CASSANDRA M. MENOKEN, COMPLAINANT, v. JOANNE B. BARNHART, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION AGENCY. Appeal No. 01A32052 Agency No. 01-0416-SSA Hearing No. 100-A2-7818 January 3, 2005 DECISION INTRODUCTION This appeal stems from a formal equal employment opportunity ("EEO") complaint filed by complainant Cassandra M. Menoken ("complainant") against the Social Security Administration ("SSA" or the "agency"). In this complaint, complainant claims that SSA retaliated against her, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), because she filed an earlier EEO complaint of race discrimination against a different agency -- the Office of Personnel Management ("OPM"). Complainant requested a hearing on her complaint against SSA. SSA moved for a decision without a hearing pursuant to 29 C.F.R. § 1614.109(g), and the appointed administrative judge (the "AJ") later granted this motion, finding that no illegal retaliation had occurred here. SSA adopted the AJ's ruling in full. However, for the reasons discussed below, we the United States Equal Employment Opportunity Commission (the "EEOC" or the "Commission") conclude that the agency's final order and the AJ's decision to grant summary judgment must be vacated, and this matter must be remanded for processing under 29 C.F.R. § 1614.109. BACKGROUND Because this appeal addresses the propriety of an AJ's decision to grant SSA's motion for a decision without a hearing, we will recount and consider the facts and evidence in the light most favorable to complainant, who opposed the motion. See, e.g., August v. United States Postal Service, EEOC Appeal No. 01A32685 (Apr. 3, 2003).[FN1] The Nature of this Action Complainant is an African American woman employed as a GS-15 Attorney-Advisor with the EEOC in Washington, D.C. In 1994, she filed an EEO complaint against OPM challenging the 1993 examination given to prospective administrative law judges ("ALJs").[FN2] In this complaint (the "OPM Complaint") complainant alleged that this examination violated Title VII because it had a negative disparate impact on black test-takers. An administrative judge found in November 2000 that the ALJ examination in question included a scoring criterion that unlawfully discriminated against African Americans. This administrative judge thus ordered OPM to cease its use of, and its reliance on, the discriminatory testing benchmark. Between November 2000 and June 2001, the same administrative judge held proceedings to determine whether complainant was entitled to relief as a result of the finding of discrimination entered in the OPM Complaint. The potential relief included consideration for open ALJ positions. Complainant had expressed a strong preference to be considered for such ALJ openings in Washington, D.C., specifically. According to complainant, OPM had known for quite some time about complainant's desire to become an ALJ in or around Washington, D.C. Meanwhile, SSA was attempting to fill a number of ALJ vacancies in the 10 geographic regions of its Office of Hearings and Appeals. The process for filling such slots apparently begins when an agency such as SSA asks OPM to send it a "certificate of eligibles" detailing appropriate ALJ candidates. This request to OPM contains a list of locations (hearings offices) at which the agency needs new ALJs. OPM then identifies ALJ candidates whose geographical preferences match the agency's geographical needs. OPM ultimately gives the agency a certificate of eligibles delineating the three top ranking candidates for each locality where the agency has ALJ openings. On January 19, 2001, SSA asked OPM to issue such a certificate of eligibles so that it could fill over 60 ALJ vacancies at 55 different SSA offices nationwide. SSA initially indicated that it needed an ALJ in Washington, D.C. However, roughly two weeks later, on February 2, 2001 (and before OPM had acted on SSA's original request for a certificate of eligibles), SSA submitted an amended request to OPM. This amended request retracted SSA's initial call for candidates who could fill the ALJ vacancy in Washington, D.C. After learning that SSA had redacted its original certificate of eligibles request to eliminate solicitations for Washington, D.C. candidates, complainant filed a formal EEO complaint against SSA (the "SSA Complaint"). In this complaint, filed on July 11, 2001, complainant claimed that SSA had colluded with OPM to preclude her from ever being considered for an ALJ position in Washington, D.C. Complainant apparently believed SSA wanted to retaliate against her - or at least was complicit in OPM's efforts to retaliate against her - for filing her OPM complaint (i.e., the complaint alleging race-based discrimination in ALJ testing). The Appointment of the EEOC AJ and Discovery Proceedings SSA investigated this complaint against it, issued its report of investigation, and then informed complainant of her right to request a hearing on the matter before an EEOC AJ. On April 18, 2002, complainant exercised this right. In a letter requesting a hearing, complainant also indicated that the agency's investigation of her complaint had been "blatantly deficient." Complainant's Hearing Request (Apr. 18, 2002). She noted that she had tried to "impress upon SSA's investigator the need to obtain crucial information to insure a minimally sufficient record in this matter."Id."I expressly delineated the precise nature of the information that needed to be obtained," complainant wrote, and "I also identified specific individuals from whom such information should be obtained."Id. (emphasis omitted). Nevertheless, complainant pointed out, the agency investigator failed to interview or obtain information from key SSA and OPM employees who allegedly had knowledge of the purported discrimination at issue. Id. After receiving this hearing request, the EEOC appointed an AJ to oversee this matter. On July 23, 2002, the AJ issued to the parties an Acknowledgment Order (the "AO"). This AO provided basic information on hearing-related issues such as designating a representative, attempting settlement, and engaging in discovery. With respect to discovery, specifically, the AO authorized the parties to propound interrogatories, admissions, and document requests, to make stipulations, and to take a reasonable number of depositions. The parties were directed to respond to discovery requests within 15 days of receipt of the request, and the AO stipulated that a party's failure "to respond timely, or to respond fully, to