Tamara G.,1 Complainant, v. Robert A. McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120112387 Hearing No. 510-2009-00098X Agency Nos. 2001-0573-2008-102322 2001-0573-2008-100823 DECISION The Commission accepts, pursuant to 29 C.F.R. § 1614.405, Complainant's appeal from the Agency's February 23, 2011, 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 Agency implemented the decision of the EEOC Administrative Judge (AJ) who granted summary judgment and found no discrimination. For the reasons that follow, the Commission VACATES the Agency's final order and REMANDS the case for further processing. ISSUE PRESENTED Was the grant of summary judgment proper where Complainant alleged that she was subjected to a hostile work environment based upon her race and reprisal? BACKGROUND Complainant worked as a Clinical Nurse Educator at the Agency's Lake City facility in Gainesville, Florida. On March 31, 2008 and July 1, 2008, Complainant filed discrimination complaints. The Agency consolidated the two complaints. In Complaint 1, Complainant alleged that the Agency discriminated against her on the bases of race (Black) and subjected her to a hostile work environment when: 1. In September 2007, the Nurse Manager told Complainant that "this might offend you; politicians keep people on welfare enslaved by giving them services because they want the welfare people to vote for them." 2. On October 26, 2007, the Nurse Manager told Complainant that "[her] black bitch was going to have pups." In Complaint 2, Complainant alleged that the Agency discriminated against her on the basis of reprisal when the following incidents occurred: a. On February 26, 2008, Complainant received her proficiency report with a rating of "Highly Satisfactory" instead of "Outstanding." b. On February 26, 2008, Complainant discovered that her supervisor did not use some of the information from the Complainant's self-assessment in the final proficiency report. c. On February 26, 2008, Complainant believed her supervisor shared her proficiency report with a co-worker when Complainant saw the two of them talking in the hallway while the supervisor was making a copy of the proficiency report of Complainant. d. On November 6, 2007, Complainant's supervisor stated that she would "remain neutral" regarding an allegedly racial statement made by the Nurse Manager. e. On December 7, 2007, while in a meeting, Complainant's supervisor stated that her recommendation regarding a fact-finding investigation would stand since "...a Nurse Educator cannot be going against a Nurse Manager..." After investigation of the complaints, Complainant requested a hearing before an EEOC AJ. Over the opposition of Complainant, the AJ granted summary judgment. Regarding incident 1 of Complaint 1, the AJ found that the comment of the Nurse Manager (White), when taken in the context of the conversation "in no way whatsoever" amounted to a racial or discriminatory slur. The AJ also found that if the remark could somehow be considered racially derogatory, it was not sufficiently severe so as to create a hostile work environment. Regarding incident 2 of Complaint 1, the AJ found that the Nurse Manager owns, breeds, and shows dogs in competitive dog shows and that at the time of the incident, the Nurse Manager was discussing her pregnant show dog, a Black German Shorthair Pointer. Regarding incident 2a of Complaint 2, the AJ found that, although Complainant was rated outstanding in previous years, she was being rated for the first time by her new supervisor (White) for the February 2008 rating. Previous ratings were from different supervisors. The AJ also found that the other two Nurse Educators identified by Complainant were not similarly situated for the purposes of finding disparate treatment. In so finding, the AJ noted Complainant's statement in her affidavit that she worked in the ambulatory unit in the Lake City facility and the other two Nurse Educators supervised by her supervisor worked in Gainesville. Regarding incident 2b of Complaint 2, the AJ found that Complainant failed to show that her supervisor was required to use information provided by Complainant in her self-assessment when the supervisor issued the evaluation. The AJ also noted that Complainant provided no evidence that her supervisor had used the self-assessment of a comparator. Regarding incident 2c of Complaint 2, the AJ found that Complainant failed to provide evidence, beyond her mere assertion, that her supervisor shared her evaluation with another employee. The AJ noted that Complainant herself admitted in her affidavit that she was not sure. Regarding incidents 2d and 2e of Complaint 2, which relate to the alleged "black bitch" remark and the Agency's internal investigation, the AJ found that Complainant failed to establish a prima facie case of reprisal or to establish how either incident was adverse or discriminatory. Regarding incident 2d, which occurred on November 6, 2007, the AJ determined that, as of November 6, 2007, Complainant had not