Complainant v. Eric Fanning, Acting Secretary, Department of the Air Force, Agency. Appeal No. 0120140481 Hearing No. 410-2012-00234X Agency No. 4U1L11002 DECISION Complainant timely filed an appeal from the Agency's final order concerning her 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 VACATES the Agency's final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Guest Services Representative on the midnight shift at the Agency's Inns of Charleston in South Carolina. Report of Investigation (ROI), at 1. The midnight shift involved working from 11:30 p.m. to 7:30 a.m. Complainant worked in her position 11 years, which entailed working the front desk while greeting customers. Id. at 38. Complainant was also responsible for the guest lobby area, a small seating area comprised of four leather chairs, a TV, and a coffee table. Id. at 53. The Guest Relations Manager served as Complainant's first-level supervisor (S1). ROI Investigative Summary (IS), at 1. The General Manager served as Complainant's second-level supervisor (S2). Id. The Sustainment Flight Commander served as Complainant's third-level supervisor (S3). Id. On October 27, 2010, Complainant filed an EEO complaint, alleging that management of the Inns of Charleston had discriminated against her on the basis of her disability when S2 and other management officials failed to reasonable accommodate her disability by allowing her to sit a portion of each hour. ROI, at 174. Therein, Complainant asserted that rather than accommodate her disability, management instead assigned her to the midnight shift. Id. On February 10, 2011, the Agency and Complainant reached an agreement to settle her EEO complaint. Id. at 75. Thereafter, on February 18, 2011, Complainant complained to her Union Steward that S1 had been violating the settlement agreement to accommodate her disability. Id. The Union Steward subsequently visited the Inns of Charleston and spoke with S1 about the accommodation of Complainant's disability as agreed in the settlement. Id. at 75-76. On February 20, 2011, the Union Steward received an e-mail from S2, which reportedly did not address the matter. Id. Shortly thereafter, on March 7, 2011, S1 issued Complainant a notice of suspension for five days for Complainant's actions on February 19, 2011. Id. at 127-29. The suspension notice indicated that Complainant left work two hours early before the completion of her shift, which resulted in her being cited with absence without leave (AWOL) for two hours. Id. The notice also indicated that Complainant sat in the guest lobby area using her personal laptop computer for 90 minutes. Id. The notice further indicated that Complainant spread personal papers on the coffee table in the customer area, used her cell phone for personal use, and left a coworker with all the responsibilities of the front desk. Id. S1 had reportedly previously allowed workers on the midnight shift to congregate in the guest lobby during work hours and watch TV and read books. Id. at 39. S1 reportedly told employees that the midnight shift is typically very slow and they could sit in the guest lobby area. Id. at 71. Also, Complainant had reportedly sat in the guest lobby area on her laptop and cell phone prior to her October 27, 2010, EEO complaint without being reprimanded. Id. at 39. S1 further had reportedly previously told midnight shift employees that they could leave work early on occasion as long as their shifts were covered. Id. at 39-40. Complainant reportedly worked her previous midnight shift an extra two hours and decided to leave early on February 19, 2011. Id. at 71. Thereafter, on September 16, 2011, Complainant was verbally counseled by S1 for failing to report for duty on September 14, 2011. Id. at 56. According to S1, Complainant did not follow procedure by calling her directly to inform her of the absence. Id. at 149. However, Complainant sent a text message to S1's cell phone, explaining that she was ill. Id. at 59. S1 reportedly sent Complainant a reply text message stating that she hopes Complainant feels better, but she really needed her to call. Id. at 45. Complainant also apparently phoned the Inns of Charleston numerous times and requested to be transferred to S1, but could not reach her. Id. at 98. S1 was reportedly told that Complainant had called on September 14, 2011. Id. at 99. During the September 16, 2011, counseling session, Complainant and S1 had a loud verbal exchange disagreeing about the circumstances of the absence. Id. at 56. Subsequently, on October 6, 2011, Complainant was issued a notice of proposed removal signed by S1. Id. at 143-144. Therein, S1 noted in reference to Complainant: I called you in my office for verbal counseling . . . upon starting to read the verbal counseling for not calling me, as your supervisor, because you did not report for work on 14 September 2011, you stopped me after the first paragraph and asked that I call S2 at his personal residence. . . he confirmed that you did not call and that you did not leave a message. Id. In the October 6, 2011, proposed removal notice, S1 further noted that complainant stated in the counseling meeting that "I do not have time for this, just read your little letter." Id. S1 further indicated in the notice: You started raising your voice and leaning against my desk saying, I do not have time to chase you around! You were pointing your finger in my face and by the end of your sentence using a very