a discovery request, shall form the basis for a Motion to Compel Discovery."AJ's Acknowledgment Order (July 23, 2002). Consistent with this AO, complainant propounded her first set of interrogatories and document requests on August 28, 2002. Complainant's Interrogatory # 1 and # 2 asked SSA to "[s]et forth in detail" and "identify" all "oral 'communications' between any employee of [OPM] and any employee of SSA regarding SSA's January 19, 2001 request for a certificate of eligibles" and regarding "SSA's amended request for a certificate from the ALJ register."Complainant's First Interrogatories and Requests for Documents (Aug. 28, 2002), at 4. Complainant's Interrogatory # 10 asked SSA to "[s]et forth in detail and identify all oral communications between any employee of OPM and any employee of SSA regarding EEOC's November 2000 finding of discrimination [in the OPM complaint] with respect to the ALJ examination."Id. Complainant's Document Request # 1 requested that SSA provide complainant with "copies of all documents which relate or refer to communications between SSA and OPM regarding SSA's desire to fill ALJ vacancies in fiscal years 2002 and 2003."Id. at 5. Her Document Request # 2 asked for "copies of all documents which relate or refer to communications between SSA and OPM regarding the EEOC's November 2000 finding of discrimination [in the OPM complaint] with respect to the ALJ examination."Id. The agency responded - late, under the AO - on September 17, 2002. SSA objected to Interrogatory # 1, Interrogatory # 2, Interrogatory # 10, Document Request # 1, and Document Request # 2 on the grounds that they were "overbroad, unduly burdensome, vague, ambiguous" and "seek[] information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence."Agency's Responses to Complainant's First Set of Interrogatories and Production of Documents (Sept. 17, 2002), at 3, 9. The agency provided objections to most of complainant's other interrogatories and document requests, as well. Consequently, on September 23, 2002, complainant filed a Motion to Compel the agency to respond properly. In this motion, complainant first emphasized (as she had when she first requested a hearing) that the agency had breached its duty to conduct an impartial and appropriate investigation of her complaint. Complainant then argued that because SSA's answers to complainant's discovery requests were late, the agency had waived its right to object to the requests themselves. Complainant next claimed that SSA's objections to her Interrogatory # 1 and Interrogatory # 2, specifically, were "patently unreasonable." She contended that SSA's "failure to make reasonable inquiry into discussions that occurred with OPM in connection with SSA's multiple ALJ certificate requests in 2001 ... constitutes a clear breach of the agency's discovery obligations."Complainant's Motion for an Order Compelling Proper Responses to Discovery Requests (Sept. 23, 2002), at 4. She also claimed that, since Interrogatory # 10 asked for information about conversations between SSA and OPM regarding her prior protected EEO activity (the OPM Complaint) - an inquiry clearly relevant to the material issues in her SSA complaint - the agency's failure to respond to this query was "inexcusable." Id. at 5. Finally, and for similar reasons, complainant argued that SSA's refusal to provide material responsive to her Document Request # 1 and Document Request # 2 was likewise inappropriate. Id. It does not appear that the AJ ever ruled on this motion to compel. [FN3] Later in October 2002, however, complainant served SSA with a second set of interrogatories and document requests. Once again, the agency failed to provide comprehensive answers to many of complainant's questions. Once again, complainant filed a motion to compel SSA to respond. And once again, the AJ neglected to rule on complainant's discovery motion. [FN4] The AJ's Rulings on Summary Judgment Notwithstanding these outstanding discovery disputes, SSA filed a motion for judgment without a hearing on November 18, 2002. In its motion, the agency made several "factual contentions." Among these purported "facts" was the assertion that relevant SSA officials had "no knowledge" of complainant's prior EEO activity at the time they made the decision to modify their original request for a certificate of eligibles. Indeed, SSA noted, several agency officials who were involved in the preparation of the controversial certificate of eligibles request (e.g., SSA's Chief ALJ, SSA's Associate Commissioner for the Office of Hearings and Appeals, and SSA's Regional Management Officer for the region including Washington, D.C.) provided affidavits swearing that they did not know anything about any of complainant's prior protected EEO activity. Agency's Motion for a Decision without a Hearing (Nov. 18, 2002), at 8. SSA's motion also alleged as "fact" that it had legitimate, non-discriminatory reasons for its actions. The agency explained at summary judgment that upper management at SSA gave relevant agency officials only one day to prepare the January 19, 2001 request. Given this short time frame, officials were forced to forecast ALJ needs using readily available, but outdated, data on ALJ openings and workloads. According to SSA, after this initial rushed request was submitted to OPM, the relevant agency officials had, and took, more time to comprehensively and accurately evaluate their ALJ needs. During this review, agency officials discovered that they in fact did not need an ALJ in Washington, D.C., or in several other geographic locations originally identified in the first request. As a result, the original request for a certificate of eligibles was replaced with the February 2, 2001 - and ostensibly more accurate - one at issue (i.e., the one deleting reference to Washington, D.C. ALJ vacancies).Id. at 4-7. The agency then made three principal arguments as to why the AJ should issue summary judgment in its favor. First, SSA claimed that the SSA complaint was essentially a grievance over OPM's failure to include complainant's name on a certificate of eligibles, and that SSA had nothing to do with (and no control over) this failure. According to SSA, "OPM makes determinations about the pool of qualified candidates who officially may become applicants for" an ALJ position, and in "such cases, OPM and not the actual employing agency is the proper defendant, since only OPM can grant the necessary relief to rectify the situation."Id. at 10-11.Thus, SSA argued, this complaint