Wayne A. Morgan, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency. Appeal No. 0120072653 Hearing No. 320-2005-00215X Agency Nos. FSA-2005-00202; FSA-2005-00029 DECISION On May 23, 2007, complainant filed an appeal from the agency's May 4, 2007, final order concerning his equal employment opportunity (EEO) complaint claiming unlawful 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 appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). Since August 1990, complainant has worked as a District Director, GS-13, Step 10, Series 1101, at the agency's South Dakota Farm Service Agency, in Belle Fourche, South Dakota. In addition to his District Director duties, complainant was appointed as the Native American Outreach Coordinator in June 1997. On September 28, 2004, complainant filed a formal complaint. Therein, complainant claimed that the agency subjected him to discrimination and harassment based on national origin (Native American association)1 when: 1. In December 2003, management cancelled a conference entitled Statewide Unity in 2000 Tribal and USDA Conference; 2. On December 16, 2003, and January 22 and March 19, 2004, his supervisor referred to him in a derogatory manner; 3. Management continuously denied him training; 4. In April 2004, management tried to intimidate him into taking a County Executive Director (CED) position in Harding County by threatening to redistrict and take away his counties; 5. Since April 2004, management failed to provide him with information on District Directors' meetings and the minutes of meetings he did not attend, and denied him the right to attend district director monthly meetings and conferences; and 6. On May 3, 2004, management decreased his duties as the Native American Liaison/Outreach Coordinator and reassigned the oversight of his District counties to other district directors. On April 8, 2005, complainant filed a second formal complaint. Therein, complainant claimed that the agency subjected complainant to retaliation for prior EEO activity when: 7. S1 demanded special activity reports from only him; 8. S1 excluded him from travel to attend meetings; 9. S1 excluded him from travel to North Dakota in 2005; 10. S1 excluded him from telephone conference calls and receipt of job-related e-mails; 11. S1 excluded him from training on "E-Gov;" 12. S1 prohibited him from holding Unity meetings; and 13. S1 delayed completion of his performance appraisal. At the conclusion of the agency's investigation, complainant was provided with copies of the reports of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 26, 2005, complainant filed a request to amend and consolidate the national origin and retaliation complaint with additional allegations of intimidation, harassment, interference and coercion of one of complainant's witnesses. On November 5, 2005, the AJ granted the request to consolidate the national origin and reprisal complaints. However, the AJ denied the request to amend the complaint to include complainant's allegations of the agency intimidating, harassing, interfering and coercing one of complainant's witnesses. The AJ extended discovery to continue until January 26, 2006. Thereafter, over complainant's objections, the AJ granted the agency's February 13, 2006 motion for a decision without a hearing. On August 6, 2006, the AJ issued a decision, finding no discrimination. In his decision, the AJ adopted the facts as provided in the agency's motion for a decision without a hearing. The AJ incorporated some of complainant's objections to those facts as stated in his Memorandum of Law in Opposition to Responding Agency's Motion for Summary Judgment. The AJ determined that complainant failed to establish a prima facie case of national origin discrimination because he failed to present evidence of a similarly situated employee, not in his protected class, who was treated differently than he was, or raise some other inference of discrimination. The AJ further found that the agency articulated legitimate nondiscriminatory reasons for its actions as stated in the agency's motion accordingly. The AJ determined that complainant failed to proffer evidence to show that those reasons were a pretext for discrimination. The AJ also determined that complainant failed to establish a prima facie case of retaliation. The AJ noted that with the exception of preparing a special report for S1, E-Gov training and delay of a performance appraisal, the remaining issues occurred or began prior to complainant's contact with an EEO Counselor on July 1, 2004. The AJ also found that complainant had not shown that a nexus existed between his EEO activity and the issues that occurred subsequent to EEO counseling. Taking the evidence as a whole, the AJ found that the working relationship between complainant and S1 was quite strained, and this strain was present long before complainant ever engaged in EEO activity. The AJ found that the agency articulated legitimate and nondiscriminatory explanations for its actions. Finally, as to whether there was harassment based on either national origin and/or retaliation, the AJ found that no genuine issues of material fact existed. Though the AJ found that complainant met the first two elements of the prima facie case for harassment, the AJ determined that complainant failed to establish any evidence showing that his association with Native Americans or prior EEO activity was related to the agency's actions. The agency subsequently issued a final order adopting the AJ's finding of no discrimination. 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); EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. Department of Defense, 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). After a careful review of the record, we find that the AJ erred when he issued a decision without a hearing. We first note that a review of the AJ's decision reveals that he adopted the agency's statement of facts in its Motion for Summary Judgment. Although the AJ included in his decision the disputed or supplemented facts asserted by complainant in his brief in opposition, we find that the AJ weighed the evidence, assessed the credibility of parties, and decided that the agency's explanation of events was more believable than complainant's. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Further, when issuing a decision without a hearing, the AJ should consider the facts in the light most favorable to complainant. Anderson, 477 U.S. at 255. We find the AJ failed to do so in this case. Taking the facts in the light most favorable to complainant, we find that genuine issues of material fact exists such that a hearing is warranted. The Commission notes that S1 asserted that he did not discriminate against complainant based on his national origin or in retaliation for prior EEO activity. However, the affidavit testimony of other witnesses raises a dispute over whether S1 was motivated by discriminatory or retaliatory animus. We find it significant that the record is not sufficiently clear regarding S1's intentions. Although S1 provided legitimate, nondiscriminatory reasons for his actions, we find that given the record evidence, a genuine issue exists as to the credibility of S1's statements. Specifically, S1 denied that he used derogatory terms to describe the Native Americans or called them "whining Indians." However, an Executive Officer (EO), who was present at a December 2003 meeting at S1's request, testified that S1 did not directly swear at complainant but that the EO stated that "[i]f I remember, it was more of a use of an adjective." EO claimed he could not recall the adjective. Further, other witnesses corroborated that complainant had told them that S1 had used profane language with complainant. Therefore, we find that this raises a direct conflict