Rusty C.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency. Appeal No. 0120114237 Agency No. 2009JCS042 DECISION Complainant filed a timely appeal from the Agency's October 4, 2011, final order (FAD) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act (ADEA) as amended, 29 U.S.C. § 621 et seq.2 For the following reasons, the Agency's final order is VACATED and the complaint is REMANDED for a hearing. ISSUES PRESENTED Did the Administrative Judge (AJ) properly issue a decision without a hearing finding that Complainant was not subject to unlawful reprisal? BACKGROUND Complainant worked as a Technical Information Specialist at the Agency's Joint Staff (J-7), Directorate for Operational Plans and Joint Force Development, Joint Education and Doctrine Division in Vienna, VA. Complainant participated in EEO activity prior to the instant complaint on February 6, 2006, when he filed a formal complaint of age discrimination against the Agency alleging that he was subjected to a hostile work environment because of his age. AJ Decision, P. 2. As the responsible management officials in that complaint, Complainant named S2, his second-line supervisor, along with his former first-line supervisor. AJ Decision, p. 2. S1 became Complainant's first-line supervisor in June of 2007 and learned of Complainant's prior EEO activity at that time. AJ Decision, p. 2. A hearing for the prior EEO case took place on February 11, 2009. Complainant's Brief in Support of Appeal (Complainant's Brief), p. 6. After the hearing, Complainant alleges that S1 and S2 began to engage in behavior constituting a hostile work environment. Complainant's Brief, p. 6. On July 23, 2009, Complainant filed the EEO complaint giving rise to the present case, alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under the ADEA when: 1. On March 18, 2009, his first-line supervisor, S1, slammed a door in his face; 2. On March 25, 2009, his second-line supervisor, S2, made a comment about him "staying on the reservation" (a reference to his Native American ancestry); 3. On March 31, 2009, S1 subjected him to a tirade regarding his performance; 4. On April 21, 2009, S1 placed him on indefinite administrative leave; 5. On May 12, 2009, he was issued a notice of proposed three-day suspension by S1 for lack of candor, disrespectful conduct, and failure to follow instructions (S2 was the deciding official); and 6. Complainant was threatened by police action, humiliated, and embarrassed on a number of occasions in front of witnesses and false statements were made about his mental state. Complainant's security clearance was officially suspended on April 29, 2009, which resulted in him being placed on administrative leave. AJ Decision, p. 3. Subsequently, Complainant was formally notified on August 6, 2009, of S1's proposal to indefinitely suspend him from pay and duty status based on his April 29, 2009, suspension from access to classified information. ROI, p. 10. Complainant voluntarily retired before the indefinite suspension from pay and duty status went into effect. ROI, p. 10. At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's January 19, 2011, motion for a decision without a hearing and issued a decision without a hearing on August 12, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant first requests a hearing for a comprehensive hearing of the facts, including facts in the documents that have been withheld or censored by the Agency. Complainant's Brief, p. 7. Second, Complainant requests that the Agency produce documents he requested during discovery that were not produced. Complainant's Brief, p. 5. Next, Complainant alleges that the facts regarded by the AJ as "undisputed" are disputed. Complainant's Brief, p. 5. The Agency asserts that Complainant does not show that genuine issues of material facts exist for a hearing. Agency's Brief in Opposition to Appeal (Agency's Brief), p. 4. The Agency asserts that the documents Complainant offers on appeal do not dispute any of the facts the AJ addressed in his decision. Agency's Brief, p. 4. The Agency further asserts that Complainant has not shown that management's actions were due to reprisal discrimination. ANALYSIS AND FINDINGS The following circumstances dictate whether an AJ may issue a decision without a hearing. First, an AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. § 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. Second, an AJ must be certain that the investigative record has been adequately developed. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Third, the AJ may not issue a decision without a hearing if he or she actually has to find facts first to do so. Id. 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. Anderson, 477 U.S. at 255. Fourth, the 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. Petty, EEOC Appeal No. 01A24206. I. Genuine Issues Of Material Fact Remain In Dispute Genuine issues of material fact require a hearing in this case, as evinced by the record. Throughout the period in which Complainant claims a hostile work environment, there are documents such as e-mails and memorandums detailing how events transpired from the perspectives of both the Complainant and supervisors within the Agency. First, regarding Complainant's allegation that he was placed on indefinite administrative leave on April 21, 2009, the record indicates that Complainant was placed on administrative leave because of an investigation into his security clearance and ultimate suspension of his clearance, and there were no available positions not requiring a clearance.3 (ROI, p. 124) (Memorandum from S1 stating that there are no unclassified, non-sensitive, duties for Complainant to perform, and as a result Complainant will be suspended indefinitely from his position). The record clarifies that Complainant was not placed on indefinite leave on April 21, 2009, but that he was asked to leave the workplace on that date, and his security clearance was suspended on April 29, 2009, after which he was prohibited from entering classified workspaces, and had to remain at home on administrative leave. ROI, p. 9 (testimony of S2). The reasons why S1 was placed Complainant on administrative leave remain in