0520110173
02-18-2011
Roger F. Schofield, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Roger F. Schofield, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Request No. 0520110173
Appeal No. 0120082521
Hearing No. 480-2007-00617X
Agency No. HS06TSA005682
DENIAL
The Agency timely requested reconsideration of the decision in Roger
F. Schofield, Jr., v. Department of Homeland Security, EEOC Appeal
No. 0120082521 (November 2, 2010). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates that:
(1) the appellate decision involved a clearly erroneous interpretation
of material fact or law; or (2) the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented in this case is whether the Agency demonstrated
that it met the criteria for reconsideration set forth in 29 C.F.R. �
1614.405(b).
BACKGROUND
In the appellate decision, Complainant, a Supervisory Assistant to the
Special Agent in Charge (ATSAC) at the Agency's facility in Las Vegas,
Nevada, alleged that the Agency harassed him in reprisal for prior
protected EEO activity when: (1) In August 2006, he was directed by the
Assistant Special Agent in Charge (A-1) to submit any notes he had from
a selection panel showing negative remarks made by another ATSAC, (B-l),
regarding his dislike for a particular Federal Air Marshal (C-1). After
Complainant turned over his notes, he became aware that A-1 provided
those notes to B-l; (2) In October 2005, A-1 threatened him with physical
violence and threw rolled up documents at him which hit him in the face;
(3) In August 2006, A-1 made an inappropriate comment that suggested
that he hold urine sample cups during drug testing; (4) In November
2006, A-1 attempted to solicit derogatory information about him in
order to subvert any future investigations; (5) On August 12, 2006, A-1
assigned him to work a six-day week, while the retired annuitants were
allowed to participate in a golf tournament; and, (6) In October 2006,
A-1 arbitrarily assigned him to work over the Christmas holiday whereas
the newly hired B-l did not have to work. An EEOC Administrative Judge
(AJ) issued a decision without a hearing finding no discrimination.
The AJ determined that the alleged actions involved in this case were not
sufficiently severe or pervasive to constitute a hostile work environment.
The Agency fully adopted the AJ's decision.
The Commission however, modified the finding of no discrimination
and found that the AJ had erred as a matter of law with respect to his
findings of no discrimination concerning claims 1 and 4. Specifically,
the Commission found that Complainant had established a prima facie case
of reprisal but the Agency had provided legitimate, non-discriminatory
reasons for its actions with respect to claims 3, 5, and 6, and
Complainant failed to establish pretext.1
With respect to claims 1 and 4, however the Commission found that the
record evidence contained an email from A-1, entitled "Request for EEO
Assistance" which stated:
I am ready to file a counter-complaint, can you [first name]
document some of
[Complainant's first name] [sic] comments about me (F-king me in
the A-, etc).
The email also contained a forwarded email from an EEO counselor that was
copied to A-1. In the email, the EEO counselor stated that Complainant
had filed an informal EEO complaint in which he alleged that he was
harassed by A-1 and requested remedies. The Commission found that the
only reasonable interpretation of A-1's November 15, 2006 email was that
it was motivated by Complainant's EEO activity. The Commission also
found that A-1 had entangled himself into Complainant's EEO activity
when he ordered Complainant to provide him with the notes he submitted
for an EEO investigation. There was no evidence that A-l's actions were
merely an unbiased attempt to assist with the investigation of C-l's
EEO complaint. Instead, by verbally sharing the notes with B-l, it is
clear that A-1 procured Complainant's notes and exposed its contents
in an effort to intimidate Complainant and interfere with an ongoing
EEO investigation. Thus, the Commission concluded that A-1 unlawfully
retaliated against Complainant by interfering with his EEO activity.
Consequently, the previous decision found that the AJ committed legal
error when she found that Complainant was not subjected to reprisal
because of his EEO activity.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency requests that
the Commission reconsider its decision because the alleged retaliatory
acts occurred within the context of litigation and as such, should not
be considered interference with Complainant's EEO activity. The Agency
also argues that further scrutiny of the record evidence shows that
forwarding an email was not a publication of Complainant's EEO activity
but simply a request for documentation to managers that had a need to
know of the forthcoming complaint.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that the Agency has not shown that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. The Commission
has long held that an employee may suffer unlawful retaliation if his
supervisor interferes with his EEO activity, as the previous decision
correctly found occurred in this case. See Binseel v. Depl. of the Army,
EEOC Request No. 05970584 (October 8, 1998); see also Marr v. Dept. of the
Air Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Dept. of
the Navy, EEOC Appeal No. 0120040193 (March 31, 2005).
In the instant case, the Agency characterizes the matters in claims
(1) and (4), as actions that were associated with litigation.
The supervisor's email, however, reads as a personal attack against
Complainant and does not appear to have been made in preparation for
litigation, as the email did not come from the Agency's attorney nor did
it come from anyone in the EEO office. This was a personal email from
Complainant's supervisor to other parties. Moreover, the supervisor's
email informs its recipients that Complainant was involved in the
EEO process. While the Agency has argued that the recipients of the
email had a need know this information, we find that the Agency has put
forth no evidence which demonstrates that these individuals had a need to
know or were directly involved in this matter. We find it reasonable to
conclude therefore that A-1 unlawfully retaliated against Complainant by
interfering with his EEO activity. Therefore, the Commission finds that
the Agency has not demonstrated that the appellate decision was clearly
erroneous. Accordingly, the decision in EEOC Appeal No. 0120082521
remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
The Agency shall comply with the Order as set forth below.
CONCLUSION
The Agency's request for reconsideration is hereby denied.
ORDER
The Agency is ordered to take the following remedial actions:
1. The Agency shall provide EEO training to all managers and
supervisors at the Agency's facilities in Las Vegas, Nevada. The training
shall place special emphasis on the Agency's obligation to prevent
retaliation and interference with the EEO process. The Commission does
not consider training to be a disciplinary action.
2. The Agency shall consider taking disciplinary action against
A-1, the responsible management official. The Agency shall report its
decision within thirty (30) calendar days. If the Agency decides to take
disciplinary action, it shall identify the actions taken. If the Agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
3. The Agency shall undertake a supplemental investigation to
determine Complainant's entitlement to compensatory damages under
Title VII. The Agency shall give Complainant notice of his right to
submit objective evidence (pursuant to the guidance given in Carle
v. Dept. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and
request objective evidence from Complainant in support of his request
for compensatory damages within forty-five (45) calendar days of the
date Complainant receives the Agency's notice. No later than ninety
(90) calendar days after the date that this decision becomes final,
the Agency shall issue a final agency decision addressing the issue of
compensatory damages. 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 below.
4. The Agency shall post the attached notice, as detailed below.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (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
_____2/18/11_____________
Date
1 With respect to claim (2), the previous decision found no prima facie
case of reprisal discrimination.
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0520110173
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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