U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathy M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120140008 Hearing No. 540-2012-00050X Agency No. FS-2010-00849 DECISION Complainant timely filed an appeal from the Agency's final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part the Agency's final order; and VACATES the remainder of the Agency's final order. ISSUES PRESENTED The issues presented are (1) whether the Administrative Judge (AJ) properly dismissed a portion of Complainant's complaint for untimely EEO Counselor contact; (2) whether there are genuine issues of material fact that require a hearing before an AJ; (3) whether the AJ properly found that the Complainant did not establish a discriminatory hostile work environment based on her protected classes as alleged; and (4) whether the AJ properly found that the Agency did not violate the confidentiality requirements of the Rehabilitation Act. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a District Wildlife Biologist, GS-11, at the Agency's Glenwood Ranger District, Gila National Forest, in Glenwood, New Mexico. Report of Investigation (ROI), at 91. Complainant began work there in September 2006. The District Ranger was Complainant's first-level supervisor (S1) (female). Id. at 92. According to Complainant, between October 2006 and early 2008, S1 behaved as if she were infatuated with Complainant and always gave her a quick smile and "behaved giddy" in her presence. Id. at 122-24. Complainant also reported that S1 required Complainant to drive with her (S1) to various locations alone. Id. Complainant indicated that although she never experienced any harassment on the trips, driving with S1 was not part of her job description. Id. Complainant also reported that, on one occasion, S1 called out to her and said, "Good morning, Beautiful." Id. Complainant additionally reported that one day in 2006, after coworkers had gone home, S1 approached her and steered the conversation towards sexual preferences. Id. Therein, in an effort to make clear that she was not interested in S1, Complainant said to S1 that she would not mind if George Clooney or Brad Pitt appeared at her front door. Id. Complainant then averred that S1 said that she (Complainant) should stay away from certain bars in the area, alluding that the men were "well-used and diseased." Id. Complainant reported that S1 then said that she (S1) had had a hysterectomy, but asked the surgeon to leave the "fun parts" in so she could still have fun. Id. S1 also apparently offered to take care of Complainant's cats and wanted Complainant to throw a house-warming party at her home. Complainant felt that S1 exhibited lesbian behavior towards her, making efforts to make overnight, out-of-town trips with her and stay in the same hotel. Id. Complainant stated that she was unwilling to make overnight trips with S1 alone. Complainant indicated that although she felt uncomfortable by S1's behavior, she did not report it to the Forest Supervisor. According to the Range Management Specialist (male), S1 would similarly make sexual comments in front of him also, which he believed S1 apparently thought were funny. Id. at 277. The Range Management Specialist felt that S1's comments were not funny and inappropriate in the workplace. Id. Complainant also felt that S1 demeaned and belittled her in front of coworkers, not treating her professionally with dignity and respect. Complainant asserted that she was the target of S1's constant putdowns, insults, and nasty comments. Id. at 121. The Range Management Specialist, however, averred that S1 would bully all employees, including him. Id. at 274-75. The Range Management Specialist stated that S1 had a tendency to finish the sentences for employees and demeaning them through "snide comments." Id. The Range Management Specialist stated that S1 also picked on him during staff meetings, calling him dumb or stupid, and further called other employees stupid as well. Id. A Wildlife Biologist (male) averred that S1 would demean and insult him as well in the same manner. Id. at 284-85. Complainant also took issue with S1's long performance evaluations that lasted in excess of two hours. Id. at 31. Complainant asserted that, during the evaluations, S1 criticized her for minor infractions, such as slamming the file cabinet shut, venting about human resources, and complaining about the computer help desk. Id. at 136. Complainant averred that, although she received "fully successful" ratings, she left her performance sessions with S1 a very disheartened employee. Id. at 122. The Range Management Specialist also averred that, based on his own personal experience, S1's performance evaluations are "completely ridiculous." Id. at 275. The Range Management Specialist specifically indicated that S1 would usually spend an exorbitant amount of time belittling employees about their performance, pointing out all the things the employee had done wrong during the rating period. Id. The Range Management Specialist averred that, during his performance evaluation, S1 kept providing him with negative comments. Id. It was the Range Management Specialist's general belief that S1 had a bad attitude and generally made people miserable. Id. at 276. The Range Management Specialist also averred that S1 had given him unrealistic dates to complete assignments similar to Complainant's Id. The Wildlife Biologist (male) averred that he was also similarly subjected to S1's extremely long evaluations. Id. at 285. The Wildlife Biologist stated, that because of S1's horrible leadership style he hated coming into work. Id. On September 10, 2009, Complainant suffered on-the-job injuries to her back, head, and pelvis when a horse repeatedly slammed into her while she attempted to load the animal into its stock trailer. Id. at 112. Complainant indicated that S1, rather than express concern about her injury, imposed a work deadline upon her to complete a project by September 30, 2009. Id. at 