loud and demonstrative voice. . . . You increased your volume and leaned over my desk shouting . . . . I felt in fear of my safety at this time and asked you to please back away from my desk and take your voice down to an acceptable level. You did not comply and directed additional angry words in my direction. . . . You then proceeded to glare at me and make me feel even more uncomfortable about my safety. In my view you were trying to bait me into a shouting match or physical confrontation. . . . Id. On October 26, 2011, Complainant was issued a Notice of Decision from S3, removing her from her from her position effective October 27, 2011. Therein S3 noted: You had been briefed by your supervisor that you must make direct phone contact with her and any other means was not acceptable. The verbal counseling that S1 attempted to give you on September 16, 2011, was warranted, and your behavior during this session was clearly unacceptable. Id. at 139. Meanwhile, on April 6, 2011, Complainant filed the instant EEO complaint, as amended,1 alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On March 21, 2011, she was suspended for five duty days; 2. On September 16, 2011, she was verbally counseled by S1 for failing to report for duty on September 14, 2011; and 3. On October 26, 2011, she was removed from her position effective October 27, 2011. At the conclusion of the 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's August 27, 2012, motion for a decision without a hearing, and issued a decision without a hearing in favor of the Agency on September 18, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination and show that the Agency's legitimate nondiscriminatory reasons were pretext for discrimination based on reprisal. The AJ noted that Complainant admitted leaving work two hours early. The AJ noted that Complainant also admitted sitting in the guest lobby area using her personal laptop computer surfing the internet. The AJ noted that this was not the first time Complainant reclined in the guest lobby area "surfing the internet" on the clock. The AJ noted that a video recording showed Complainant eating in the guest lobby area on February 17, 2010, which showed that she was not working. The AJ noted that Complainant was aware of Agency policy dated June of 2010, which explicitly states that employees may not consume food or drink in the guest lobby area or use their cell phones, and may only use the internet only to provide assistance to guests. The AJ noted that management counseled Complainant about sitting in the guest lobby area, her negative attitude, and complying with the uniform policy. The AJ also noted that there had been customer complaints about Complainant. With regard to the counseling of Complainant on September 16, 2011, the AJ noted that verbal counseling is an extremely low level of corrective behavior. The AJ noted that the counseling session was to reiterate policy that had already been previously established. With regard to the notice of removal, the AJ noted that Complainant admitted becoming very upset and that her state of mind was one of anger during the counseling session. The AJ noted that Complainant's actions were observed by a coworker who stated that management felt very uncomfortable with Complainant. The AJ noted that Complainant failed to show that management's actions were motivated by her prior protected activity. CONTENTIONS ON APPEAL Complainant has not filed a brief on appeal. The Agency requests that we affirm the AJ's decision. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, § VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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 AJ's issuance of a Decision without a Hearing The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that 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); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). 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. 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). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). 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). The Commission has noted that 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). "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 also Peavley v. U.S. Postal Serv., EEOC Request No. 059:50628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 2.5, 1995). 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 Ch. 7, § 1.; see also 29 C.F.R. § 1614.109(e). In the instant case, we find that the AJ erred in issuing a decision without a hearing because there are material facts in dispute, and the credibility of witnesses is at issue, as explained below. In order to establish a prima facie case of discrimination on the basis of reprisal, a complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse action. See Whitmire v. Dep't of the Air Force. Appeal No. 01A00340 (Sep. 25, 2000). In the instant case, unlike the AJ, we find that Complainant established a prima facie case of discrimination based on reprisal. There is no dispute that S1 and S2 and other management officials were aware of Complainant's previous EEO complaint and the settlement agreement that followed. There is also no dispute that management was aware of the instant EEO complaint filed on April 6, 2011, which Complainant later amended after she was removed. Regarding the third prong of a prima facie case of reprisal, under Commission policy, 