against SSA should be rejected. Second, SSA pointed out that, complainant herself stated (in response to agency interrogatories) that "she was unable to determine which SSA officials have allegedly discriminated against her."Id. at 12.In short, complainant "has not only failed to present evidence that alleged SSA discriminating officials had knowledge of her prior protected activities, but she has failed to identify a single SSA official who she alleges discriminated against her on the basis of reprisal."Id. at 14.Therefore, SSA concluded, complainant "cannot establish a prima facie case of reprisal discrimination."Id. (emphasis omitted). Moreover and finally, SSA argued, even assuming complainant could make out a prima facie case, she "failed to show any probative evidence that [SSA's] articulated reasons for not including the Washington, D.C. hearing office on its February 2, 2001 certificate request to OPM were "anything but legitimate and non-discriminatory." Id. at 21.Thus, SSA claimed, the agency was entitled to judgment as a matter of law on complainant's SSA complaint. In a December 6, 2002 response to this agency motion, complainant argued that SSA's "failure to conduct a fair investigation in this matter, and its refusal to cooperate in discovery, make this case unsuited for a decision without a hearing."Complainant's Memorandum in Opposition to Agency's Motion for a Decision without a Hearing (Dec. 6, 2002), at 1 (emphasis omitted). In an accompanying statement of material facts, complainant explained that "[t]throughout the hearing stage of this matter, SSA has failed to cooperate in my efforts to adduce evidence that should have been developed during the investigation."Complainant's Verified Statement Regarding Material Facts (Dec. 6, 2002), at 3. Thus, complainant stated, "I was forced to file two motions to compel in connection with SSA's refusal to cooperate in discovery."Id."I went to the trouble of filing the foregoing motions because the discovery information that I sought is material to the credibility issues that lie at the core of my claim of reprisal."Id. The motions to compel "raised serious concerns regarding ... SSA's refusal to conduct a reasonable inquiry to identify oral communications with OPM regarding use of the ALJ register to fill ALJ vacancies in 2001. Nevertheless, complainant noted, these motions "remain outstanding." Id. For this reason, complainant argued, summary judgment was inappropriate. As complainant put it, it would "be inappropriate for the EEOC to reward SSA's obstructionist behavior by summarily granting judgment in its favor while complainant's motions remain unresolved."Complainant's Memorandum in Opposition to Agency's Motion for a Decision without a Hearing (Dec. 6, 2002), at 3. Nevertheless, on December 12, 2002, the AJ issued a decision granting summary judgment for SSA. At the time of this decision, the AJ ostensibly had not received complainant's opposition to the agency's motion for a decision without a hearing. In ruling on SSA's motion, which the AJ indicated was unopposed, the AJ stated that: the [a]gency's motion correctly states the material facts and applicable legal standards. Further, there are no genuine issues of material fact or credibility that require resolution at a hearing, and thus, summary judgment in favor of the [a]gency is appropriate for the reasons stated in its Motion, i.e., the [c]omplainant failed to establish a prima facie case of discrimination because the relevant [a]gency officials involved in the present claim attested that they had no knowledge of [c]omplainant's previous EEO protected activity and the [a]gency articulated legitimate, nondiscriminatory reasons for its actions. In addition, [c]omplainant failed to present any other evidence to create an inference of discrimination. AJ's Initial Decision (Dec. 12, 2002). Upon receipt of this decision, complainant wrote a letter to the director of the EEOC's Washington Field Office. In this letter, dated December 19, 2002, complainant contended that, contrary to the AJ's assertions, complainant had in fact filed a timely opposition to the agency's summary judgment motion. Complainant pointed out that the AJ had thus granted summary judgment to the agency without first considering complainant's timely response. Complainant also explained that the AJ's "adverse ruling on the merits of my SSA complaint occurred at a time when [the AJ] knew [the AJ] had failed to address important discovery issues, some of which had been outstanding for months."Complainant's Letter to Director of EEOC Washington Field Office (Dec. 19, 2002), at 2 (emphasis omitted). Given these alleged procedural errors, complainant asked that the OPM complaint (still pending before the AJ) be reassigned to another AJ. The EEOC's Washington Field Office did not reassign the OPM matter to another AJ. The AJ did review complainant's December 19, 2002 letter, however, and subsequently issued a second decision - a "reconsideration" of the AJ's initial order entering judgment for the agency. In this reconsideration decision, the AJ wrote that: [t]he record in this case confirms that [c]omplainant's opposition to the [a]gency's Motion for Summary Judgment was received by this office on December 10, 2002. Subsequently, I issued an Order Entering Judgment on December 12, 2002 [which] ... incorrectly states that the [a]gency's Motion for Summary Judgment was unopposed. The [a]gency's Motion for Summary Judgment was adjudicated as being unopposed, because [c]omplainant's opposition was delivered to the Washington Field Office on December 10, 2002, but was not open[ed] and distributed to me until December 16, 2002. As such, I was not aware that [c]omplainant had submitted an opposition. Therefore, in light of the foregoing I have decided to accept [c]omplainant's opposition to the [a]gency's Motion for Summary Judgment and hereby reconsider my December 12, 2002 decision. After reviewing the [a]gency's Motion for Summary Judgment and [c]omplainant's opposition thereto, I conclude that [c]omplainant's opposition did not contain any evidence that would create a genuine issue of material fact and therefore, summary judgment was correctly granted in favor of the [a]gency for the reasons stated in my December 12, 2002 decision. Reconsideration of Order Entering Judgment (Jan. 3, 2002). The agency then adopted this second AJ decision without modification. On February 24, 2003, complainant filed with the Commission a timely appeal of this agency decision and the