113. Complainant added that S1 threatened her with a poor evaluation if she failed to meet the deadline for the project. Id. Complainant felt that S1's attitude and behavior towards her injury prevented her from filing the CA-1 (Federal Notice of Traumatic Injury) form within the required 24 hours as required under Agency policy. Id. at 115. Complainant also testified that on March 3, 2010, S1 interfered with her medical care by demanding that she (Complainant) drive six hours one-way to see her surgeon, so that she (S1) could issue her a mid-year performance evaluation the following day. Id. at 42. Complainant stated that she told S1 that this was not possible because driving aggregated her injury. Id. After hearing about Complainant's injury, the Support Service Specialist instructed Complainant to immediately file a CA-1, but Complainant reportedly responded that she did not want to file a CA-1 form. Id. at 290-91. The Support Service Specialist averred that, as of June 23, 2011, Complainant still had not filed a CA-1 form with their Ranger District. Id. at 291. The Support Service Specialist indicated that Complainant, being at the GS-11 level, and also a supervisor, should have been aware of the requirement and the process for reporting an on-the-job injury. Id. Complainant went on extended medical leave during the period March 9 through June 12, 2010, for back surgery and recovery. Id. at 59. During her extended leave, the Calaveras District Ranger with the Stanislaus National Forest telephoned S1 with the information that Complainant had been selected for a Wildlife Biologist position with the Agency's Calaveras Ranger District, Hathaway Pines Station, in California. During the telephone call, S1 informed the District Ranger that Complainant was out on medical leave, but that she (Complainant) could be reached on her cell phone. Id. at 303. In June 2010, Complainant left S1's supervision and accepted a position at the Calaveras Ranger District, Hathaway Pines Station. Id. at 60. After Complainant left, S1 sent Complainant an e-mail on July 14, 2010, asking Complainant if certain reference books she left behind where hers. ROI, at 105. Complainant felt that S1's e-mail was an accusation that she (Complainant) actually stole the books from the front office library. Id. In August 2010, Complainant became aware that S1 had given a less-than-positive reference about her to the Resource Management Program Area Leader (RPM Area Leader) at the Calaveras Ranger District, Hathaway Pines Station. According to the RPM Area Leader, S1 filled out the reference check form for Complainant, and answered the question, "[W]hat do you see as this employee's challenges" with the response, "[A]bility to accept criticism and tolerate others." Id. at 299. The RPM Area leader indicated that, other than that, there was nothing negative about Complainant's performance and everything else was actually positive. Id. A Supervisory Wildlife Biologist with the Coconino National Forest in Flagstaff, Arizona stated that Complainant also applied for a position in his office, but S1 provided a negative reference check for Complainant. Id. at 295. The Supervisory Wildlife Biologist averred that S1's negative reference may have had some influence on Complainant not getting the position, but the main reason she was not selected was because the selectee had more experience and performed better during the interview process. Id. On August 4, 2010, Complainant contacted an EEO Counselor and filed an EEO complaint on November 8, 2010, alleging that the Agency subjected her to discrimination and hostile work environment/harassment on the bases of sex (female), disability, and reprisal for prior protected EEO activity when: 1. Between October 2006 and early 2008, S1 subjected her to unwelcome sexual advances and sexually suggestive remarks; 2. From early 2008 until March 2010, S1 retaliated against her for rejecting her sexual advances, for "bullying and denigrating" her, and subjecting her work to heightened scrutiny, including: a. In August 2008, insulting and demeaning her in front of her coworkers; b. In August 2008 and September 2009, subjecting her to performance valuations that lasted more than two hours during which she was criticized for minute infractions, such as slamming file drawers; c. On September 11, 2009, berating her for contacting a coworker to discuss a matter involving an Agency-owned horse; d. In March 2010, giving her assignments with unreasonable completion dates; 3. Between September 2009 and March 2010, after she injured her back at work, S1 trivialized her injury, attempted to prevent her from seeing a doctor and filing a Workers Compensation Claim, and tried to interfere with her subsequent medical care; 4. On July 14, 2010, S1 accused her of attempting to steal reference books from her former duty station; 5. On October 5, 2010, she learned that S1 had given a negative job reference to Coconino National Forest personnel and shared confidential medical information about her with prospective employer, Hathaway Pines Station in Stanislaus, California. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 4, 2012, motion for a decision without a hearing and issued a decision without a hearing on July 17, 2013, in the Agency's favor. The AJ initially dismissed claims 1, 2, and 3 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The AJ determined that Complainant's initial EEO Counselor contact was on August 4, 2010, which he found to be beyond the 45-day limitation period. The AJ found that claims 1, 2, and 3 were discrete claims, separate and apart from the timely raised claims 4 and 5. The AJ noted that untimely discrete issues cannot be part of a timely harassment claim. Further, the AJ assumed, arguendo, that even if claims 1, 2, and 3 were timely raised, Complainant nonetheless did not establish disparate treatment or a hostile work environment. The AJ specifically found that Complainant did not establish that she was an "individual with a disability" under the Rehabilitation Act. The AJ also determined that S1 did not breach the confidentiality provisions of the Rehabilitation Act with respect to claim 5. The AJ noted that it is undisputed that S1 disclosed to another Agency District that Complainant was on medical leave, but this act alone by S1 did not reveal Complainant's confidential medical information and violate the Rehabilitation Act. The AJ noted that S1 did not reveal to others that Complainant suffered from back injuries nor disclose that she had back surgery. In addressing claims 2, 4, and 5, the AJ stated that S1 treated male employees in the same manner as she treated Complainant. The AJ specifically noted that male employees were also subjected to long performance evaluations, insults, and unrealistic assignment due dates. In specifically addressing claim 4, the AJ noted that it was undisputed that in S1's July 12, 2010, e-mail, Complainant was not accused of stealing the books in question. The AJ also found, with respect to claim 5, that there was no evidence that the negative tone of S1's job reference for Complainant was pretext for discrimination based on her protected classes. The AJ also found that the record did not show that S1's comments to Complainant were of a sexual nature or were related to Complainant's gender. The AJ noted that Complainant alleged that S1 talked about her hysterectomy and once stated, "Good Morning, Beautiful." The AJ also noted that Complainant further alleged that S1 seemed infatuated with her, giving her quick smiles, displaying giddy behavior, and seeking her company throughout the fall of 2006. The AJ found that, even assuming these acts occurred as alleged, there was no evidence that they were abusive or based on her protected classes so as to constitute as a hostile work environment. Also, in finding no reprisal with regard to claims 1-3, the AJ noted that S1 did not become aware of Complainant's EEO activity until the spring of 2010 or later. The AJ also found no causal link with S1's alleged advances and claims 4 and 5. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant has not filed a brief on appeal. The Agency requests that we affirm its final order. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS AJ's issuance of a Decision without a Hearing We must 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to her 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's issuance of a decision without a hearing was not appropriate, as the record is not sufficiently developed, there are genuine issues of material fact in dispute, and the credibility of witnesses is at issue. AJ's Dismissal of Claims 1-3 for Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, we find the AJ erred in finding that the dismissed claims 1-3 were discrete act that were not a part of the same purported unlawful employment practice with respect to the timely-raised claim 5. We find, rather, that the dismissed claims constitute non-discrete acts that are clearly linked to claim 5, which was raised within the limitation period. Specially, claims 1-3 and claim 5 all occurred within the same facility and involved the same supervisor. We note that Complainant alleges that S1 subjected her to a hostile work environment, including giving her a negative job reference (claim 5), because she rebuffed S1's attempt to have a sexual relationship with her. Because all these acts are part of the same alleged unlawful employment practice of hostile work environment harassment, and the negative job reference fell within the 45 days from when Complainant initiated EEO counselor contact on August 4, 2010, we find that Complainant timely raised allegations of hostile work environment harassment with regard to claims 1-3. Therefore, the dismissal of claims 1-3 was not appropriate, and they will be remanded for further processing. Medical Confidentiality The Rehabilitation Act provides that information obtained regarding the medical condition or history of any employee shall be treated as a confidential medical record and there are only limited exceptions to this regulation. 29 C.F.R. § 1630.14. By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Although not all medically-related information falls within this provision, documentation or information of an individual's diagnosis is without question medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. See id.; see also ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995), at 22, n. 26; EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997), at 17; EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (July 27, 2000), at 4. In the instant case, we find that S1's statement over the telephone to the Calaveras District Ranger that Complainant was out on medical leave did not violate the Rehabilitation Act. As noted above, not all such information falls within the proscription of a confidential medical record. Here, S1 simply notified the Calaveras District Ranger that Complainant was out on medical leave, and there is no evidence that the Ranger discussed the diagnoses, symptoms, or the specific nature of Complainant's impairment. ROI, at 303. See Myrah v. Dep't of Agriculture, EEOC Appeal No. 01A52157 (Apr. 26, 2006) (supervisor's statement that complainant was on extended sick leave and had resigned due to health reasons did not violate Rehabilitation Act); Dozbush v. Dep't of Transp., EEOC Appeal No. 01983929 (Feb. 1, 2002) (revealing that a person is "medically disqualified" is not improper). We note, however, that documentation of the individual's diagnosis or symptoms would be medical information. See Enforcement Guidance-Preemployment at 22 n.26. Such a disclosure did not happen in this case. With regard to this claim alone, the Agency's final order will be affirmed. Hostile Work Environment / Harassment At the outset, we note that, although the AJ analyzed this matter under a disparate treatment theory, we find that