U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ebony M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 0120140153 Hearing No. 420-2012-00128X Agency No. FSA-2011-00750 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency's final order. ISSUE PRESENTED The issue presented is whether there are genuine issues of material fact that require a hearing on Complainant's claims that the Agency discriminated against her on the bases of race, sex, age, and reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources (HR) Assistant, GS-7, at the Agency's Alabama State Office in Montgomery, Alabama. Report of Investigation (ROI), at 88. Complainant had been employed with the Agency for 11 years, and had worked for the government for 31 years. Id. at 16. According to Complainant, she applied for three separate Administrative Specialist positions with the Agency: a GS-9 position, a GS-9/11 position, and a GS-9/11/12 position. Id. at 89-90. Complainant thereafter received an interview for the GS-9/11 and the G-9/11/12 position. Id. Complainant and three other candidates were interviewed by a three-person interview panel, compromised of the Executive Officer, the Administrative Officer, and the State Executive Director, who served as the selecting official. Id. The two other interviewed candidates were selected over Complainant for the GS 9/11 and the G-9/11/12 position. Id. The panel also used the interview for the GS-9/11 position to select for the GS-9 position. The three selectees for each position were, respectively: selectee 1 (African-American female in her 40s), selectee 2 (African-American, female, 50), and selectee 3 (Caucasian, female in her mid-50s). Id. at 89. Complainant was the only candidate who was not selected for any of the three positions. Complainant believed that she was more qualified than all three selectees. Complainant specifically noted that she had to train both S1 and S2 when they started with the Agency, and that S2 frequently made mistakes. Id. at 90. Complainant further noted that S3 had no HR experience listed in her resume and had a background primarily in real estate, while she (Complainant) had 31 years of personnel experience. Id. Further, according to Complainant, during a July 12, 2011, staff meeting, the Executive Officer stripped her of all of her specialized duties associated with her position, including retirement counseling, backgrounds, and fingerprints. Id. at 91. Complainant stated that the Executive Officer then gave these duties to the three selectees who were hired to the Administrative Specialist positions, as noted above. Id. In addition to Complainant and the Executive Officer, the Purchasing Agent and the Administrative Officer were both reportedly present in the July 12, 2011, meeting. Id. at 143. The Purchasing Agent stated that Complainant was no longer performing all of her duties with respect to retirements and personnel actions, and that she believed that Complainant's protected classes could have been factors in the Executive Officer's actions. Id. at 164. Complainant also averred that during the July 12, 2011, meeting: [The Executive Officer] told me that she knew I was unhappy about not getting promoted or else I would not have filed a complaint. [The Executive Officer] was picking at me for information, and she told me that she was unhappy with me filing a complaint and the way I have handled things. [The Executive Officer] told me that I should have come to her to work things out but I told her that all she has done is scream and yell at me. [The Executive Officer] told me that I had messed up my career and I will never be promoted through FSA and will be luck [sic] to keep the job I have. Id. at 91. The Executive Officer denied that she threatened Complainant during the July 12, 2011, meeting, but acknowledged that she had a confrontation with Complainant and the Purchasing Agent. Id. at 154. The Executive Officer averred that Complainant and the Purchasing Agent began to argue with her (the Executive Officer) over their work assignments. Id. The Executive Officer explained that, after Complainant and the Purchasing Agent refused to calm down, she stated to them that "they would not shut up and listen to what [management] was trying to say." Id. The Executive Officer thereafter provided both Complainant and the Purchasing Agent with a Letter of Caution over their alleged behavior during the July 12, 2011, meeting. According to the Purchasing Agent, the Executive Officer yelled at her and Complainant during the July 12, 2011, meeting for standing up for themselves over their assigned duties. Id. at 164. Although the Administrative Officer also was present at the July 12, 2011 meeting, the EEO Investigator never asked her any questions pertaining the meeting and whether Complainant in fact was threatened over her EEO activity. Id. at 143; 157-60. On November 17, 2011, the Executive Officer issued Complainant her Performance Appraisal for fiscal year 2011 with a rating of "Fully Successful." Id. at 55. The Purchasing Agent stated that S1, S2, and S3, all received higher performance appraisal ratings than she and Complainant. Id. at 164. Complainant believed that the Executive Officer disparaged her communication style in the performance appraisal. Id. at 91. The Executive Officer averred that each time she talked with Complainant about her performance, Complainant would express her discontent by speaking in a very loud manner. Id. at 155. The Executive Officer further stated that Complainant refused to communicate with certain employees because she was angry with them, and had a conflict with almost every employee in the division. Id. On May 23, 2011, Complainant contacted an EEO Counselor and filed an EEO complaint on August 19, 2011,2 alleging that the Agency discriminated against her on the bases of race (Caucasian/Native American), sex (female), age (53), and in reprisal for prior protected EEO activity when: 1. On April 15, 2011, she was informed that she was not selected for the GS-9/11/12 HR Specialist position; 2. In July 2011, during a meeting, the Executive Officer informed her that she was unhappy about Complainant having initiated an EEO complaint, threatened that she "would never get promoted with FSA," and remarked that she would be "lucky" to keep her current job; and 3. On November 17, 2011, she received a "Fully Successful" performance appraisal for Fiscal Year 2011, which included comments she believes to be damaging to her career. 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. When Complainant did not object, the AJ assigned to the case granted the Agency's July 17, 2012, motion for a decision without a hearing and issued a decision without a hearing on September 4, 2013, in the Agency's favor. The Agency subsequently issued a final order implementing the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the AJ found, regarding claim 1, that Complainant did not establish a prima facie case of discrimination based on sex, age, and race because all the selectees were female, relatively the same age as Complainant, and S3 was Caucasian. The AJ also found that Complainant did not establish a prima facie case of discrimination based on reprisal because she had not engaged in prior protected EEO activity when the selection process took place. The AJ further found that the Agency nevertheless articulated legitimate, nondiscriminatory reasons for not selecting Complainant, which she did not show were pretextual. The AJ additionally found that Complainant did not establish a prima facie case of sex, race, age, or reprisal discrimination regarding her Fully Successful Performance Appraisal claim (claim 3). In so finding, the AJ noted that Complainant did not show that she suffered any adverse employment consequence as a result of having been awarded a fully successful performance appraisal. The AJ further noted that Complainant received no loss of pay, and the evidence did not demonstrate that Complainant was subjected to any adverse action that would have dissuaded a reasonable worker from lodging or supporting a charge of discrimination. Lastly, the AJ found no correlation between Complainant's protected status and her claim that the Executive Officer threatened her career over her EEO complaint during the July 12, 2011, meeting. CONTENTIONS ON APPEAL Neither Complainant nor has the Agency filed a brief on appeal.3 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 ..."); EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, § VI.B. (Aug. 5, 2015) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI. A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS AJ's Issuance of a Decision without a Hearing The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex Corp. 