U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Serita B.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal No. 0120150572 Hearing Nos. 570-2012-00651X, 570-2013-00295X Agency Nos. BEP-11-0781-F, BEP-12-0696-F DECISION On November 21, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's November 4, 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. 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's (AJ) decision to grant summary judgment in favor of the Agency was correct. BACKGROUND Factual Background At the time of events giving rise to her complaints, Complainant worked as a GS-7 Supply Technician in the Agency's Eastern Currency Facility (ECF) Quality Assurance Division, Office of Materials Technology in Washington, D.C. Complainant's first-line supervisor (S1) was an ECF Quality Assurance Division Manager, and her second-line supervisor (S2) was the Chief of the Office of Materials Technology. According to Complainant, since 2008, a white Caucasian male Chemist (C1) has harassed her. S1 is C1's second-line supervisor. Complainant stated that the harassment began on April 30, 2008, when she was watching the news with a coworker (C2). C1 kicked a metal trashcan towards where Complainant was sitting. C2 stated that Complainant had made a comment about African-Americans voting against Republicans and that C1 subsequently kicked the trashcan towards where she and Complainant were sitting. Complainant stated that she reported C1's actions to S1 and S2 but that no action was taken. S1 stated that after Complainant reported what happened on April 30, 2008, she disciplined C1, relocated his office, and reassigned Complainant so that C1 and Complainant would not have to work in the same laboratory. Complainant averred that after April 30, 2008, C1 would follow her to the elevator or down the hall or come to her workspace and stare at her. Complainant also alleged that C1 harassed her because she was an African-American female with a dark complexion. As evidence of C1's animus towards African-Americans, Complainant stated that on June 4, 2008, her coworker (C3) was watching the news, which was airing a story about Barack Obama winning the Democratic nomination when C1 slammed his fist down and shouted, "There is no f***ing way a Black man will become president!" Complainant stated that on July 27, 2011, she and C1 were walking down the hallway when C1 coughed towards her without covering his mouth. According to Complainant, she asked C1 to cover his mouth, but C1 got angry and called her a "stupid idiot person." Complainant averred that C1 continued to yell at her, and that she ran to S2's office and told him and S1 what had happened. Complainant alleged that S1 subsequently pulled her and C1 into an office to ask what had happened, and that C1 admitted that he told her, "Only a stupid idiot person would say that you should cover your mouth." Complainant stated that S1 admonished C1 and that C1 reluctantly apologized. According to Complainant, she subsequently reported what happened on July 27, 2011, to the Agency's Police Services Division. S1 stated that the Agency convened a Violence Intervention Team on July 28, 2011, which determined that a verbal counseling of C1 was appropriate and that S1 should advise Complainant and C1 not to speak to each other. C1 stated that he needed to enter Complainant's work area on occasion to perform "lightfastness" testing on equipment or to deliver securities. Complainant averred that on August 24, 2011, C1 walked down the hallway near her workspace, causing her to become afraid. S1 denied knowledge of the August 24, 2011, incident. According to Complainant, on September 26, 2011, C1 came into her work area and stared at her. S1 denied knowledge of the September 26, 2011, incident. Complainant stated that on October 27, 2011, she was having lunch in the break room when C1 entered the room, supposedly to get his mail. S1 stated that C1 told her that he entered the room because Complainant was not alone in the break room. According to S1, the mail is located in the break room. Complainant alleged that she was denied career-ladder and competitive promotions in 2011. According to S1, Complainant is at the top grade of the Supply Technician career-ladder and cannot be noncompetitively promoted. S2 stated that Complainant had not applied for competitive promotion to a higher-graded position in the Office of Materials Technology during that time frame. Complainant alleged that on February 23, 2012, C1 approached her in the hallway near the elevators and raised his cane towards her two times, while yelling at her. C1 stated that he lifted his cane due to involuntary muscle movements caused by an anxiety attack. According to C1, he was too far away from Complainant for the cane to strike her. Complainant averred that she ran into an open elevator to get away from C1. Complainant stated that immediately after the incident, she reported what happened to S1 and Police Services. S1 stated that a Violence Intervention Team was convened on February 23, 2012, in response to Complainant's report. On March 1, 2012, S1 issued Complainant and C1 memoranda entitled "Order of Separation (10 Foot Rule)," which instructed Complainant and C1 to maintain at least a 10-foot distance between