AJ's ruling. CONTENTIONS ON APPEAL In an affidavit supporting her appeal, complainant alleges that the AJ's initial December 12, 2002 grant of summary judgment was "procedurally flawed" because the AJ failed to address outstanding discovery issues (i.e., her two motions to compel) before entering judgment without a hearing. Complainant on appeal also contends that the AJ's January 3, 2002 reconsideration decision was "clearly invalid" because there is no provision in governing regulations authorizing administrative judges to "reconsider" a dispositive decision. SSA responds on appeal that nothing in the applicable regulations can be read to preclude an EEOC administrative judge from reconsidering erroneous rulings - especially where, as here, the initial ruling failed to take into account a critical brief (i.e., complainant's opposition to summary judgment). In addition, SSA alleges that the AJ's January 3, 2003 decision effectively disposed of all outstanding discovery motions. SSA further contends (as it did in its original motion for summary judgment) that summary judgment in its favor is warranted because complainant failed to make out a prima facie case of retaliation. SSA also argues that complainant still has offered no evidence showing that the non-discriminatory reason SSA gave for revising its request for a certificate of eligibles was pretextual. [FN5] 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. See29 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 EEOC Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) ("EEO MD-110"), at 9-16 (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] 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 the 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 here. See id. at 9-15 (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 "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 Decisions without a Hearing in Federal Sector EEO Cases Complainant's complaint against SSA raises a Title VII claim of unlawful retaliation for having engaged in prior protected EEO activity (i.e., filing a race discrimination complaint against OPM).See, e.g., 29 C.F.R. § 1614.101(b) (providing that in the federal sector, "[n]o person shall be subject to retaliation for opposing any practice made unlawful by [T]itle VII of the Civil Rights Act ... or for participating in any stage of administrative ... proceedings [thereunder]"). Before we address whether the AJ and the agency properly concluded that complainant did not meet her burden of proving her retaliation case on its merits, we must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. No one disputes that complainant requested a hearing, and complainants generally are entitled to do so. See, e.g., 29 C.F.R. § 1614.109(a) (stating that "[w]hen a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing ..."). In certain circumstances, though, the Commission's rules allow an administrative judge to rule on the merits of a case without first taking live testimony at an actual hearing. According to the applicable regulations, if: a party believes that some or all material facts are not in genuine dispute and there is no genuine issue as to credibility, the party may, at least 15 days prior to the date of the hearing or at such earlier time as required by the administrative judge, file a statement with the administrative judge prior to the hearing setting forth the fact or facts and referring to the parts of the record relied on to support the statement. The statement must demonstrate that there is no genuine issue as to any such material fact. The party shall serve the statement on the opposing party .... The opposing party may file an opposition within 15 days of receipt of [such a] statement .... The opposition may refer to the record in the case to rebut the statement that a fact is not in dispute or may file an affidavit stating that the party cannot, for reasons stated, present facts to oppose the request. After considering the submissions, the administrative judge may order that discovery be permitted on the fact or facts involved, limit the hearing to the issues remaining in dispute, issue a decision without a hearing or make such other ruling as is appropriate. 29 C.F.R. §§ 1614.109(g)(1), (2) (emphasis added); see also EEO MD-110, at 7-14 (providing largely the same). Moreover, an administrative judge may propose to issue a decision without a hearing sua sponte (or, "on his or her own motion"). If: ... the administrative judge determines upon his or her own initiative that some or all facts are not in genuine dispute, he or she may, after giving notice to the parties and providing them an opportunity to respond in writing within 15 calendar days, issue an order limiting the scope of the hearing or issue a decision without holding a hearing. 29 C.F.R. § 1614.109(g)(3); see also EEO MD-110, at 7-15 (emphasis added) (stipulating that an administrative judge may issue a decision without a hearing if the administrative judge concludes that "some or all of the material facts are not in genuine dispute"). These federal sector provisions are "similar to summary judgment in court."EEO MD-110, at 7-14. Indeed, they are patterned after Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Koslow v. National Labor Relations Board, EEOC Appeal No. 01A12763 (Mar. 7, 2002) (noting as much); see also Fed. R. Civ. P. 56(c) (providing that, in the federal court system, summary judgment will be appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law"). In both the federal court system and the administrative process, this dispositive mechanism is designed to facilitate faster adjudication of claims where critical facts are uncontested - that is, where the only task remaining is to apply the relevant law to undisputed facts to determine which party should prevail. [FN6] However, before an administrative judge can properly issue a decision without a hearing in the federal sector, either on his or her own initiative or after a motion is made by either party, several criteria must be met. These summary judgment prerequisites were detailed and applied in the EEOC's decision in Petty v. Department of Defense (Defense Security Service), EEOC Appeal No. 01A24206 (July 11, 2003). These criteria, and the result we reached in Petty, dictate the outcome of the current appeal. We will therefore revisit Petty in some detail here. The EEOC's Petty Ruling In Petty, the complainant ("Petty") was a GS-11 investigator who worked at the Department of Defense (Defense