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. EEOC Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, EEOC Appeal No. 01A00340. We find that the suspension and the counseling session, as well as the removal to be actions "reasonably likely to deter protected activity." Finally, with regard to the fourth prong, we find that a nexus exists between Complainant's EEO complaints and her claims. In particular, we note that S1 issued Complainant the five-day suspension less than a month after Complainant settled her previous EEO complaint. We also note that Complainant was suspended shortly after S1 was notified that management may have been in breach of the EEO settlement agreement. We additionally note that the instant EEO complaint and pending investigation were ongoing while the counseling session and removal occurred. Therefore, we find that Complainant has established a prima facie case of discrimination based on reprisal. Once Complainant establishes a prima facie case of reprisal discrimination, the Agency has the burden of production to articulate a legitimate, nondiscriminatory reason for its actions. With regard to the five-day suspension, S1 explained that Complainant left work two hours early before the completion of her shift and sat in the guest lobby area using her personal laptop computer and cell phone for 90 minutes. ROI, at 127-29. Regarding the counseling session, S1 explained that Complainant failed to follow procedure by telephoning her directly to inform her of the absence on September 14, 2011. Id. at 149. With respect to Complainant's removal, S1 indicated that Complainant became upset during the September 16, 2011, counseling session as noted above in the October 6, 2011, notice of proposed removal. Id. at 143-44. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. We find that the AJ has made improper credibility determinations in finding no pretext without a hearing. In finding so, we note that a coworker (C1) on the midnight shift averred that S1 had previously told midnight shift employees that they could leave work early on occasions as long as their shifts were covered. Id. at 100. Another coworker (C2) averred that she has never been disciplined for sitting in the guest area of the lobby. Id. C2 further averred t that S1 has always told Guest Services Representatives that they could sit in the guest area of the lobby because midnight shifts typically are very slow. Id. at 71. We note that C1 also averred that she had never been told that she could not sit in the guest area of the lobby. Id. at 100. With respect to the counseling session, we note that there is no dispute that S1 received a text message from Complainant on her cell phone, explaining her absence on September 14, 2011. Id. at 59. While S1 asserts that Complainant failed to follow procedure by telephoning her directly, C1 averred that she telephoned the Inns of Charleston numerous times and requested to speak with S1. Id. at 98. C1 averred that Complainant also telephoned and spoke to other employees about her absence. Id. We also note that Complainant averred that she left a voice mail message for S1. When the AJ accepted S1's reasons, the AJ essentially made credibility determinations in favor of the Agency and against Complainant. In finding no discrimination, the AJ relied on the representations of S1 instead of Complainant and her coworkers. The courts have been clear that summary judgment is not to be used as a trial by affidavit. Redmand, at 768. The Commission has noted that 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, EEOC Request No. 05940339. We also find that genuine issues of material fact exist as to whether the Agency has articulated legitimate, nondiscriminatory reasons that are worthy of belief. Specifically, C1 averred : Q: Do you have any reason to believe Complainant's prior EEO activity was a factor in management taking the actions at issue? R: I believe it could be because after she filed her complaint everything went downhill from there. Q: Is there anything you would like to add? R: It was like for every little thing Complainant was getting in trouble. It appeared [S1] and [S2] were setting her up to either terminate her or force her to quit. ROI, at 101. C1 also averred : Q: After Complainant filed her complaint did you notice any difference in how she was being treated. R: Yes. My co-workers did not want to talk to her anymore and [S1] and [S2] seemed to make more demands on her than they did myself and co-workers. . . Id. at 100. We further note that the record reflects that Complainant had never been disciplined prior to her EEO activity. Id. at 18. CONCLUSION We find that the AJ erred in issuing a decision without a hearing because there are material facts in dispute, and the credibility of witnesses is at issue. Therefore, after a careful review of the record, the Commission VACATES the Agency's final order adopting the AJ's decision and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Atlanta District Office 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 (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 (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 (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 December 4, 2014 Date 1 Complainant amended her complaint after she was removed from employment. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140481 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140481