them and to refrain from verbally communicating with each other. Complainant averred that this response to the February 23, 2012, incident was insufficient. S1 stated that a Caucasian male subordinate (C4) complained that, on June 25, 2012, C1 lifted his cane towards C4 and gestured angrily. C4 stated that C1 frequently has angry outbursts in the workplace and that he is afraid of C1. There is no evidence in the record regarding whether C4 had engaged in protected EEO activity prior to the alleged harassment by C1. According to Complainant, on July 18, 2012, C1 threatened her in the break room by angrily stating to her, "If you tell one more thing on me (sic)." Complainant alleged that C1 was less than two feet away from her when he made this statement, in violation of the 10-Foot Rule. C1 denied making such a statement. Complainant stated that S1 was also in the break room at the time. According to S1, she was not in the break room but was down the hall by the water fountain. S1 stated that Complainant called her over to the break room and that she saw C1 returning to his office stating, "I was just trying to get my mail." S1 averred that she reminded C1 about the 10-Foot Rule that day. Procedural Background On October 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (dark complexion), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On a continuing basis since June 24, 2009, C1 follows Complainant around the worksite and comes down to her work area, including: a. On July 27, 2011, C1 coughed on Complainant as he passed her in the hallway and then referred to her as a "stupid idiot person;" b. On August 24, 2011, C1 walked up and down the hallway outside Complainant's work area; c. On September 26, 2011, C1 came into Complainant's work area and stared at her; d. On October 27, 2011, C1 came into the area in which Complainant was eating her lunch, supposedly on his way to get his mail; and 2. Complainant has been denied promotion(s) for which she was due or for which she was otherwise the best qualified applicant. Complainant objected to the scope of the hostile work environment claim. She argued that the period should go back as far as April 30, 2008. However, the Agency limited the scope of the hostile work environment claim to events that took place on or after June 24, 2009, because Complainant had filed a prior EEO complaint on July 23, 2008, which alleged harassment between April 30, 2008, and June 23, 2008, and which was pending before an Administrative Judge until a finding of no discrimination was issued on June 24, 2009. On November 19, 2012, Complainant filed a second EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On February 23, 2012, C1 approached her, raised his cane, and hit at her twice while yelling at her; 2. On March 1, 2012, management issued Complainant an "Order of Separation" (10-Foot Rule) to maintain at least a 10-foot distance from C1 and to refrain from verbally communicating with him; and 3. On July 18, 2012, C1 verbally threatened her by angrily stating, "If you tell one more thing on me (sic)." At the conclusion of both investigations, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request a hearing. Complainant timely requested hearings. The AJ assigned to the case consolidated both of Complainant's complaints. Over Complainant's objections, the AJ granted the Agency's May 16, 2014, motion for a decision without a hearing and issued a decision without a hearing on October 23, 2014. In the decision, the AJ determined that Complainant had failed to establish a prima facie case of discrimination or reprisal with respect to any of her allegations because she did not establish that she was treated less favorably than similarly-situated employees outside of her protected group. According to the AJ, even if a prima facie case of discrimination or reprisal had been established, the Agency provided legitimate, nondiscriminatory reasons for its actions, which were that the Agency was attempting to separate Complainant and C1 while permitting them to do their work. The AJ found that Complainant failed to establish pretext for discrimination. With respect to Complainant's hostile work environment claim, the AJ determined that Complainant failed to establish a connection between the alleged harassment and her race, color, sex, or prior protected activity. With regard to Complainant's allegation that she was subjected to unlawful discrimination when she was denied competitive and noncompetitive promotions in 2011, the AJ did not specifically address this issue in her findings. As was noted above, however, the AJ did find that Complainant had failed to establish a prima facie case of discrimination or reprisal with respect to any of her allegations because she did not establish that she was treated less favorably than similarly-situated employees outside of her protected group. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant had not established that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ improperly issued a decision without a hearing in favor of the Agency. According to Complainant, the AJ ignored the fact that the Agency failed to adequately separate her and C1 between April 30, 2008, and July 18, 2012. Complainant suggests that she should have been given a work area with a locked door or moved to a different building. Complainant requests that the Commission enter judgment in her favor or that the matter be remanded for a hearing on the merits. In response to Complainant's appeal, the Agency contends that a decision without a hearing was appropriate and that the record does not support a finding of discrimination, reprisal, or harassment. According to the Agency, Complainant cannot establish that the alleged harassment was based on her membership in protected classes or prior protected activity, that the acts were sufficiently severe or pervasive to create a hostile work environment, or that there is a basis to impute liability to the Agency. The Agency notes that C4, a Caucasian male, complained about similar conduct by C1 with his cane and that C1 has a long history of unprofessional behavior in the workplace. The Agency maintains that it appropriately investigated Complainant's allegations of harassment. The Agency requests that its final order therefore be affirmed. 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"). As a preliminary matter, we find that the Agency properly defined the scope of Complainant's harassment claim. Complainant's prior complaint covered the alleged harassment from 2008, and, until the AJ issued a ruling on that complaint on June 24, 2009, Complainant could have raised any ongoing harassment as like or related to the claims of the pending complaint. Moreover, Complainant has not identified any instances of harassment between the filing of her complaint covering the 2008 harassment and June 24, 2009. Accordingly, Complainant's harassment claim is properly defined as consisting of incidents of alleged harassment beginning on June 24, 2009. 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 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). 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 she concluded that there were no genuine issues of material fact in this case. Both the Agency and the AJ, for the most part, approached Complainant's case as a claim of disparate treatment when her claim was largely one of harassment. In this regard, the focus should not have been on whether the Agency articulated legitimate, non-discriminatory reasons or whether Complainant established a prima facie case or pretext. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 finding no discrimination, the AJ indicated that Complainant failed to establish a nexus between the alleged harassment and her race, sex, color, and prior protected EEO activity, because C1 allegedly had harassed coworkers of different races, sexes, and colors than Complainant. However, because Complainant was not alleging disparate treatment here, C1's treatment of people from other races and sexes is not dispositive of whether he subjected Complainant to unwelcome conduct because of her race, sex, color or prior EEO activity. Complainant provided evidence of C1's possible racial animus towards Blacks in general and her specifically when she recounted the two situations where he allegedly kicked a trashcan towards her and another co-worker when the topic of Blacks voting for Republicans was discussed, and became angry at the prospect of a Black candidate being elected President. Both of theses situations, viewed in a light most favorable to Complainant, would indicate the existence of a genuine issue of material fact as to whether C1's actions were based on Complainant's race or color. Likewise, we note C1's alleged statement, while holding his cane in an angry and threatenting manner that, "If you tell one more thing on me (sic)," which could have been related to her EEO activity. Finally, we find that there are also genuine issues of material fact in dispute regarding whether there is a basis for imputing liability to the Agency. In this regard, we note that 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. Id. Here, we find that the record is in dispute as to whether the Agency's actions constituted immediate and appropriate corrective action. The record indicates that C1 continued coming around Complainant even after he was told not to do so in violation of the Agency's 10-Foot Rule. 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, Chap. 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 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials, coworkers, and Complainant herself. Therefore, judgment as a matter of law for the Agency should not have been granted as to Complainant's harassment claim.2 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 The Agency is directed to submit a copy of the complaint files to the EEOC Hearings Unit of the Charlotte District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint files have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the hostile work environment claim 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 03/05/18 __________________ 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 In order to avoid the piecemeal processing of Complainant's claims, we decline to address the matter of Complainant's promotions in 2011. This matter, along with her harassment claim, will be remanded to the Agency in accordance with our Order below. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-0572 9 0120150572