Complainant's allegations are more properly addressed as a claim of hostile work environment/harassment. Complainant alleged that she was subjected to unlawful sexual harassment. It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her gender, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer; in other words, did the agency know or have reason to know of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the a complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). With respect to element (5), described above, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013); Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment results in a tangible employment action, such as a supervisor disciplining an employee for refusing the supervisor's advances, the action of the supervisor is viewed as the action of the employer, and strict liability attaches. See, e.g., Ellerth, 524 U.S. at 762-63. However, where the harassment does not result in a tangible employment action the employer can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Burlington Indust., supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). After a careful review of the record, we find that the AJ erred as a matter of law when he concluded that the record contained "insufficient evidence that [S1's] comments of a sexual nature were related to Complainant's gender." AJ's Decision, at 13. Rather, we find that, if Complainant's allegations are proven to be true, S1's comments would clearly be evidence that Complainant was subjected to unwelcome sexual comments and advances related to her gender. Complainant alleged that S1 inquired into her sexual preference and made sexual advances towards her. She asserted that after she made it clear that she was not interested in S1's advances, S1 began to treat her negatively, subjecting her to a hostile work environment. Complainant alleged that S1's attempted sexual advances included attempting to make overnight hotel trips with her, saying "good morning beautiful," asking her to throw a house warming party, and asking her to drive her to locations alone. Complainant also asserted that S1 approached her alone in the office, saying that men in the area were "well-used and diseased," and that she (S1) had had a hysterectomy, but asked the surgeon to leave the "fun parts" in. Although S1 denied making any sexual advances towards Complainant, we note that the male Range Management Specialist averred that S1 would make inappropriate sexual comments in front of him as well. Complainant contended that because she refused S1's advances, S1 began to insult her, subjected her to long performance evaluations, gave her assignments with unreasonable completion dates, and provided negative job references to prospective employers. If proven true, these allegations, which Complainant argues are only some examples of the conduct she was subjected to, are sufficient to establish a discriminatory hostile work environment. We note that S1 denied that she made sexual advances towards Complainant. While a mere denial will not always create a genuine issue of material fact, or the need for credibility determinations, in this case we find that Complainant's testimony coupled with S1's denial create both. We also find that the AJ erred as a matter of law in finding that S1's negative job reference of Complainant did not constitute as a tangible employment action. See Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (finding that a negative job evaluation constituted as a tangible employment action); Gibson v. Dep't of Homeland Sec., EEOC Appeal No. 0120060079 (Dec. 8, 2008) (finding that incidents which included complainant's negative reference constituted tangible employment actions). But we further find that the record needs to be more developed as to this matter. Specifically, the Wildlife Biologist with the Coconino National Forest in Flagstaff, Arizona averred that S1's negative reference may have had some influence on Complainant not getting the position. ROI, at 295. We note that the record does not contain a copy of the written job reference that S1 provided to the Coconino National Forest. We further note that S1 wrote in another job reference that Complainant has some issue with the "[A]bility to accept criticism and tolerate others." Id. at 299. The record does not contain this written reference of Complainant by S1, either. Therefore, we find that a hearing is required in this case. The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). When a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). In arriving at his decision, the AJ relied exclusively on the Agency's portrayal of the facts and essentially failed to credit Complainant's version of the facts. We note also that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See (EEO MD-110), 7-1; see also 29 C.F.R. § 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Mi S. Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are unresolved issues which require an assessment as to the credibility of S1, co-workers, and Complainant, and supplementation of the present record. Therefore, judgment as a matter of law for the Agency should not have been granted. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ erred in dismissing a portion of Complainant's complaint for untimely EEO Counselor contact. We further find that the AJ's issuance of a decision without a hearing was not appropriate, as the record is not sufficiently developed, there are genuine issues of material fact in dispute, and the credibility of witnesses is at issue. Accordingly, we VACATE in part the Agency's final order and REMAND the case for further proceedings; as to solely the claim of breach of medical confidentiality, the Agency's final order is AFFIRMED. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the EEOC Albuquerque Area Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 16, 2016 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 0120140008 2 0120140008