U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leif S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120140516 Hearing No. 570-2011-00839X Agency No. DECA-00217-2010 DECISION On November 22, 2013, Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 18, 2013, final order concerning his 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. For the following reasons, the Commission VACATES the Agency's final order. ISSUE PRESENTED The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case without a hearing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Materials Handler at the Agency's Sagami Depot facility in Camp Zama, Japan. According to Complainant, his first-line supervisor (W1) was a Materials Handler Work Lead, his second-line supervisor (S2) was a Materials Handler Supervisor, and his third-line supervisor (S3) was the Distributor Facilities Manager. Complainant asserted that on August 18, 2010, another Work Lead (W2) shouted: "Get your black faces over here so I can see them." According to Complainant, later in the day of August 18, 2010, W2 told another Work Lead (W3), "Watch out for that nigger, I don't trust him," referencing Complainant. According to W3, on August 18, 2010, W2 told him, "Fuck all their monkey asses and especially that nigger right there. I hate that nigger, and I'll kill that nigger, and you better watch out for the nigger right there." W3 said that W2 was referencing Complainant. Complainant said that he reported W2's remarks to S2 on August 18, 2010, and on August 20, 2010, sent a letter to his chain of command, including S3, requesting a formal investigation. According to S3, he learned about W2's comments on August 18, 2010. S3 said that he and other managers conducted an investigation. According to S3, as a result of his August 18, 2010, comments, W2 was relocated to another warehouse 40 miles away and was suspended for 10 days without pay. Complainant said that after August 18, 2010, W2 posted on social media, "Tell [Complainant] to bring it on," and "Nothing is going to happen to [W2] because he knows people in high positions." According to Complainant, on one occasion after W2 was transferred, W2 approached Complainant with his car and "made gestures with his arms." On November 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (black) when, on August 18, 2010, W2 said, "Get your black faces over here where I can see them," and later in the day said, "I don't trust that nigger." At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 16, 2013, motion for a decision without a hearing and issued a decision without a hearing on September 18, 2013. The AJ decided that there were no genuine issues of material fact or credibility requiring resolution at a hearing. The AJ concluded that the Agency took immediate and appropriate corrective action regarding W2's alleged harassment. Although Complainant alleged that W2 continued to make racial remarks until his subsequent transfer, the AJ determined that no further racial comments were made by W2 after the Agency began its investigation into W2's remarks. 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. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in concluding that Complainant raised no triable issue of fact that W2 created an objectively hostile work environment. According to Complainant, W2's comments on August 18, 2010, created an objectively hostile work environment. Complainant also contends that the AJ erred in concluding that Complainant raised no triable issue of fact that the Agency failed to take immediate and appropriate corrective action. According to Complainant, the Agency cannot prove that it took prompt and effective action to investigate Complainant's allegation and prevent further harassment because S3's investigation did not begin until August 25, 2010. Complainant maintains that W2 continued to make racist comments on a daily basis after August 18, 2010. Therefore, Complainant contends that the Agency failed to effectively respond to the harassment. The Agency makes no contentions in response to Complainant's appeal. ANALYSIS AND FINDINGS 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 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"). 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 his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See Burlington Industries, 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 when he concluded that there was no genuine issue of material fact in this case. We find that the AJ accepted the Agency's assertions regarding the corrective actions taken by the Agency in their entirety, notwithstanding disputed issues of fact. Further, we find that the record already supports a finding that a hostile work environment existed because the events that prompted Complainant to complain are not in dispute. Although the record already supports a finding that a hostile work environment existed, material factual disputes remain concerning the promptness and the effectiveness of the Agency's corrective actions, which is prong (5) of a prima facie case of harassment. For example, the current record is not clear as to whether further racial comments were made by W2 after the Agency began its investigation into W2's remarks. The record also requires development regarding the delay between Complainant reporting the harassment to management and the start of management's investigation. We therefore find that the record is not sufficiently developed to determine the sufficiency of the Agency's response to Complainant's allegations. Accordingly, we VACATE the Agency's final order and REMAND the matter for an administrative hearing. The hearing should focus on whether the Agency can prove by a preponderance of the evidence that it took prompt and appropriate corrective action in response to Complainant's allegations of a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the Commission's Washington Field 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 focused on whether the Agency took prompt and appropriate action in response to Complainant's harassment complaint. The Administrative Judge shall also render rulings on any relief that may be warranted and, thereafter, issue a decision in accordance with 29 C.F.R. § 1614.109. The Agency shall issue a final order 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 (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 12-23-16 __________________ 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 01-2014-0516 2 0120140516