U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joelle L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120150121 Hearing No. 550-2013-00134X Agency No. 4E-890-0036-12 DECISION On October 7, 2014, Complainant filed a timely appeal from the Agency's September 10, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the matter for further processing. ISSUE PRESENTED The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Reno, Nevada Post Office. On February 10, 2012, Complainant contacted an EEO Counselor. In her written request for EEO counseling, Complainant indicated that the bases for her claims were sexual orientation, race (Caucasian), age (48), and sex (female). In the EEO Counselor's April 12, 2012, cover letter enclosing Notice of the Right to File a Formal Complaint, the EEO Counselor wrote, in relevant part, "In this matter you reported that you were discriminated against based on race, sex, and age. You also identified sexual orientation as a basis. During our initial interview I explained to you that sexual orientation is not a purview that is protected by EEOC regulations, CFR 1614 [sic]." In the EEO Counselor's May 3, 2012, EEO counseling report, she noted, "The Counselee alleged discrimination on the basis of race, sex, age and sexual orientation." On April 28, 2012, Complainant filed a formal EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), age (48), and reprisal for prior protected EEO activity when: 1. On October 3, 2011, her supervisor made an inappropriate comment to her on the workroom floor; 2. On October 4, 2011, she was issued a Letter of Warning for Attendance, which was subsequently removed from her file; 3. On unspecified dates, she was forced to sign 3971 forms for late clicks, while her coworkers were not; 4. On January 23, 2012, she was falsely accused of grabbing and squeezing the breast of a female coworker; 5. On unspecified dates including February 7, 2012, her requests to have work assignments rotated have been ignored; 6. On February 7, 2012, she was given an official discussion for sending postage due to the registry cage; 7. On February 7, 2012, she was given an Investigative Interview for the incident on January 23, 2012; 8. Management continually fails to uphold grievance settlements; 9. Complainant is not allowed to talk and must be working at all times; 10. On an unspecified date, Complainant was chastised in front of others when she called her supervisor "dear;" 11. On an unspecified date, Complainant was told in a demeaning manner not to follow her supervisor; 12. On January 30, 2012, Complainant's supervisor stated in a hostile manner, "Are you the ONLY one who doesn't understand" when she asked for clarification; and 13. On April 30, 2012, Complainant was admonished by the manager for training another clerk. The Agency accepted claims 1 through 7 and claims 9 through 13 for investigation, but dismissed claim 8 in accordance with 29 C.F.R. § 1614.107(a)(1) for failure to state a claim due to lodging a collateral attack on the proceedings of another forum; specifically, the negotiated grievance procedures. Sexual orientation was not investigated as a basis. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an AJ. In her August 2, 2014, response to the Agency's July 22, 2014, Motion for Decision without a Hearing, Complainant noted, "It is clear that in the Agency's request for summary judgment the attorney overlooks the fact that sexual orientation was claimed. The RMO's actions were driven by their extreme dislike of Complainant's sexual orientation and thus drove their malicious acts of reprisal/retaliation." Over Complainant's objection, on September 4, 2014, the AJ granted the Agency's Motion for Decision without a Hearing and issued a decision without a hearing, finding no discrimination. On September 11, 2013, the AJ issued a Pre-hearing Order, which established the deadline for any motions for decision without a hearing as December 13, 2013. On July 22, 2014, the Agency submitted a Motion for Decision without a Hearing. The AJ concluded that, although the Agency's Motion for Decision without a Hearing was untimely, Complainant made no showing of prejudice and therefore vacated his September 11, 2013, Pre-hearing Order in the interest of judicial efficiency and economy. The AJ then concluded that there were no genuine issues of material fact. The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for admonishing Complainant, subjecting her to an investigative examination, and issuing her a warning based on her absentee record and that the preponderance of the evidence in the record did not establish that these reasons were pretext for discrimination. Finally, the AJ concluded that Complainant's allegations did not constitute actionable harassment. The AJ's decision did not address sexual orientation as a basis. The Agency's final action implemented the AJ's decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency's Motion for Decision without a Hearing was over seven months late and should have been dismissed. Complainant also contends that the AJ erred in failing to address her sexual orientation claim, noting that Title VII prohibits stereotyping based on sex. Accordingly, Complainant requests that her case be remanded for further processing. In response to Complainant's appeal, the Agency concedes that its motion was untimely but maintains that the undisputed material facts remained the same. The Agency contends that sexual orientation was never part of the complaint because Complainant did not object to the Agency's notice of Accepted Issues to Be Investigated. Accordingly, the Agency moves that all references to Complainant's sexual orientation, including sexual stereotyping, be stricken from the record and requests that its final order be affirmed. 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 As a preliminary matter, we conclude that claim 8, pertaining to management's alleged failure to uphold grievance settlements, was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. We must now 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 AJ 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 (February 24, 1995). 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. In finding no discrimination, the AJ ignored the fact that Complainant sought EEO counseling for discrimination based on sexual orientation and that the EEO counselor dissuaded Complainant from filing a complaint on that basis. We note that the Commission has jurisdiction over sexual orientation discrimination claims pursuant to our finding in Baldwin v. Department of Transportation, which held that a claim of sexual orientation discrimination is a claim of sex discrimination, and therefore covered under Title VII and properly processed under the 29 C.F.R. Part 1614 process for EEO complaints. Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015); see also, e.g., Larita G. v. U.S. Postal Serv., EEOC Appeal No. 0120142154 (Nov. 18, 2015)(remanding the matter for a supplemental investigation with sex (female and sexual orientation) as a basis); Colleen M. v. Dep't of Agriculture, EEOC Appeal No. 0120130552 (May 25, 2016)(analyzing a complainant's sexual orientation claims alongside her sex and reprisal discrimination claims because the sexual orientation claims had been fully investigated). Further, we note that an EEO Counselor should not dissuade a complainant from raising a claim, even where the EEO Counselor believes that the claim is not properly brought in the EEO process. Whether a particular matter raises a justiciable claim in the EEO process is a matter to be determined in the first instance by the agency against whom the complaint is filed, subject to further review by an EEOC AJ and/or the Commission on appeal. Claims that are not justiciable, i.e., do not state a claim, may be dismissed by the agency pursuant to 29 C.F.R. § 1614.107; they may not be foreclosed by the EEO Counselor. See, e.g., Champion v. U.S. Postal Serv., EEOC Appeal No. 0120121224 (May 9. 2013); Hayes v. U.S Postal Serv., EEOC Appeal No. 0120112568 (Aug. 29, 2012); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 2-5 (Aug. 5, 2015)("Under no circumstance should the EEO Counselor attempt to dissuade a person from filing a complaint."). We note 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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). Therefore, judgment as a matter of law for the Agency should not have been granted. Because sexual orientation was not investigated as a basis for Complainant's claims, we REMAND the matter to the Agency for further processing, including a supplemental investigation into Complainant's claims with sex (sexual orientation) as a basis. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. 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 10-28-16 __________________ 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 01-2015-0121