dispute. S1 indicated that he doubted Complainant's candor, honesty, conduct, and his ability to protect classified information. ROI, p. 93 (Notice of Proposed Suspension to Complainant written by S1). One of the reasons was because Complainant was in the office unauthorized and on weekends, and did not disclose this information. Id. This resulted in Complainant being placed on administrative leave, and also a three-day suspension proposed on May 12, 2009. ROI, p. 92 (May 12, 2009 memo from S1 proposing a three day suspension); ROI, p. 115 (April 28, 2009 memo from S1 which was relied on to suspend Complainant's security clearance leading to an indefinite suspension from his position). Complainant disputes the fact that he was in the office unauthorized and on weekends in contending that prior to the weekend in question, April 11 and 12, 2009, his office received no oral or written instruction forbidding workers from staying late in the office on workdays or to work on weekends, which was a common and long-standing practice. Complainant's Brief, p. 4. S1 also indicates that the instruction not to be in the office without approval on weekends was given on April 17, 2009, after he became aware that Complainant was in the office the prior weekend. ROI, p. 93. However, in a memorandum to the Director of Joint Operations Plans and Joint Force Development Directorate where S1 sought review of Complainant's security clearance, S1 characterized Complainant's presence in the office as "unauthorized access to the workspaces." ROI, p. 83. To the extent that S1 claims Complainant lied about being in the office, Complainant disputes this fact in a documented letter to S2 where he states that he informed S1 that, in addition to being in the office on April 11, 2009, there were other weekends he was in the office, but he did not recall the exact dates. ROI, p. 104. Complainant claims that in conclusion to that discussion, S1 asked him to send an e-mail stating that he knew of "no other dates." Id. Complainant subsequently sent S1 the requested note, which S1 used as a basis for doubting Complainant's candor and referring him for suspension and placing him on administrative leave. ROI, p. 104; ROI, p. 89. Second, the occurrence of various events that are part of Complainant's hostile work environment constitute genuine issues of material fact in dispute. Regarding Complainant's claim that he was threatened with police action, humiliated and embarrassed, and false statements were made about his mental state, Complainant documented these instances of conduct, but the Agency denies that they occurred. For example, in an April 26, 2009, memorandum to the Chief of Personnel Services, Complainant requested "relief from office abuse," stating that on April 21, 2009, S1 ordered him to leave the office, stating that he was placed on administrative leave/suspended, and when Complainant asked to speak with personnel officials, S1 responded that Complainant must "leave at once or be forcibly evicted by police." ROI, p. 74. Complainant also indicated in the April 26, 2009, memorandum to the Chief of Personnel Services that he spoke to two individuals at the personnel office. ROI, p. 74. Complainant documented that on April 23, 2009, he spoke to one individual who told him that his supervisors stated he was like a "human bomb." ROI, p. 74. Regarding Complainant's claims that a supervisor slammed a door in his face and that he was yelled at about staying on a "reservation" in reference to his Native American ancestry, Complainant also documented these occurrences in an April 5, 2009, memorandum to the Agency's Personnel Support Division. ROI, p. 70. S1 also documented the meeting during which Complainant alleged that the incident occurred and his account differs from Complainant's account. See, e.g., ROI, p. 80. Finally, as explained below, the record is not adequately developed, depriving Complainant of the opportunity to show that further genuine issues of material fact are in dispute. Therefore, a decision without a hearing was not appropriate because there are genuine issues of material fact in dispute. II. The Investigative Record Was Not Adequately Developed Complainant requested several documents for inclusion into the ROI; however, the Agency failed to produce them. Furthermore, the record does not contain sufficient information regarding the circumstances that led to Complainant being referred to have his security clearance examined, which led to him being placed on indefinite administrative leave. In one request, Complainant asked for the "Joint Staff Security Office's investigative report of my alleged conduct on 21 April 2009." Complainant's Brief, p. 2. The Agency objected that the request was "overburdensome," "irrelevant," and "calls for privileged information" and that Complainant failed to provide specific information about the report he was requesting, such as the author and date. Complainant's Brief, p. 2. Such a report of the Agency findings is a critical discovery request which would inform whether S1 and S2's reasons for referring Complainant to authorities to have his clearance examined, and placing him on administrative leave, were pretext for unlawful reprisal. See Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 0720060035 (July 28, 2009) (finding that the suspension of Complainant's security clearance was discriminatory because it was based on a supervisor's willful retaliatory lies and that the discriminatory suspension was the proximate cause of a subsequent 24-day suspension and ultimate relocation to another state); see also Chatlin v. Department of the Navy, 05900188 (June 1, 1990) (while the Commission will not review the substance of security clearance decisions, it has authority to review an agency's decision to initiate review of a complainant's security clearance status, as this decision is not the result of any substantive decision making process). The Agency stated that a report based on Complainant's search terms did not exist, but the Director of Operations Plans and Joint Force Development indicated that he considered materials submitted from Complainant's supervisors, the alleged discriminating officials, in reaching his decision, and