Security Service). He filed an EEO complaint contending that the Defense Security Service (the "DSS") had discriminated against him on the basis of race, age, gender, and reprisal (for prior EEO activity) by failing to promote him to GS-12. Petty requested a hearing, and an EEOC administrative judge (the "Petty AJ") was appointed to adjudicate the matter. Petty then levied various discovery requests, and the DSS largely refused to respond to them (claiming, among other things, that the requests sought "information that is not relevant or likely to produce admissible evidence," were "vague and ambiguous," and/or were "overbroad" and "burdensome"). Petty filed a motion to compel the agency to comply more adequately with his discovery requests. In this motion, Petty specifically stated that he needed the agency to answer his discovery requests so that he could accurately identify the issues of material fact in dispute. The DSS responded to Petty's motion with a motion for summary judgment. In this motion, the DSS provided a "Statement of Facts." These included the "fact" that relevant DSS officials had not considered Petty's race, gender, age, or prior EEO activity in refusing to promote him. The statement also alleged as "fact" that the DSS decision-makers did not select him for promotion because he interviewed poorly and was not a team player. Petty responded to this motion by noting that the DSS had refused to turn over information critical to proving his case, and emphasizing that there were genuine issues of material fact in dispute. In a single, short ruling, the Petty AJ denied complainant's motion to compel and granted the agency's motion for summary judgment. The Petty AJ stated that the agency's responses to complainant's discovery requests had been "proper and thorough," and that there was thus no need to compel further discovery. The Petty AJ then found that the DSS's motion for summary judgment had "accurately identified the undisputed facts and controlling case law, and ... did an admirable job of applying the law to the facts."The Petty AJ also ruled that these "undisputed facts establish that there is no genuine issue as to [DSS's] articulated reasons" for its actions (i.e., "there is no evidence of falsity or that intentional discrimination was the real reason for any of [DSS's] actions"). Accordingly, the Petty AJ concluded, the DSS "is entitled to summary judgment, and I adopt the well-crafted [DSS] motion as my decision."Petty, EEOC Appeal No. 01A24206 (July 11, 2003). On appeal, we vacated the Petty AJ's summary judgment ruling, and remanded the case for a full hearing. In explaining why we were doing so, we carefully detailed the criteria that must be met before an EEOC administrative judge can properly issue a decision without first holding a hearing. First, we held in Petty, the administrative judge must be certain that the investigative record has been adequately developed. Unlike the typical civil employment discrimination trial in federal court, an EEOC hearing is not strictly judicial in nature - it is a quasi-investigatory exercise, as well. It is specifically designed as "an adjudicatory proceeding that completes the process of developing a full and appropriate record."EEO MD-110, at 7-1 (emphasis added); see also29 C.F.R. § 1614.109(a) (stating that once a complainant requests a hearing and an EEOC administrative judge is appointed, the administrative judge assumes "full responsibility for the adjudication of the complaint, including overseeing the development of the record"); cf. EEO MD-110, at 7-7 (explaining that "[t]he Commission intends that the [a]dministrative [j]udge will take complete control of the case once a hearing is requested"). Agencies are initially responsible for conducting thorough and complete investigations of complaints of discrimination brought against them. See29 C.F.R. § 1614.108(b) (instructing agencies to "develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint"); and EEO MD-110, at 6-1 (noting that an "appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred"). However, Commission rules recognize that agencies will not always meet their regulatory burden to conduct such comprehensive investigations. The rules thus clarify that "where a hearing is properly requested and where there has been no investigation or there is an incomplete or inadequate investigation, the record in the case shall be developed under the supervision of the [a]dministrative [j]udge."[FN7] EEO MD-110, at 7-7. A hearing is often indispensable in this endeavor. It "provides the parties with a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses."EEO MD-110, at 7-1. For this reason, the hearing is considered to be "part of the investigative process" itself. See29 C.F.R. § 1614.109(e). Accordingly, an administrative judge may not issue a decision without a hearing if he or she has concluded that holding an actual hearing would aid in the development of an appropriate factual record (i.e., one which contains all the information necessary to enable an accurate adjudication of the complaint on its merits).See, e.g., Brown v. United States Postal Service, EEOC Appeal No. 01992087 (Sept. 13, 2002). Second, our Petty decision pointed out, the administrative judge cannot issue a decision without a hearing unless there are no genuine issues of material fact.According to the U.S. Supreme Court, "the substantive law will identify which facts are material," and "only disputes over facts that might affect the outcome of the suit under the governing law [not unnecessary or irrelevant factual disputes] will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).[FN8] Assuming there are material facts in dispute, "summary judgment will not lie if the dispute ... is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the [party opposing summary judgment]."Anderson, 477 U.S. at 248.[FN9] At summary judgment, the threshold inquiry is "determining whether there is the need for a trial - whether, in other words, there are any ... factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Id. at 250.In the federal sector, the critical question is whether there is a need for a hearing - whether, in other words, there are issues of material fact that must be resolved by an administrative judge, acting as a jury would, because such issues may reasonably be resolved in favor of either the complainant or the agency. Consequently, the administrative judge cannot issue a decision without a hearing if the theoretically "reasonable administrative judge," acting as a fact finder, could find in favor of the party opposing the issuance of a decision without a hearing (typically the complainant). Third and similarly, we explained in Petty, the administrative judge may not issue a decision without a hearing if he or she actually has to find facts first to do so. According to the Supreme Court, "at the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson, 477 U.S. at 249. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."Id. at 255. Therefore, at summary judgment, the "evidence of the [party opposing summary judgment] is to be believed, and all justifiable inferences are to be drawn in his favor."Id.[FN10] In the hearing context, of course, the administrative judge is both judge and jury - legal arbiter and fact finder. In deciding whether to issue a decision without a hearing, the administrative judge must be careful not to conflate these two roles. For purposes of issuing a decision without a hearing, the administrative judge is acting only as legal arbiter and cannot determine the truth of any matter that may only appropriately be decided after a hearing has been held (albeit by the administrative judge then properly acting as a fact finder). Therefore, if the administrative judge in issuing a decision without a hearing cannot do so without first playing the role of jury (e.g., finding facts after assessing credibility, weighing evidence, drawing definitive conclusions, etc.), then the administrative judge must hold a hearing. See, e.g., Reyes v. United States Postal Service, EEOC Appeal No. 01A23975 (Nov. 4, 2002) (arguing that the evidence of the party opposing the issuance of a decision without a hearing must be believed); Miles v. Department of the Army, EEOC Appeal No. 01A04665 (Oct. 31, 2002) (noting that if a case can only be resolved by weighing conflicting evidence, rendering a decision without first holding a hearing would be inappropriate); Franklin v. United States Postal Service, EEOC Appeal No. 07A10101 (Sept. 25, 2002) (asserting that whenever the credibility of witnesses is ripe for challenge, there is a need for the type of "strident cross examination" only available via a hearing); and Engel v. United States Postal Service, EEOC Appeal No. 01A13103 (Aug. 29, 2002) (declaring that administrative judges should not conduct "trials by affidavit" in ruling on motions for a decision without a hearing). Fourth and finally, we ruled in Petty, the administrative judge 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, [FN11] 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. [FN12] 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). We found in Petty that the criteria outlined above had not been met. We first reviewed the discovery requests Petty made and the agency's responses to them, and found "serious deficiencies" in DSS's answers. We faulted the Petty AJ for finding that the agency's responses had been "proper and thorough" without explaining the rationale for this finding. In short, we said, Petty: tried to get the agency to supply him with various important documents and explanations, to no avail. When he turned to the AJ for help via a motion to compel - and explicitly stated in the motion that he needed the agency to cooperate "[f]or purposes of defining what issues are in dispute" - the AJ responded by denying his motion to compel ... and by entering judgment against him. However, he only should have rendered a decision without a hearing after ensuring that complainant had the chance to equip himself with the information needed to respond to the agency's motion. Instead, the AJ incorrectly denied complainant a hearing precisely because complainant had not presented enough evidence to prove his case - even though discovery and a hearing would have helped him gather such evidence. Petty, EEOC Appeal No. 01A24206 (July 11, 2003). For similar reasons, we ruled it was also inappropriate for the Petty AJ to conclude that there were no genuine issues of material fact outstanding at the time the agency made its motion. There was no way, we reasoned, for Petty "to prove that there were material facts in dispute because he was never given the chance to uncover evidence that presumably could have helped him do so."The Petty AJ erroneously "presumed away [Petty's] contentions that there were facts in dispute, and then prematurely concluded that no evidence of falsity existed."We concluded this was error since the Petty AJ never required the DSS "to turn over information which ... may have proven such pretext."Id. Finally, we stated in Petty, the Petty AJ: acted impermissibly as a fact finder in rendering his ruling. The agency's motion for a decision without a hearing contained a "Statement of Facts" which the AJ adopted. This statement of facts included the "fact" that "[n]one of the panel members [or] the selecting official ... considered race, age, sex, or prior [EEO] activity in the selection process."Agency's Motion for Decision without a Hearing (Apr. 1, 2002), at 2. It also asserted as "fact" that complainant "was not selected 'for a number of reasons to include his interview and his ongoing job performance did not reflect that he had moved forward with our new way of doing business."'Id. By indicating, as the AJ did in his decision, that the agency's motion "accurately identified the undisputed facts" the AJ credited the agency's version of the material facts. In doing so, the AJ inappropriately assessed the credibility of the various parties' explanations, weighed the evidence, and determined the truth of matters that should not have been decided until after hearing was held. Id. For these reasons, we ruled that the summary judgment decision at issue in Petty had to be vacated, and that Petty was entitled to a full hearing on the merits of his case. Application to this Appeal As noted above, the AJ's brief summary judgment decision in the current appeal stated: the [a]gency's motion correctly states the material facts and applicable legal standards. Further, there are no genuine issues of material fact or credibility that require resolution at a hearing, and thus, summary judgment in favor of the [a]gency is appropriate for the reasons stated in its Motion, i.e., the [c]omplainant failed to establish a prima facie case of discrimination because the relevant [a]gency officials involved in the present claim attested that they had no knowledge of [c]omplainant's previous EEO protected activity and the [a]gency articulated legitimate, nondiscriminatory reasons for its actions. In addition, [c]omplainant failed to present any other evidence to create an inference of discrimination. AJ's Initial Decision (Dec. 12, 2002). This decision contains all of deficiencies in the decision we vacated in Petty.As in Petty, the complainant here was seeking information (e.g., through Interrogatory # 1, Interrogatory # 2, Document Request # 1, and Document Request # 2) that might have been critical to her case. As in Petty, the agency was largely non-responsive to her pleas for answers (e.g., relying on blanket assertions that the discovery requests were too vague, overbroad, irrelevant, or unlikely to lead to admissible evidence - even though the rules of evidence are not even strictly followed in federal sector EEO proceedings).