engaged in any protected EEO activity and that Complainant did not engage in protected activity for the first time until December 3, 2007, when she sought EEO counseling. Regarding incident 2e, the AJ found that, although Complainant had engaged in protected activity, she had failed to satisfy all the elements of a prima facie case of reprisal. CONTENTIONS ON APPEAL Complainant maintains on appeal, as she did below, that she was subjected to a retaliatory and discriminatorily hostile work environment by management, largely at the hands of her supervisor and a nurse manager. In its response, the Agency asserts that Complainant has failed to offer any persuasive or legally sufficient evidence or reason its final order should be disturbed, and contends that Complainant raises new issues that were not part of her complaint. ANALYSIS AND FINDINGS Summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). When a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). Because this is an appeal from a decision issued without a hearing, the Commission will review the matter de novo. See 29 C.F.R. § 1614.405(a); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). Upon review, the Commission finds that the grant of summary judgment was improper because credibility is in issue regarding the existence of discriminatory animus. In addition, the investigative record is incomplete. We find that the underlying claim of both complaints was that of harassment. Only the two incidents in Complaint 1 were addressed in the context of a harassment claim, although Complainant's affidavit clearly reveals that she was also alleging overall harassment. Although Complaint 2 contains only five incidents, three of which occurred on the same date and relate only to Complainant's evaluation, Complainant's affidavit identifies other incidents of alleged harassment.2 Complainant cites several incidents of being treated disparately, being subjected to retaliation, and being harassed, in addition to the incidents enumerated in her consolidated complaint. Complainant stated in her affidavit that she had written down dates of the incidents and kept a log. Complainant, for example, stated in her affidavit that she was placed on absence without leave unjustifiably, approval for her leave requests was not acted on timely, and she was not told when her supervisor would be coming to her facility, although the Nurse Manager, her peer, would be provided such information in advance. Complainant also noted that she was assigned to a small cubicle with two to three feet between her desk and the counter and that she was accused of plagiarizing materials for Power Point presentations although other clinical staff also used information in their presentations which was obtained from websites, as she had done. Complainant stated that she was not allowed to conduct training although she asked to do so; that she was given responsibility for two areas of medical care while the other two Nurse Educators were not; and that her supervisor delayed the signing of her Ergonomic Report and then gave it to the Nurse Manager, although it was a confidential report. Regarding the "black bitch" remark, the Nurse Manager stated in her affidavit that she was a breeder of dogs and when she made the remark about her "black bitch," she was referring to one of her dogs who was going to have pups. Complainant was offended by the remark which she felt was racially directed. The AJ accepted the Nurse Manager's explanation that she was only making a reference to dogs and using language used by dog breeders. Two witnesses (White) to the incident signed a Report of Contact that Complainant submitted to the Agency in which Complainant stated that, not only did the Nurse Manager say that her bitch was having pups but she also said, "I can really get offensive and say black bitch." Complainant also stated that after the incident, she would hear some of the nurses saying in the hallway, "[O]h, I need a B-I-T-C-H (inaudible), woof, woof, you know, things like that." Complainant is to be believed at the summary judgment stage. Instead, the AJ rejected Complainant's version of events and that of her witness and instead accepted the Nurse Manager's explanation that the remark was innocuous and racially neutral.3 In light of the conflicting statements, it was impermissible for the AJ to make credibility judgments by accepting the explanation of the Nurse Manager that she was referring only to dogs. We recognize that we have consistently held that, generally, one remark may not be sufficient to create a hostile environment. However, a hostile work environment under Title VII is a cumulative phenomenon, and a series of individual episodes of inappropriate behavior eventually can amount to a hostile environment. The "black bitch" remark therefore may be only one remark in a claim of harassment, but is relevant in finding whether a discriminatorily hostile work environment existed by examining the other incidents of alleged harassment identified by