Complainant, v. , Commissioner, Social Security Administration, Agency. Appeal No. 0120110253 Hearing No. 480-2009-00645X Agency No. SF090435 DECISION On October 12, 2010, Complainant filed an appeal from the Agency's September 13, 2010 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician/Legal Assistant at an Agency Hearings Office located in Orange, California. On April 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when (1) on March 6, 2009, a manager inappropriately intervened in a personal issue between employees when they were made aware of a personal letter (dated February 3, 2009) from Complainant to a coworker, and (2) on March 13, 2009, the Hearing Office Chief Administrative Law Judge entered into an office utilized for counseling and acted inappropriately during an initial EEO counseling interview session being attended by a complainant, an EEO counselor (by phone), and Complainant (as an EEO personal representative). The Agency accepted Complainant's claims for investigation. Investigation Claim (1) During the investigation, Complainant stated that she "spearheaded" a committee coordinating a 2009 Black History Month luncheon. Complainant stated that, as in the past, African American employees in her office planned the Black History Month luncheon but that, in 2009, a Caucasian coworker (C1) caused dissension in the office by expressing concern about the plans for the luncheon. Complainant stated that she wrote a letter to C1 because C1 "has a problem with people of color who do not behave a certain way." Complainant indicated her immediate supervisor (S1) questioned her about the letter to C1, but that Complainant just wanted to express her concerns to C1 and not discuss the matter further. Complainant stated that S1 began to "badger" her about the letter and removed Complainant from an informal office social group, the Sunshine Club1. During the investigation, S1 acknowledged that she was aware of Complainant's prior EEO activity. S1 stated that Complainant left a three page letter on C1's desk that upset C1 and C1 asked her to look into the matter. S1 stated that she investigated the matter and deemed it to be "an inappropriate escalation of negative events between two employees." S1 stated that C1 has a different supervisor and that she and C1's supervisor decided that removal of Complainant and C1 from the Sunshine Club, which was the source of the dispute, was appropriate. S1 stated, ultimately, neither employee was removed from the club. Claim (2) Complainant stated that, on March 13, 2009, she sat as representative with an aggrieved employee (C2) during a telephonic Initial Interview with an EEO Counselor. Complainant stated that the Hearings Office Chief Administrative Law Judge (S2) angrily burst into the vacant office they were using for the Initial Interview. Complainant acknowledged that there were some irregularities in procedure in that a room was not scheduled in advance and a telephonic interview was used rather than an in-person one. However, Complainant stated further that S2 acted inappropriately by bursting into the office, hanging up the call with the Counselor, yelling "shut up" at Complainant so that her colleagues could hear, and acting as if she was going to hit Complainant. Complainant stated that a security guard stood outside the office with his hand on his gun during the incident. Also, Complainant added that the office had been used in the past for EEO matters or personal matters because it was vacant. C2 corroborated Complainant's contentions. C2 stated that S2's behavior was "very scary and very threatening. . . . [she] thought [she] might have to call 911." During the investigation, S1 stated that she received a request to use an office for an initial interview after-the-fact. S1 explained that an EEO Counselor left her a voice mail about an Initial Interview with C2 and she returned his call, at which time the Counselor indicated he was in the midst of the Initial Interview with C2 and Complainant. S1 stated that she left her office to inform S2 "what was going on" and found a post-it note on her closed door from Complainant indicating she and C2 were in the vacant office. S1 stated that the employees would not have been authorized to use the office-at-issue because it is a management office and contained confidential information. S1 stated that she did not witness S2 yell at Complainant and C2, but did hear S2 tell them to leave the room and reschedule their session. S2 acknowledged that she was aware of Complainant's prior EEO activity, noting that her prior activity was against other management officials in the Orange, California office. S2 stated that Complainant and C2 were using an office that "contained confidential and sensitive management and employee information." Further, S2 stated that the two failed to request a meeting space in accordance with the collective bargaining agreement provisions and that Complainant failed to request official time to serve as a personal representative in advance. S2 indicated that she informed them "they needed to leave the office and would need to reschedule their meeting." Post-Investigation Stage Following its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 12, 2010, the AJ assigned to the case issued a summary judgment decision2 finding no discrimination. Regarding (1), the AJ indicated that Complainant accused a coworker of racial bigotry and the Agency had an obligation to look into such a matter, which could not be considered a personal matter but rather a workplace one. The AJ added that the removal of Complainant from the social committee was appropriate after the Agency determined that the coworker, C2, had not done anything improper. The AJ noted that an Agency cannot lawfully prohibit