[FN13] And as in Petty, the AJ failed to require the agency to live up to its obligation to cooperate fully during discovery. See EEO MD-110, at 7-19, 7-(noting that during the hearing process, the "parties must cooperate with each other in honoring requests for relevant, non-repetitive documentary and testimonial evidence"). Indeed, in at least one important respect, this appeal presents an even more compelling case for reversal. In Petty, the administrative judge at least ruled (albeit erroneously) on the propriety of the DSS's response to Petty's discovery requests. In this case, the AJ's summary judgment decision does not even mention - much less carefully resolve - either of the two pending motions to compel complainant had filed. This was clear AJ error. See Petty, EEOC Appeal No. 01A24206 (July 11, 2003); cf. EEO MD-110 at 7-21 - 7-22 (providing that after a motion to compel has been filed, the administrative judge must "rule expeditiously on the request for discovery"). The AJ then compounded this error by concluding that complainant herself had not demonstrated the need for a hearing, notwithstanding that by not requiring SSA to respond properly to complainant's discovery requests (or at the least, by not explaining why the agency did not have to do so), the AJ effectively precluded complainant from being able to demonstrate genuine issues of material fact. The AJ reached this conclusion by accepting as true SSA's version of the facts. In its motion for summary judgment, the agency asserted as "fact" allegations such as that (1) SSA managers had no knowledge of complainant's prior EEO activity; and (2) the only reason it amended its original OPM request was because it had had insufficient notice and time to ensure that the original request accurately reflected agency ALJ needs. The AJ adopted these facts as the AJ's own in the AJ's summary judgment ruling. By doing so, the AJ was inevitably and inherently weighing the evidence, assessing the credibility of interested parties, and deciding that SSA's explanation of events was more believable than complainant's. This "fact finding" by the AJ was, as it was in Petty, inappropriate at the summary judgment stage. Indeed, as in Petty, it tainted the AJ's entire summary judgment decision. CONCLUSION SSA attempted to argue its way out of a hearing by urging that complainant's underlying claims have no merit. That may well be. We cannot not know that for certain, though, unless and until the AJ ensures that the record has been adequately developed for hearing, and that complainant has had ample opportunity for appropriate discovery. Once these criteria are met, nothing will preclude the agency from renewing its motion for summary judgment. In the meantime, we conclude that the AJ's finding of no discrimination - and the agency's final order implementing it - must be vacated.[FN14] This case is to be remanded for further proceedings in accordance with the ORDER below. ORDER The agency shall submit to the Hearings Unit of the appropriate EEOC field office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. 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 AJ (or whichever administrative judge is appointed) shall process 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 (K0501) 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 complainant. If the agency does not comply with the Commission's order, complainant may petition the Commission for enforcement of the order. See 29 C.F.R. § 1614.503(a). 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. See29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, 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."See29 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). If complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) The Commission may, in its discretion, reconsider the decision in this case if 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 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. See29 C.F.R. § 1614.405; EEO MD-110, at 9-18. All requests and arguments must 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 timely filed if it is received by mail within five days of the expiration of the applicable filing period. See29 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 the request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900) This is a decision requiring the agency to continue its administrative processing of complainant's complaint. However, if complainant wishes to file a civil action, complainant has the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that complainant receives this decision. In the alternative, complainant may file a civil action after one hundred and eighty (180) calendar days of the date complainant filed complainant's complaint with the agency, or filed complainant's appeal with the Commission. If complainant files a civil action, complainant 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 complainant's case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which complainant works. Filing a civil action will terminate the administrative processing of the complaint. RIGHT TO REQUEST COUNSEL (Z1199) If complainant decides to file a civil action, and if complainant does not have or cannot afford the services of an attorney, complainant may request that the Court appoint an attorney to represent complainant and that the Court permit complainant 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 complainant's 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: Stephen Llewellyn Acting Executive Officer Executive Secretariat FN1. As an initial matter, we acknowledge complainant's request on appeal that the "EEOC insure that all relevant documents from the hearing record are