01976054
08-27-1999
Annie Houston, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Annie Houston, )
Appellant, )
) Appeal No. 01976054
v. ) Agency No. 97-0380
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on race
(African-American), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e, et seq. Appellant alleges she was
subjected to retaliation and discrimination when: (1) on September 13,
1996, her Section Chief stated in front of co-workers that appellant had
no knowledge regarding certain files; and (2) on September 19, 1996, she
was falsely accused of stealing office carpeting. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons, the
agency's decision is AFFIRMED IN PART and REVERSED AND REMANDED IN PART.
The record reveals that during the relevant time, appellant was employed
as a Supervisory Loan Specialist at the agency's Los Angeles, California
Regional Office. By letter complaint filed December 19, 1995 and formal
complaint filed April 16, 1996 (agency no. 96-0558), appellant challenged
as retaliatory and discriminatory her non-selection for the position of
Chief of the Loan Processing Section. Appellant subsequently filed a
second EEO complaint (agency no. 96-2198), alleging that a May 7, 1996
e-mail counseling letter from the new Section Chief (SC) was sent to her
in retaliation for her prior EEO activity. Believing she was a victim
of further retaliation and discrimination due to additional incidents
which occurred on September 13 and 19, 1996,<1> appellant sought EEO
counseling and, on November 29, 1996, filed a third EEO complaint
(agency no. 97-0380), which is the subject of the instant appeal.
In the complaint at issue, appellant alleges that on September 13, 1996,
SC said loudly and in a demeaning manner in response to an inquiry by one
of appellant's subordinates, "I don't want you to talk to [appellant]
because she doesn't know anything about what you are talking about."
This was overheard by other employees. The complaint also alleges
that on September 19, 1996, SC falsely accused appellant of stealing
office carpeting, whereupon their superiors (the Loan Guaranty Officer
and Assistant Loan Guaranty Officer) initiated a two-day investigation
which revealed that the accusation was false.
At the conclusion of the agency investigation of this complaint, appellant
was sent a copy of the report of investigation (ROI). The ROI found that
with respect to both the September 13th and September 19th incidents,
appellant had established a prima facie case of retaliation and race
discrimination. The ROI then concluded appellant failed to prove that
either of the incidents at issue was motivated by her race. However,
the ROI further concluded that management had failed to articulate a
legitimate non-discriminatory reason with respect to the September 19th
incident, and recommended a finding that appellant had met her burden
to establish that that incident was retaliatory.
Appellant was advised of her right to request a hearing before an
Administrative Judge (AJ) of the Equal Employment Opportunity Commission
(EEOC), but she failed to do so. Accordingly, the agency proceeded to
issue its FAD.
The FAD concluded that appellant's claim was subject to dismissal for
failure to state a claim, finding the September 13th and 19th incidents
did not constitute adverse employment actions rendering appellant
"aggrieved" within the meaning of EEOC Regulation 29 C.F.R. �1614.103(a).
In reaching this conclusion, the FAD found that appellant did not allege
a harm or loss with respect to a term, condition, or privilege of her
employment.<2> The FAD then proceeded, in the alternative, to reach
the merits of appellant's claims. Although identifying appellant's
allegations as raising claims of retaliatory harassment and race-based
harassment, the FAD analyzed the allegations as raising claims of
disparate treatment. The FAD concluded that appellant failed to establish
a prima facie case of retaliation or race discrimination with respect to
either of the two incidents at issue because she failed to demonstrate
that similarly situated employees not in her protected classes were
treated differently under similar circumstances. The FAD also concluded
that a prima facie case of retaliation was not established because
appellant did not prove that the relevant superiors were aware of her
prior EEO activity. The FAD further concluded that even assuming appellant
had established a prima facie case, she had failed to demonstrate that
management's proffered legitimate non-discriminatory reasons for the
actions at issue were a pretext for retaliation or race discrimination.
On appeal, appellant, by counsel, limited the issue on appeal to whether
SC engaged in reprisal against appellant. Brief dated August 29, 1997, at
3.<3> Accordingly, we will not address appellant's race discrimination
claim, and we will not address, as a separate actionable claim, any
contention that appellant was also retaliated against by the Loan Guaranty
Officer or the Assistant Loan Guaranty Officer, even though appellant
named them as responsible management officials in her complaint.<4>
Appellant contends that by relying on the fact that appellant was
exonerated and SC demoted, the FAD incorrectly required a showing of
"harm," beyond reputational harm arising from the false theft accusation,
as an element of liability. Appellant relies on case law recognizing that
retaliatory provision of a negative employment reference is actionable
under Title VII notwithstanding lack of harm, which relates to what remedy
is available rather than to whether the claim is established. See, e.g.,
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997). Appellant also
contends that the agency ignored evidence that SC was in fact aware
of appellant's prior EEO activity. The agency requests that we affirm
the FAD.