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 [p]arty opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250 n.5. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that, when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at Ch. 7, § 1; see also 29 C.F.R. § 614.109(e). 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 AJ committed errors of law, the record is not sufficiently developed, there are genuine issues of material fact in dispute, and the credibility of witnesses is at issue, as explained below. Reprisal and Performance Appraisal (Claims 2 and 3)4 Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations. Binseel v. Dep't of the Army, EEOC Request No. 05970534 (Oct 8, 1998) (complainant told that filing an EEO suit was "wrong way to go about getting a promotion"). Agencies have a continuing duty to promote the full realization of equal employment opportunity in their policies and practices. 29 C.F.R. § 1614.101(a). This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to ensure that managers and supervisors perform "in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity." 29 C.F.R. § 1614.102(a)(5); see also Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072903 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010) (violation found where supervisor mentioned EEO complaints had been filed and said, "What goes around, comes around"); Woolf v. Dep't of Energy, EEOC Appeal No. 0120033727 (June 4, 2009) (violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office); Binseel v. Dep't of the Army, supra, When a supervisor's behavior has a potentially chilling effect on the use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the behavior is a violation. In the instant case, we find that the AJ improperly concluded that there was no genuine issue of material fact in this case with respect to claim 2. In finding no discrimination, the AJ noted only that there was no correlation between Complainant's protected status (EEO activity) and her claim that the Executive Officer threatened her career over her EEO activity during the July 12, 2011, meeting. However, Complainant specifically averred in her investigative affidavit that the Executive Officer said to her directly during the meeting that she was unhappy about Complainant's EEO (informal) complaint, and that Complainant had messed up her career and would never be promoted. We find that the Executive's Officer's comments here during the meeting, if true, clearly amount to a violation of the law because this behavior has a potentially chilling effect on the use of the EEO complaint process. We therefore find that the AJ erred as a matter of law in failing to address the Executive Officer's alleged comments as an issue of reprisal. We further note that the Executive Officer simply denies that she threatened Complainant during the July 12, 2011, meeting. However, Complainant disputes the Executive Officer's denial, and asserts that her career was in fact threatened over her EEO complaint. Assuming this event occurred as Complainant describes (as is appropriate on summary judgment), we find that the comment places into question the Executive Officer's motives for reassigning Complainant's duties and issuing her the Fully Successful performance appraisal. We also note that, in addressing Complainant's performance appraisal, the AJ found that the Fully Successful rating did not result in an adverse action that could support an allegation of discrimination. However, we find the Fully Successful rating, which reportedly was lower than the ratings of S1, S2, and S3 for FY 2011, to be an adverse action reasonably likely to deter a reasonable employee from engaging in protected activity. See Tamara G. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112387 (Dec. 3, 2015) ("If an employee engaged in protected activity and was retaliated against by receiving a lower evaluation, even if the rating is positive, it is likely that receiving the lower rating could create a chilling effect on an employee engaging in protected activity in the future").5 We further note that, in addition to Complainant and the Executive Officer, the Purchasing Agent and the Administrative Officer also were both reportedly present in the July 12, 2011, meeting. ROI, at 143. However, neither employee was directly asked by the EEO investigator if they witnessed the Executive Officer commenting on Complainant's EEO activity as Complainant described. The AJ should facilitate further development of the record and render credibility determinations on this issue. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that there are genuine issues of material fact which require an assessment as to the credibility of the Executive Officer, the Administrative Officer, and Complainant. Further, supplementation of the record is required. Therefore, summary judgment for the Agency should not have been granted with regard to claims 2 and 3. In light of our remand of claims 2 and 3, the Commission declines to fragment the complaint by addressing claim 1 on appeal. The Commission therefore remands the entire complaint for further processing. Accordingly, we VACATE the Agency's final order and REMAND for further processing in accordance with the Order below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Birmingham District 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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 11-14-2017 __________________ 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 amended her EEO Complaint on November 21, 2011. 3 There is no requirement for a complainant to submit a brief in support their appeal. Our regulations only require that "the appellant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what is being appealed." 29 C.F.R. § 1614.403; see Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IV.A (Aug. 5, 2015). Therefore, whether Complainant submitted a brief or statement is not dispositive of whether summary judgment was proper. 4 In view of our disposition on appeal, we do not address Claim 1. See infra. 5 The Commission notes that, although some allegations, standing alone, may not state a cognizable claim, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that "might well deter a reasonable employee from complaining about discrimination." EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II.B.1 (Aug. 25, 2016) (Retaliation Guidance). The Commission has a policy of considering reprisal claims with a broad view of coverage. Id.; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140153 2 0120140153