

In this case, although Complainant's manner of opposition was rather direct and bold, we do not find that it was unduly disruptive or insubordinate, or otherwise unreasonable. As such, we find that Complainant engaged in protected EEO activity when he questioned the SAC's selection decision, told SAC that he had been treated differently than other FAMs, and asserted that he would file an EEO complaint about the matter. Further, the Agency acknowledges that it investigated Complainant because of this oppositional activity. Although the investigation did not result in any further action against Complainant, we determine that investigating Complainant because of his oppositional EEO activity is itself reasonably likely to deter employees from engaging in EEO activity. Therefore, we find that the Agency subjected Complainant to retaliation when it investigated him in connection with this incident.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision with respect to claims 1, 2, 3, 5, 6, 7, 8, and 10. We REVERSE the Agency's final decision with respect to claims 4, 9, and 11, and REMAND these matters to the Agency for further processing consistent with this decision and the ORDER set forth below. Additionally, we remand Complainant's medical confidentiality claims for an investigation and further processing in accordance with this decision and the ORDER set forth below.

ORDER

The Agency is ORDERED to take the following remedial actions:

1. The Agency is ordered to process the remanded medical confidentiality claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.

2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's retaliation and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.

3. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to all Charlotte Field Office management officials regarding their responsibilities under Title VII, with special emphasis on the duty of managers to avoid reprisal.

4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials identified as SFAM1 and the SAC. The Agency shall report its decision to the Compliance Officer referenced herein. 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 the responsible management officials identified as SFAM1 and the SAC have left the Agency's employment, the Agency shall furnish documentation of the departure date(s).

5. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order."

6. 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 evidence that the corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at its Charlotte, North Carolina 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 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.

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 (M0815)

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, 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

Carlton M. Hadden

Director

Office of Federal Operations

Footnotes

1

This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

2

The record reveals that the former SAC subsequently retired in late 2007.

3

The AJ issued a decision on HS-06-TSA-005282, which the Agency implemented, and Complainant appealed to the Commission in EEOC Appeal No. 0120131083. The Agency issued a separate decision on HS-10-TSA-001204, which Complainant appealed to the Commission in EEOC Appeal No. 0120131113 (Sept. 28, 2015).