one race from participating in the special emphasis programs of another, such as Complainant suggests should have occurred with the Black History Month luncheon here. With regard to (2), the AJ stated that there is no evidence that S2 was aware of the reason Complainant and C2 were meeting in the vacant office and, even if she was aware, employees are not free to conduct EEO business whenever or wherever they would like without permission. Subsequently, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. CONTENTIONS ON APPEAL On appeal, for (1), Complainant stated that management inappropriately disciplined her for a personal matter she addressed with a coworker. Further, for (2), Complainant stated that she and C2 utilized a vacant office as various office staff had in the past. She stated that she did not have a problem with S2 informing them that they could not use the office but felt threatened and mistreated by the manner in which S2 did so. Finally, Complainant stated that the assigned AJ issued a summary judgment decision improperly. Complainant indicated that she responded to the Agency's Motion for Summary Judgment and that her address of record remains the same so no correspondence should have been "undeliverable." ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993). To prevail in a disparate treatment claim such as the actions alleged herein, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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 Administration, EEOC Request No. 05960403 (Dec. 6. 1996) (citing McDonnell Douglas Corp., 411 U.S. at 802.) Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Upon review, we find that the AJ appropriately issued a summary judgment decision for claim (1), but erred in issuing a summary judgment decision for claim (2). As to claim (1), we find that the Agency did not subject Complainant to discriminatory treatment or harassment when it questioned Complainant about an accusatory letter Complainant left for a coworker - C1. The Agency has an obligation to provide equal opportunity in employment and to prohibit discrimination in the workplace. It was reasonable for the Agency to question Complainant about the letter she left C1 accusing her of racism in the workplace. As to (2), we find that genuine issues of material fact exist regarding the manner in which S2 confronted Complainant during the March 13, 2009 incident, whether S2 hung up the phone on the EEO counselor during the incident, whether S2 was aware of who was using the vacant office and why they were using the office prior to entering it on March 13, whether there was a past practice of employees using vacant offices for personal and/or EEO matters, whether the specific office-at-issue was used in the past for personal and/or EEO matters, the reason S2 did not want Complainant and C2 to use the office-at-issue, whether there was a policy in place for scheduling official time and office space for EEO matters and whether management deviated from that policy in the past, and whether S2 was identified as a responsible management official in C2's pre-complaint. We note that this list is not exhaustive but rather a starting point to determine if S2 acted as Complainant alleged in claim (2) and, if so, why. The hearing process is intended to be an extension of the investigative process, designed to ensure that "the parties [have] a fair and reasonable opportunity to explain and supplement the record and, in appropriate circumstances, to examine and cross-examine witnesses." See EEO-MD-110, Chapter 7, § I; see also 29 C.F.R. § 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of [her] claims." Bang v. U.S. Postal Service, EEOC Appeal No. 01961575 (Mar. 26, 1998); see also Peavley v. U.S. Postal Service, EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Service, EEOC Request No. 05940578 (April 25, 1995). As to (2), we conclude that the AJ here could not reach a finding of no discrimination except by resolving significant conflicting evidence in the Agency's favor, which is inappropriate in a grant of the Agency's motion for summary judgment. In light of the disputed issues of material fact on the instant record, issuance of a decision without a hearing was not warranted under 29 C.F.R. § 1614.109(g). We find it appropriate to remand claim (2) on all bases alleged, with a focus on reprisal, for a hearing and further consideration by an AJ. CONCLUSION The Commission AFFIRMS the agency's final action as to (1), and VACATES the Agency's final action as to (2) and REMANDS (2) to the Agency for further processing consistent with this decision and the ORDER below. ORDER For claim (2), the Agency shall submit to the Hearings Unit of the EEOC's Los Angeles District Office the request for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Los Angeles District Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations February 20, 2015 __________________ Date 1 According to Complainant, the Sunshine Club is "an informal, social club that basically plans office celebrations for birthdays, Christmas parties, retirement parties, or we send cards and flowers to people who are ill or in the hospital, or had a death in the family, that kind of thing. . . . All employees are NOT part of Sunshine it is strictly voluntary in all aspects there are no appointments." Complainant stated that members pay monthly dues for Sunshine Club membership. 2 The AJ noted in her decision that Complainant failed to respond to the Agency's Motion for a Decision without A Hearing and that February 22, 2010 correspondence sent to Complainant's address of record was returned as "undeliverable." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120110253 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120110253