Complainant.4 The trier of fact must consider all of 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, 23 (1993). The Commission will not address the interpretation of the remark concerning welfare because this matter is being remanded for hearing. Nonetheless, we note that the AJ found that the comment was "neither racial nor discriminatory in nature" and that, when taken in the context of the conversation, it was "in no way whatsoever" a racial or discriminatory slur. However, according to Complainant, this statement came "out of the blue." The Commission finds it instructive to note that a comment that is non-discriminatory on its face may well be discriminatory if taken in context. See, e.g., EEOC Compliance Manual, Sec. 15, para. VII(A)(2), Ex. 18 (Apr. 19, 2006). Here, the context to which the AJ refers is not explained in the record, leaving us unable to determine whether the comment was racially motivated. Regarding the challenged rating, the Commission notes that the AJ indicated that a rating of "Highly Successful" could not be considered an adverse action. Because Complainant could have received a higher evaluation absent unlawful discrimination, receiving a lower evaluation is an adverse action, even if that rating is not an "Unsatisfactory" rating. Further, the Commission has also consistently held that, even when a lowered evaluation does not result in any change in compensation, it states a valid claim. Regarding reprisal and the rating received, the AJ found that receiving a highly successful rating is not reasonably likely to deter one from engaging in protected activity. If an employee engaged in protected activity and was retaliated against by receiving a lower evaluation, even if the rating is positive, it is likely that receiving the lower rating could create a chilling effect on an employee engaging in protected activity in the future. Also regarding reprisal, the Commission notes that, although some of Complainant's allegations, standing alone, may not state a cognizable claim, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. The Commission has a policy of considering reprisal claims with a broad view of coverage. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). We note that 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 instances, to examine and cross-examine witnesses." See EEO MD-110, at Chap. 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 Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998); see Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In this case, the investigative process was improperly truncated by eth grant of summary judgment. CONCLUSION Based on the foregoing and a review of the entire record, including the contentions on appeal, this matter will be remanded for hearing. Because there exists a genuine issue of material fact regarding the existence of discriminatory animus, and because the record is not adequately developed regarding the additional alleged incidents of harassment, the grant of summary judgment was improper. The Agency's order adopting the AJ's grant of summary judgment and finding of no discrimination is therefore VACATED and the matter is REMANDED for a hearing. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) 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. Thereafter, the Administrative Judge shall hold a hearing and 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 (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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. 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 12-3-2015 __________________ Date 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 does not indicate when the incidents occurred and the Commission makes no finding regarding timeliness issues. On appeal, Complainant also references some of the incidents previously identified in the record but also indicates that she was faced with proposed suspensions and removal after filing her complaint. The record does not indicate whether the alleged suspension and removal are the subject of pending complaints before the Agency. 3 See Richardson v. Dep't of Homeland Security, EEOC Appeal No. 0120070003 (May 22, 2008) (use of the words "lazy," "moron," "dumb," and "incompetent" to describe complainant could not be viewed as generic insults in light of confirmed use of the racist term "black bitch"), request for recon. denied, EEOC Request No. 0520080622 (July 22, 2008); Brown v. Dep't of Justice, EEOC Appeal No. 0120045121 (Dec. 20, 2006) (co-workers' covert ridicule of complainant as a "black bitch" indicated that other harassing conduct was motivated by racial animus); request for recon. denied, EEOC Request No. 0520070276 (Mar. 2, 2007). 4 The Commission notes that, although the Agency appears to have conducted a fact-finding investigation concerning the remarks, there is no report included in the record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2011-2387 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120112387