The Commission interprets the statutory retaliation clauses "to
prohibit any adverse treatment that is based on a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity." EEOC Compliance Manual, Section 8
(Retaliation) at 8-13 - 8-14 (May 20, 1998). Applying this standard, we
agree with the FAD that viewing appellant's claim as one of disparate
treatment, appellant cannot state a claim of retaliation based on the
September 13th remark made by the SC, standing alone. "[P]etty slights
and trivial annoyances are not actionable, as they are not likely to
deter protected activity." Id.; cf. Tuman v. United States Postal
Service, EEOC Request No. 05980903 (February 19, 1999). However,
we find that the false accusation of theft by SC was in and of itself
sufficient to state a claim of retaliatory disparate treatment, and
we therefore proceed to the merits of appellant's claim. Cf. Johnson
v. Department of the Army, EEOC Appeal No. 01933746 (January 27, 1994)
(false accusation of stealing government property accepted by agency for
processing as stating a claim of retaliation); EEOC Compliance Manual,
Section 8 (Retaliation) at 8-15 n.41 (May 20, 1998) (citing Atkinson
v. Oliver T. Carr Co., 40 FEP Cases (BNA) 1041, 1043-44 (D.D.C. 1986)
(threat to press criminal complaint actionable as retaliation)).
Where retaliatory disparate treatment is the basis for a Title VII
claim, an appellant may establish a prima facie case by showing: (1)
that she engaged in prior protected activity; (2) that an official named
in the complaint knew of that activity; (3) that she was disadvantaged
by an action of the employer subsequent to or contemporaneous with such
opposition and participation; and (4) that the protected activity and the
adverse action were sufficiently close in time to permit an inference of
retaliatory motive. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976).<5>
Based on a careful review of the record, we find that appellant did
establish a prima facie case of retaliation. Although SC denied that she
knew about a particular formal complaint filed by appellant on September
18, 1996, the day before SC lodged the false theft accusation, see ROI
Exhibit B-4b at Q-18 and Q-19, the weight of the evidence establishes
that SC knew about much of appellant's other prior EEO activity.
SC's selection over appellant as the new Section Chief was the subject
of a separate, then-pending EEO complaint by appellant. See n.5, infra.
SC had counseled appellant in May, 1996 for spending excessive time on
her EEO complaint, and appellant had initiated EEO counseling on this
and other matters. See Appellant's Brief at Exhibit 2 (complaint letter
dated May 29, 1996, from agency case no. 96-2198). An EEO counselor had
met with SC and her superiors about appellant's retaliation allegations
against SC in case no. 96-2198 (then at the counseling stage) just a month
before SC made the theft accusation here at issue. See ROI Exhibit A-4b
(EEO Counselor's Final Report dated September 23, 1996, memorializing
August 16, 1996 interview with SC).
Management concedes that SC was demoted for making the false theft
accusation against appellant. In his May 7, 1997 "Referral for Final
Agency Decision" (Referral), the Division Director, stating management's
rebuttal to the ROI conclusions, stated as follows: "Within 24 hours
[of when appellant complained to the Division Director about the instant
reprisal], [SC] was detailed out of supervision. Because of [SC's]
conduct, subsequent adverse action was taken to permanently move her
out of the position of Chief of Loan Processing, where she supervised
appellant." See also ROI Exhibit B-2b at A-8 (Loan Guaranty Officer
affidavit); Exhibit B-5 at 2 (co-worker affidavit); Exhibit B-1b at A-19
(appellant's affidavit).
Management contends that while SC's action was "inappropriate (leading
to adverse action being taken by the agency), there is no evidence that
this conduct was in reprisal for [appellant's] prior EEO activity."
Referral at 2, paragraph 5. However, the agency has proffered no
alternative explanation for SC's misconduct. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Furthermore, we
conclude that appellant has demonstrated by preponderant evidence that
SC's false theft accusation against her was motivated by retaliation.
SC, as the selectee at issue in appellant's pending EEO non-selection
claim, was accused of being a party to a discriminatory pre-selection
notwithstanding her allegedly inferior qualifications.<6> While
management relies on the fact that SC gave appellant an "outstanding"
performance rating three months before the false theft accusation, we
note that the performance evaluation predated SC being interviewed on
August 16, 1996 by an EEO Counselor regarding appellant's retaliation
allegations against SC, just one month before SC made the otherwise
unexplained false theft accusation. Accordingly, we find that appellant
has met her burden to prove that SC retaliated against her.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED IN
PART AND REVERSED IN PART, and the case is REMANDED to the agency to
take remedial actions in accordance with this decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency is directed to conduct training for the Section Chief who
engaged in retaliation, as well as all managers in appellant's division.
The agency shall address these employees' responsibilities with respect
to prohibiting and refraining from retaliation in the workplace, and all
other supervisory and managerial responsibilities under equal employment
opportunity law.
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to retaliation and to ensure that appropriate steps
are taken immediately after management is notified of any retaliation.