S1 indicated that Complainant "was reported to the Joint Staff Security Office for further investigation." Complainant's Brief, p. 3; ROI, p. 80 (Memorandum For Director, Joint Operations Plans And Joint Force Development Directorate); ROI, p. 118-119 (memorandum from Director of Operational Plans and Joint Force Development). The Director also noted that he based his decision to suspend Complainant's clearance "solely on the facts and information provided to him by [S1] and [S2], coupled with the advice and guidance they received from Human Resources and Joint Staff Security." ROI, p. 35 (EEO counseling report). Further information showing what information was relied on in initiating the clearance investigation would be informative. Complainant also requested that an April 22, 2009, memorandum written by S1 be included in the ROI, but it does not appear in the record. Complainant's Brief, p. 2. The subject of the memorandum was a missing personnel file, which allegedly occurred on the day that Complainant was in the office, allegedly unauthorized. Complainant's Brief, p. 2. In an April 28, 2009, memorandum to the Director of Operations Plans and Joint Force Development detailing Complainant's ability to protect classified information, S1 indicated that he "drafted a separate memorandum which highlights the loss of a sensitive personnel file at the time [Complainant] had unsupervised and unauthorized access to the workspace." ROI, p. 83. Complainant's clearance was suspended a day after this April 28, 2009, memorandum, which directly resulted in him being placed on administrative leave. Complainant's Brief, p. 3. Complainant was able to obtain a memo which discusses the loss of the sensitive personnel file via the Freedom of Information Act (FOIA). Complainant's Brief, p. 3. The author, presumably S1, allegedly states, "I have not and did not accuse [Complainant] of taking this file." Complainant's Brief, p. 3. This memorandum, garnered through FOIA, does not appear in the ROI, but would provide insight into what Complainant was accused of that led to S1 and S2 reporting him to have his clearance reviewed, and placing him on administrative leave. Finally, Complainant requested that a letter from his representative in response to his duty and pay suspension be included in the ROI. Complainant's Brief, p. 5. This document was not included in the ROI and may assist in Complainant showing that genuine issues of material fact are in dispute. These deficiencies in the record, mainly the lack of information about circumstances that led to Complainant being recommended for suspension of his security clearance and ultimately being placed on administrative leave, render the complaint inappropriate for a decision without a hearing. Without this information, it cannot be determined whether the Agency's stated reasons for the adverse actions were pretext for reprisal discrimination. III. The AJ Impermissibly Found Facts In Favor Of The Agency The AJ impermissibly found facts in favor of the Agency. Under the section entitled "undisputed facts," the AJ states that "on April 21, 2009, "[S1] sent Complainant home after he had become disruptive." AJ Decision, p. 3. Complainant disputes that he was ever disruptive. Finally, the AJ credited the Agency's version of the facts in stating that "Complainant failed to offer any sworn testimony to support these allegations" in relation to Complainant's contention that he was threatened with police action, humiliated and embarrassed on a number of occasions in front of witnesses, and false statements were made about his mental state. AJ Decision, p. 7. There is documentation in the record substantiating Complainant's version of events, as there is substantiating the Agency's version of events. In order to reach a decision without a hearing, the AJ assessed the credibility of the various parties' explanations and weighed the evidence. See, e.g., Petty, EEOC Appeal No. 01A24206 (finding that the AJ improperly weighed evidence when AJ credited version of facts in Agency's motion). Therefore, a decision without a hearing was not appropriate. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency's FAD, fully implementing the AJ's finding that Complainant was not subject to reprisal discrimination, is VACATED. The complaint is REMANDED for a hearing. 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 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 (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 11-12-2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant filed his appeal prior to the Agency issuing a FAD; however, with the issuance of the FAD, Complainant's appeal became ripe for disposition. 3 The record reveals that Complainant alleged that he was placed on administrative leave in reprisal for prior EEO activity. See, e.g., ROI, p. 33 (EEO Counselor's report stating that Complainant alleged he was "placed on forced administrative leave"); ROI, p. 7 (statement of claims and issues to be investigated indicates that whether Complainant's supervisor placed him on indefinite administrative leave in reprisal will be investigated). Even though the date of the allegation is incorrect, Complainant's claim is one of hostile work environment in reprisal for prior EEO activity. Complainant clearly alleged that he was placed on administrative leave for an indefinite period of time, and the Agency was under an obligation to investigate the claim. EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chapter 5, § V, Conducting the Investigation (Aug. 5, 2015). The Agency's response that Complainant was not placed on such leave on April 21, 2009 is not adequate. See, e.g., (ROI, p. 9); AJ Decision, p. 7 (Stating that the Agency provided a legitimate, non-discriminatory, reason when they claimed that the correct date that Complainant was placed on leave was April 29, 2009, but that Complainant did not seek to amend his letter of acceptance or amend his complaint). On remand, Complainant's indefinite placement on administrative leave should be considered as part of his hostile work environment claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2011-4237 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013