that must be resolved after a hearing. Accordingly, a genuine issue of material fact is in dispute regarding the nature of the statements made by S1 to complainant with regard to Native Americans. Moreover, the record contains an affidavit from a District Director (DD) who corroborates many of complainant's contentions. The AJ failed to address this testimony in his finding that no genuine issues of fact were in dispute. Specifically, we note that DD provided affidavit testimony that he felt that S1's actions gave the perception that S1 was motivated by complainant's association with Native Americans and contradicts S1's assertions such that genuine issues of material fact are in dispute. Although S1 contends that the Statewide Unity in 2000 Tribal and USDA Conference was not cancelled, this action is not clear from the record. Nevertheless, it is clear that S1 postponed it several times. S1 stated in his affidavit that the delay was attributable to legitimate reasons, as well as complainant's failure to act promptly in scheduling it. However, DD stated that the only conclusion one could come to regarding S1's constant rescheduling of the conference was that "[S1] was mad at [complainant]. It really gave the appearance that he was trying to get at [complainant]. According to DD, S1 was upset with complainant because the previous year, a friend of S1's had to answer some difficult questions on the Non-insured Assistance Program (NAP) at the conference. S1's friend apparently felt that that the tribes were too aggressive in their questioning. As such, we find that a dispute exists as to why S1 cancelled or postponed the conference. Further, DD stated that he never heard S1 make negative remarks about Native Americans, however, he believed that complainant was being discriminated against due to his association with Native Americans. DD testified in his affidavit that S1 came into his office in April or May 2004, and told him that complainant was "not a team player," and proffered three reasons to reassign complainant. The first reason was that complainant had invited the tribes to a NAP meeting that was held. The second reason was that complainant "couldn't handle [the female CED]." S1's final reason was that S1 felt that complainant should have helped convince the County Committee to hire a specific person for the CED vacancy in Harding County. DD testified that he informed S1 that he disagreed that these incidents were complainant's fault. DD stated in his affidavit that "[i]t would certainly be impossible for any other district director to have what has happened to [complainant] in dealing with Native Americans. [Complainant] has been dealing with the tribes and two of three of the reasons that [S1] gave me for reassigning [complainant], dealt with tribes. It certainly gives the perception to everyone that it is due to his association with Native Americans." DD stated that complainant was the only district director at that time to work with all the tribes. As such, we find that a dispute exists as to why S1 reassigned complainant and what his motivation was at the time. DD also provided that there was an incident where "the majority of [complainant's] producers who were entitled to [payment by the agency] were Native-American, and that was really the beginning of it. I think [S1] thought [complainant] should not have argued [on their behalf]." DD further provided "I do not know how you could remove the appearance of discrimination association because [complainant] has been the liaison before [S1] even came [to the agency]." Accordingly, a dispute exists as to whether S1 bore any discriminatory animus towards complainant. Turning to complainant's retaliation allegations, complainant argued that no other district director was required to submit special activity reports. Although S1 stated that other district directors submit other types of reports, the other district directors all provided affidavit testimony that they had never been asked to provide special reports or provide the numbers of their contacts as complainant was required to do. As such, the record reflects that a dispute exists with regard to this claim. With regard to the E-Gov training, S1 stated that district directors received only an overview of E-Gov training and that they were not intended to receive training. However, the other district directors provided affidavit testimony that they received additional training. Additionally, DD stated in his affidavit that a district director conference agenda for November 9-10, 2004, provided that two hours of E-Gov Training were scheduled. DD believed they were provided handouts which included detailed instructions. Therefore, S1's claim that complainant was provided the same training as the other district directors' is in dispute. DD further stated that complainant was restricted from attending DD sessions and some training from May through January of 2005, which DD believed complainant should have attended, even though S1 stated that complainant was not required to attend. Accordingly a material dispute exists based on the evidence in the record with regard to this claim. With regard to S1 delaying the completion of his performance appraisal, the EEO Counselor noted that when she spoke to S1, he stated that he had discussed job performance at least three times with complainant but had not documented any of the discussions in writing. S1 explained in his affidavit why there was a gap between complainant's mid-year performance appraisal in April of 2004 and its being entered into the ICAMS system in September of the same year. However, there is no explanation offered for why the other writings found throughout the record were created after the fact, as such, the record is not sufficiently developed to make a determination on this claim. Moreover, we find that the record is not sufficiently developed to determine what S1's motivations were without improperly weighing the evidence. The record is additionally incomplete since the affidavit testimonies of many of the witnesses are not sufficiently detailed or comprehensive such that complainant is provided a meaningful opportunity to rebut each of the agency's articulated reasons. Accordingly, after a careful review of the record, the Commission vacates the agency's final order and remands all thirteen claims of disparate treatment and hostile work environment because genuine issues of material fact are in dispute as to S1's motivation for his actions. The agency is required to comply with the order below. ORDER Within thirty (30) calendar days of the date this decision becomes final, the agency is ordered to submit a request to the Hearings Unit of the Denver Field Office for scheduling of a hearing. The agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within 30 calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408) 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 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 (M0408) 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), 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 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. 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 (R0408) 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 (Z0408) 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 that the Court appoint an attorney to represent you and that the Court 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 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 ____8-29-2008___ Date 1 Complainant's spouse is Native American. Complainant claims that he was subjected to adverse employment actions and harassment due to his association with his spouse and other Native Americans. ?? ?? ?? ?? 2 0120072653 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 9 0120072653