The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between
the retaliation and any pecuniary or non-pecuniary losses.<7> The
appellant shall cooperate in the agency's efforts to compute the amount
of compensatory damages, and shall provide all relevant information
requested by the agency. The agency shall issue a final decision on the
issue of compensatory damages. 29 C.F.R. �1614.110. The supplemental
investigation and issuance of the final decision shall be completed
within one hundred and twenty (120) calendar days of the date this
decision becomes final. A copy of the final decision must be submitted
to the Compliance Officer, as referenced below.
In the event that SC remains an employee of the agency, the agency shall
provide a minimum of sixteen (16) hours of EEO sensitivity training with
respect to Title VII and retaliation.
The agency shall provide a minimum of eight (8) hours of remedial training
for all managers and supervisors located at the Los Angeles Regional
Office to ensure that acts of retaliation are not taken against any
employee who opposes unlawful discrimination, and that persons reporting
instances of alleged discrimination are treated in an appropriate manner.
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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Los Angeles Regional Office 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 (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501(e)(1)(iii)), he/she 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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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)(Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
August 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
retaliation in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e, et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privilege of employment.
The Department of Veterans Affairs Regional Office, Los Angeles,
California, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under the law. The agency shall therefore remedy the retaliation
found by the Commission by conducting a supplemental investigation to
determine if the affected individual is entitled to compensatory damages,
and if so in what amount, providing attorney's fees, if appropriate,
and relevant agency officials with EEO training, and submitting a report
to the Commission regarding its compliance with these requirements. The
Department of Veterans Affairs Regional Office, Los Angeles, California,
will ensure that officials responsible for personnel decisions and terms
and conditions of employment will abide by the requirements of all Federal
equal employment laws and will not subject employees to retaliation.
The Department of Veterans Affairs Regional Office, Los Angeles,
California, will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to oppose
practices made unlawful by, or who participated in proceedings pursuant
to, Federal equal employment opportunity law.
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614.1Appellant's formal complaint also cited September
16, 1996, as the date of an alleged incident, but her narrative indicates
that the dates of the incidents at issue were September 13 and 19, 1996.
2To the extent the instant complaint also made reference to the May 7,
1996 e-mail, the FAD dismissed this claim because it had been raised in
another pending EEO complaint filed by appellant (agency no. 96-2198).
It is unclear if appellant intended to raise this incident as a
separate claim, or if it was merely mentioned in the instant complaint as
background evidence. In any event, although agency complaint no. 96-2198
is not contained in the record, appellant has filed that complaint as an
appellate exhibit and concedes that she raised this contention in that
separate complaint, Appellant's Brief (dated August 29, 1997) at 4 and
exhibit 2. Accordingly, we affirm the FAD's dismissal as to the May 7,
1996 counseling e-mail.
3To the extent appellant posits a theory of retaliatory harassment,
we need not reach it in light of our finding in appellant's favor on
her claim of retaliatory disparate treatment.
4However, to the extent appellant notes that the Assistant Loan Guaranty
Officer referred to appellant in his investigative affidavit as a
"frequent filer," ROI Exhibit B-3b at 5, the Commission cautions the
agency that derogatory comments by managers regarding protected activity
can have a potentially chilling effect on the administrative EEO process.
5To the extent the FAD concluded that appellant failed to establish a
prima facie case of retaliation because she had not identified comparator
employees without prior EEO activity who were treated more favorably, this
is not required. While comparative evidence is usually used to establish
disparate treatment, appellant need only set forth some evidence of acts
from which, if otherwise unexplained, an inference of discrimination
or retaliation can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
6We note that the record in appellant's underlying discriminatory
non-selection complaint, agency no. 96-0558, reveals that the
EEO investigator issued his report recommending a finding of age
discrimination on May 7, 1996. By memorandum dated August 13, 1996,
the Division Director forwarded the report, together with his rebuttal,
for a final agency decision. The investigative report concluded that
SC was less qualified for the Section Chief position, and it contained
an affidavit from a witness asserting that SC had told him before the
selection was made that appellant was not going to receive the position.
7 Federal sector complainants prevailing on discrimination or reprisal
claims under the Age Discrimination and Employment Act cannot recover
compensatory damages or attorney's fees. Falks v. Department of Treasury,
EEOC Request No. 05960250 (September 5, 1996); Taylor v. Department
of the Army, EEOC Request No. 05930633 (January 14, 1994); Patterson
v. Department of Agriculture, EEOC Request No. 05940079 (October 21,
1994). However, appellant's reprisal claim was brought, inter alia,
under Title VII, because the underlying protected activity at issue
was a complaint alleging race discrimination and retaliation as well
as age discrimination. See Houston v. Department of Veterans Affairs,
Agency no. 96-0558. Accordingly, appellant is entitled to compensatory
damages, if proven, see, West v. Gibson, 119 S.Ct.1906 (1999);and to
attorney's fees, if otherwise warranted as provided herein.