U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Macy B.,1 Complainant, v. David J. Shulkin,Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160475 Hearing No. 460-2014-00119X Agency No. 2003-0580-2014101356 DECISION On November 7, 2015, Complainant filed a timely appeal from the Agency's October 8, 2015, 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 and REMANDS the matter to the Agency. ISSUE PRESENTED The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly determined that there were no genuine issues of material fact in this case, such that a decision without a hearing was appropriate. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as a Food Service Worker at the Agency's Michael E. DeBakey Veterans Affairs Medical Center (VAMC) in Houston, Texas. Complainant stated that, around January 2013, an Electronic Technician for the Automatic Transport System (ET), who worked in the Engineering Department, introduced himself to her. Complainant stated that she would occasionally run into the ET in the basement, hallways, or outdoor smoking area. According to Complainant, the ET began complimenting her and asking her to go out with him. Complainant stated that, about two months after they met, the ET "started offering me money for sex." Complainant said that she repeatedly expressed that she was not appreciative of the ET's advances. On January 7, 2014, Complainant secretly recorded on her cell phone a conversation with the ET that took place in a VAMC hallway. According to the record, the recording is difficult to understand at times. Complainant contended that, during one of the difficult to hear portions of the recording, the ET offered her $2,000.00 in exchange for sex. Complainant stated that, on January 14, 2014, she and her union representative (UR) reported the ET's actions to the Chief of Facility Management (CFM), who oversees the Engineering Department. The CFM stated that she promptly requested that Human Resources issue "stay away" letters to Complainant and the ET, ordering them not to have any contact with each other. The record contains a January 14, 2014, memorandum from the CFM to the ET, which states, in relevant part, "As a result of the recent incident reported to me, you are hereby instructed that until further notice you are not to engage in any contact with [Complainant] on duty time unless the contact is directly related to the performance of your official duties and only with expressed (sic) prior supervisory permission or instruction." (emphasis in original) According to the CFM, a neutral fact-finding to determine whether employee misconduct had occurred was subsequently conducted by a Supervisory Health Systems Specialist (SH) from outside Complainant's and the ET's departments, who recommended that the ET receive sexual harassment training but face no disciplinary action. The record contains a February 7, 2014, report from the SH to the CFM, which states, in relevant part, "It is clear to the interview team that a consensual relationship existed between [the ET] and [Complainant] for a period of time. Based on the statements from the parties, it is apparent that sexual harassment did not take place." The CFM stated that the ET completed sexual harassment training on February 1, 2014. The CFM stated that four or five years before Complainant's allegation, another employee alleged that the ET sexually harassed her. The record contains a July 22, 2010, admonishment to the ET, which states, in relevant part, "The reasons, as stated in the notice of proposed admonishment, are sustained." The record also contains a June 17, 2010, notice of proposed admonishment to the ET based on the charges of leaving work area to which assigned during working hours without proper permission and inappropriate conduct. According to the notice, the inappropriate conduct consisted of giving a female coworker an unwelcomed hug. Complainant stated that after she reported the ET's actions to the CFM, she "broke down," started seeing a psychiatrist and taking medication, and took 30 days off work, some of which was Leave without Pay (LWOP). Complainant stated that, after the "stay away" letter was issued, she heard that the ET was complaining to other coworkers that she had reported him. According to Complainant, the ET attempted to talk to her at work in May 2014. The record contains a May 17, 2014, Report of Contact, in which Complainant reports that the ET attempted to talk to her that day while she was on duty. On January 21, 2014, Complainant contacted an EEO Counselor and filed a formal EEO complaint on March 20, 2014, alleging that the Agency discriminated against her on the basis of sex (female) when: 1. Beginning in or about January 2013, the ET repeatedly requested sexual favors from Complainant on a weekly basis; and 2. On January 7, 2014, the ET offered to pay Complainant $2,000.00 for a sexual favor. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an AJ. On June 5, 2015, the Agency submitted a Motion for Findings of Fact and Conclusions of Law without a Hearing. Complainant did not respond to the Agency's motion. On September 28, 2015, the AJ issued a decision without a hearing, finding no discrimination. The Agency's final action fully implemented the AJ's decision. In the AJ's decision, the AJ found, "It is clear from the recording that [the ET] was discussing a sexual encounter, although he never stated any specific details." The AJ also determined that based on the ET's comments and demeanor as observed from the transcript of the fact-finding hearing, "[I]t is clear that [the ET] regularly spoke with [Complainant] about personal matters that went far beyond the bounds of general workplace conversation." The AJ assessed the credibility of Complainant and the ET, finding the ET more credible than Complainant: [The ET] was not aware that he was being tape recorded, therefore his statements are worthy of more weight. [Complainant], on the other hand, knew that the conversation was being taped. Ironically, the recording casts doubt on [Complainant's] credibility. This is primarily due to what she does not say. In the conversation, [the ET] asks Complainant about a car that he believes she recently purchased. [Complainant] reveals that she does not have the down payment. He then says, "[I]f you want to come on with this old man, I'll give you two thousand. You know you got to have it. You know I need it too." Despite [the ET's] proposal, [Complainant] does not respond with shock or disgust. Instead, she says "I need it but not in that type of way." Although he never mentions details about the sexual encounter she later states, "I'm not going to have you eat my pussy for two thousand dollars, that's wrong!" Complainant never once indicates that she has repeatedly told him to leave her alone. She makes no mention of being married or being upset about his proposition. When he asks her why it's wrong, she states, "Cuz, I just wouldn't do that, I can't do that, you gonna have to ask somebody else . . . " Another factor casts serious doubt on [Complainant]'s credibility. On the one hand, she indicates that she knows the Agency has a "zero tolerance" policy against sexual harassment. She indicates, however, that she did not know who to report her complaint to. . . . She ultimately reported the incident to the Union Chief[], whose office is near her work area. . . . Finally, although Complainant recorded the conversation on January 7, 2014 she still did not report the incident until a week later on January 14, 2014. (emphasis in original) The AJ found that "[o]ther than bare assertions, self-serving statements and conclusory allegations, there is no support for the claim" made by Complainant. The AJ also determined that the Agency promptly responded to Complainant's complaint by requiring the ET to sign the "stay away" letter, conducting the fact-finding, and sending the ET to sexual harassment training. CONTENTIONS ON APPEAL On appeal, Complainant contends that there is a genuine issue of material fact as to whether the ET's alleged sexual advances were unwelcome. Complainant also states that the AJ improperly made credibility determinations in favor of the Agency. Complainant requests that her claims be remanded for a hearing. In response to Complainant's appeal, the Agency contends that Complainant has not established that the alleged harassment affected a term, condition, or privilege of employment or that the Agency knew or should have known of the harassment and failed to take prompt remedial action. 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 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 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 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 she concluded that there was no genuine issue of material fact in this case. In finding no discrimination, the AJ relied on credibility determinations, credited the Agency's version of the material facts, weighed the evidence, and acted impermissibly as fact a finder. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Further, we find that the evidence, taken as a whole and in the light most favorable to Complainant, could result in a determination in favor of the non-moving party. Therefore, a hearing is necessary and a decision without a hearing is inappropriate. In order to establish a prima facie case of sexual harassment, a complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). In the case of coworker 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. Id. The first four elements of a prima facie case relate to whether a hostile work environment actually existed, while the fifth element, showing the Agency knew or should have known about the harassment, addresses whether the Agency should be held liable for the existence of a hostile work environment. Here, we disagree with the AJ that Complainant was not able to establish a prima facie case of a hostile work environment. Complainant's sex qualifies her as a member of a protected group. She alleged that she was subjected to unwelcome harassment in the form of being propositioned for money. This conduct was based on her sex. Based on the AJ's analysis and both parties' contentions on appeal, we find that genuine issues of material fact exist, at a minimum, as to prongs (2) and (5) of a harassment claim. Specifically, the AJ made credibility determinations against Complainant and in favor of her alleged harasser, without the benefit of a hearing, and found facts against her claim. We find that the record has not been adequately developed with respect to whether Complainant was subjected to unwelcome verbal or physical conduct involving her protected class or regarding whether there is a basis for imputing liability to the agency. Hence, summary disposition of the instant complaint was improper. 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, 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 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various witnesses and Complainant. Therefore, judgment as a matter of law for the Agency should not have been granted. 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 order 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 file to the Hearings Unit of the Commission's Houston District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (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 01-2016-0475 2 0120160475