received and appropriately reviewed prior to the issuance of a decision in connection with this appeal."Complainant's Response to Agency's Reply to Complainant's Appeal (May 7, 2003), at 1 (emphasis omitted). More specifically, complainant asks that the EEOC ensure the following are part of the record considered on appeal: (1) Complainant's Memorandum in Opposition to Agency's Motion for a Decision Without a Hearing (Dec. 6, 2002), along with Complainant's Verified Statement Regarding Material Facts (Dec. 6, 2002); (2) Complainant's Motion for an Order Compelling Proper Responses to Discovery Requests (Sept. 23, 2002); and (3) Complainant's Motion for Order Compelling SSA to Properly Respond to Complainant's Second Interrogatories and Requests for Documents (Nov. 12, 2002). These documents are in the record on appeal and have been duly considered by the EEOC in evaluating this appeal. FN2. There is a difference between the "administrative law judges" at issue in the OPM Complaint and "administrative judges" that adjudicate federal sector EEO cases. The position of ALJ (originally called "hearing examiner") was created by the Administrative Procedure Act of 1946. There are approximately 1,400 ALJs currently serving about 30 different government agencies. See, e.g., . By contrast, AJs are EEOC employees (or independent contractors hired by EEOC) who work on federal sector EEO cases at or for the EEOC, specifically. FN3. There is no AJ ruling or order disposing of complainant's motion to compel in the record. FN4. Again, there is no AJ resolution of complainant's second motion to compel in the record. FN5. SSA does not argue on appeal, as it did at summary judgment, that SSA is not a proper defendant-agency to this action (i.e., that OPM is). We thus decline to consider or resolve this issue on appeal. Cf. EEOC Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999), at 9-10 (stating that "[a]lthough the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal"). FN6. See64 Fed. Reg. 37650 (July 12, 1999) (where the Commission explained, in the preamble to the existing federal sector regulations, that "the problem of meritless complaints can be addressed through appropriate application of ... traditional summary judgment," and that these complaints "should be resolved more quickly at earlier stages in the process using [such] existing legal standards ..."); and Celotex Corp. v. Catrett,477 U.S. 317, 327 (1986) (where the U.S. Supreme Court noted that Rule 56"is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules [of Civil Procedure] as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action"'); cf. Black's Law Dictionary (7th ed. 1999) (explaining that the purpose of summary judgment is to "allow[] the speedy disposition of a controversy without the need for trial"). FN7. To fill out the record, the administrative judge may have to order the agency to complete an investigation within a particular time frame, allow the parties to develop the record themselves through discovery, and/or issue orders for the production of documents or the taking of live testimony of witnesses. See29 C.F.R. § 1614.109(f)(1) (empowering administrative judges to order the production of documentary and testimonial evidence); cf. EEO MD-110, at 7-8 - 7-14 (providing a non-exhaustive list of an administrative judge's powers, including the authority to administer oaths, order discovery, require live testimony from witnesses, and impose sanctions on the parties). FN8. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 233-23 (1986) (citations omitted) (explaining that "a complete failure of proof concerning an essential element of [an opposing] party's case necessarily renders all other facts immaterial"). FN9. Cf. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted) (indicating that if "the record taken as a whole could not lead a rational trier of fact to find for the party [opposing summary judgment], there is no 'genuine issue for trial"'). FN10. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-151 (2000) (citations omitted) (stating that at summary judgment, "the court must draw all reasonable inferences in favor of the [party opposing summary judgment], and it may not make credibility determinations or weigh the evidence .... Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the [party favoring summary judgment] that the jury is not required to believe .... That is, the court should give credence to the evidence favoring the [party opposing summary judgment] as well as that 'evidence supporting the [party favoring summary judgment] that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses ...."') FN11. If the administrative judge proposes to issue a decision without a hearing on his or her own motion, his or her notice to this effect should list the undisputed material facts and order the parties to respond accordingly. If a party makes a motion for a decision without a hearing, the administrative judge should ensure that the motion is served on the opposing party and contains the same relevant information. Cf. EEO MD-110, at 7-14 - 7-15. FN12. See also Celotex, 477 U.S. at 326 (similarly acknowledging that any "premature" summary judgment motion "can be adequately dealt with under Rule 56[] ... which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the [party opposing summary judgment] has not had an opportunity to make full discovery"); and Fed. R. Civ. P. 56(f) (indeed stipulating that "[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just"); cf. Anderson, 477 U.S. at 257 (stating that a "plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment" - "even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery"). FN13. Because an EEOC hearing is designed to be less formal than a federal civil jury trial, neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence are binding in this administrative process, as they are in federal court. See, e.g., 29 C.F.R. § 1614.109(e) (stating that in conducting hearings, "[r]ules of evidence shall not be applied strictly ..."). FN14. Our ruling applies both to the AJ's initial December 12, 2002 order entering summary judgment and to the AJ's January 3, 2002 "reconsideration" decision (issued post-receipt of complainant's opposition to summary judgment). These two decisions were effectively identical - and equally deficient - and both must be vacated. Thus, we need not resolve the parties' dispute over whether the AJ had the authority to "reconsider" her initial decision and reissue a second one.