U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dotty C.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161636 Hearing No. 430-2013-00275X Agency No. 2004-0565-2012104556 DECISION On April 15, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's March 17, 2016, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemical Addiction Rehabilitation Program (CARP) Coordinator at the VA Medical Center in Fayetteville, North Carolina. During the events that underlie this complaint, Complainant's first line supervisor was Person A. Complainant filed a prior EEO complaint in February 2012, alleging that Person A charged her Absent Without Leave for official travel.2 On August 6, 2012, Person A issued Complainant a reprimand based on two charges. First, Person A alleged that Complainant delayed implementation of the Contingency Management Program, which was scheduled for completion in February or March 2012. Second, Person A charged Complainant with failure to follow instructions. On October 28, 2011, Complainant was tasked with the development and implementation of the Buprenorphine Program. Person A stated that as a result of Complainant's failure to follow instructions, the Buprenorphine Program was delayed. Complainant does not deny that there was a delay in implementation by approximately five weeks, but she asserts that the delay should have been excused because the delay was for good cause. Specifically, Complainant asserts that she provided reasons for not meeting the planned deadline in writing to Person A, and detailed that the program was delayed due to: (1) lack of proper equipment to allow the program to follow the research protocol for contingency management; (2) her desire to use point of contact cups for collecting urine instead of having urine samples processed at the lab; (3) additional duties she was assigned when Person A received a new position; and (4) staff shortages. Additionally, Complainant stated that she was advised by the National Project Manager that the delay was not an issue. Complainant noted that Person A had staff meetings twice a month and that she gave Person A updates about what was occurring with the project and that Person A never expressed concerns. Complainant also noted that with this project there were five or six Intensive Outpatient Programs throughout the region and that Hampton got their program up first and she got the Fayetteville program up second, while Durham just got their program running nine to ten months after Fayetteville. Complainant stated she thought the second charge concerned her lack of understanding of how she was supposed to complete a form of the Office of Inspector General (OIG) in implementing the Opiate Replacement Treatment Program (OTP). Complainant contends she submitted several versions of the form to Person A and the Chief, Mental Health Service Line, but they were returned with no instruction on how to correct and/or properly complete the form at issue. Complainant also asserts that the program was up and running fairly quickly from the time frame given. In addition, Complainant states she was left out of the loop regarding certain aspects of implementing the program. In response, Person A stated that she and Doctor 1 (the Chief of Mental Health Care Line) told Complainant if she could not get the work done to let them know ahead of time. Person A said Complainant never reported that the lab was a problem. Person A said they found out about the lab issue several months after the fact. Person A stated that the lab issue did get resolved and that even after that the Contingency Management Program was not put in place and had delays. With regard to Complainant's claim of additional duties, Person A acknowledged that Complainant's job was very demanding but she did not know what extra duties Complainant was referring to in her statement. Person A did say that Complainant would volunteer to do a lot of things for people and volunteer to be on committees. Person A said she told Complainant she did not want her to be on those committees. Person A also noted that Complainant was the point person for putting data in the system for new employees ID cards. Person A stated she later took that task away. Person A said any place she could take away duties that were outside of Complainant's job, she would take those duties away. With regard to Complainant's claim of staff shortages, Person A said that at the time Complainant had a full-time staff. Person A noted Complainant was slotted for a Licensed Clinical Social Worker and two GS-9 Addiction Therapists. Person A said all three positions were in place and had been in place for a year. Person A said the Addiction Therapist did not leave her area until May and June 2012. Person A also stated that Complainant was aware of management's concerns about the two programs not moving along quickly. Person A stated that she told Complainant to call other CARP Program Coordinators to find out what they were doing; however, she said Complainant did not contact other hospitals to get guidance. Person A said she met regularly with Complainant to find out what the problem was, but it was to no avail. Additionally Person A stated that she did not recall "where Durham was in that picture" at that time. Person A also stated she did not recall the National Director making a statement that delay was not an issue. However, Person A stated she recalled that in December 2011, the Director stated that because of the delay patients would go without treatment. Person A also stated that if she, Doctor 1, or Person C were not aware of the statement by the Director, they would have an expectation that the deadlines be met. Person B was the concurring official on the reprimand. Person B stated that Doctor 1 had alerted her to some deadlines that were past due. Person B said that Complainant gave an oral and written response to the reprimand but that Complainant did not address why items were late. Person B said she would have asked Complainant if she was going to be late, what things did she say to her supervisor and whether Complainant let her supervisor know that she needed an extension or assistance. Person B said that Complainant was not able to answer any of that in the affirmative. Person B was asked if she recalled the specifics to Complainant's response and said that she "really can't address that because I don't have a copy of her written response." However, Person B alleged that Complainant was made aware by her supervisor and by the Chief of Mental Health about her responsibilities but did not address the deficiencies. With regard to Charge 1, Person B acknowledged that Complainant said that the problem with urine cups was a reason for her delay. However, Person B said that was one piece of the program and that there were other parts that could be implemented. Person B said that as a Program Manager, Complainant would be expected to try to resolve the issue and let people know in a timely manner if there were barriers. Person B said Complainant did not let people know in a timely manner that there were issues. In response to Complainant's contention that she let Person A know verbally and in writing what was causing the delay on several occasions, Person B said she may have sent some emails but she did not inform Person B until after the fact. With regard to Complainant's contention that the Fayetteville location was implemented nine to ten months ahead of the Durham facility, Person B said she had no idea about that contention. With regard to Complainant's claim that the National Director communicated that there was no rush to implement, Person B said that she recalled that the program had to be implemented immediately. With regard to Complainant's claim that she was left out of the loop on a lot of items that prevented her from moving forward with implementation, Person B said that there were numerous emails that went back and forth with policy documents that were not submitted on time. Person B said that the Chief of Mental Health customarily responded to documents saying they needed revision. Person B also said that Person A was very organized in that respect. On October 16, 2012, Complainant filed the EEO complaint at issue in this case. We find Complainant's complaint is properly defined as alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when: On August 6, 2012, she was issued a reprimand. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ issued a Notice of Intent to Issue Decision Without a Hearing. Complainant filed her Complainant's Response to Notice of Intent to Issue a Decision Without a Hearing. In her response, Complainant stated she did not take issue with the charges; however, she stated that there were reasons for the delays. Accompanying her response, Complainant provided nine statements from coworkers describing management's unfavorable treatment of Complainant during the time frame at issue. Over Complainant's objections, the AJ assigned to the case issued a decision without a hearing on February 25, 2016. The AJ stated that Complainant did not take issue with the bases of the reprimand, but she only responded that Person A did not consider that she had good cause for the delays. The AJ noted that while Complainant presented a number of statements from coworkers about unfair treatment that they alleged Complainant received, there is no evidence that the reprimand issued was based upon reprisal. The AJ found "Complainant's assertions countering the reprimand equate to protests about the trials and tribulations of the work place, maybe even personality conflict, but do not rise to the level of actionable reprisal." The AJ concluded Complainant failed to establish that she was subjected to unlawful discrimination on any alleged bases. The Agency subsequently issued a final order on March 17, 2016. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant states she does take issue with the two charges in the reprimand. Complainant contends there is no factual basis for the reprimand and states that her supervisor made no effort to determine whether there were legitimate reasons before issuing the reprimand. Complainant notes she also supplied affidavits from several employees in support of her position. 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. (as revised, August 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). Initially, we must determine whether it was appropriate for the AJ to issue 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. Id. 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 AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. 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). Upon review of the record, we find that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact in this case regarding pretext. Specifically, we note that Complainant provided statements from several coworkers in support of her opposition to summary judgment who stated that during the relevant time Complainant was a good worker and that she was targeted by management for disciplinary action. We note that five of the nine coworkers who provided statements on Complainant's behalf felt that management took actions against Complainant because of one or more of her protected bases. For example, the record contains a statement from Coworker 2 who was a Supervisor in the Outpatient Addiction Therapy Program. Coworker 2 said she observed numerous occasions where other supervisors were not held to the same standards as Complainant. Coworker 2 stated that they have "had several black female professionals with doctorate degrees come but for some reason they don't stay long. They were immediately judged by the color of their skin and not the content of their character." Coworker 2 stated she has witnessed many occurrences of discrimination against Complainant. Coworker 2 noted that Complainant was often the person they relied upon to be acting chief when it came time for big hospital inspections like the Joint Commission. Coworker 2 stated Complainant would often have to fill several positions at one time while still trying to maintain her supervisory role over her assigned employees as well as guiding the service. Coworker 2 stated there were four individuals who conspired against Complainant: Person A, Person B (Chief of Social Work), Doctor 1, and Person C. Coworker 3 stated that he worked at the VA Medical Center in Fayetteville, North Carolina from April 2006 to February 2013, as the Chief, Logistics Service. Coworker 3 stated he served as a mentor for Complainant and referred to her as a "consummate professional always putting forth more effort than many of her peers." Person C stated that as her mentor, he had the opportunity to read electronic mail during the "witch hunt" of Complainant. He stated in one message, Doctor 1 wrote to Person B "her direct intention to do whatever it takes to help remove [Complainant] from federal service." Coworker 3 stated it was apparent that through Doctor 1's surrogates, Person C, Person A, and Person B retaliated against Complainant for her prior EEO complaint against Person A. The record also contains a statement from Coworker 4, a Licensed Clinical Social Worker. Coworker 4 stated that Complainant was hired under her as the Coordinator for CARP in the Social Work Service from May 2006 until her retirement in 2012. Coworker 4 stated she witnessed several instances where Person A, Person B, and Doctor 1 "continuously criticized and ridiculed [Complainant] in our management meetings." Coworker 4 stated that she was surprised that they negatively responded to Complainant's job performance because "she was an excellent, diligent, and competent supervisor." Coworker 4 stated these comments were not justified because Complainant was "always dependable, competent, and an excellent team player." Coworker 4 states she witnessed several incidences that indicated Complainant was being targeted for negative job actions by Person A that were not justified or lacked evidence. Coworker 4 states she spent unwarranted time defending Complainant's character and professionalism against Person A, Person B, and Doctor 1. Coworker 4 stated that Person A constantly reprised against Complainant and negatively portrayed Complainant to upper management. In a statement, Coworker 6 explained that she met Complainant while serving as the Agency's Suicide Prevention Coordinator. Coworker 6 stated that two of the new programs launched by the Agency and partially under the supervision of Complainant were operating well with good participation from veterans. Coworker 6 stated that despite the success of these programs, Person A and others decided that they would use the fact that these programs did not start as quickly as they had anticipated as an excuse to remove Complainant. Coworker 6 stated that she believed Complainant served the Agency well over the years she was employed. Coworker 6 stated that having worked closely with Complainant and having heard feedback from others, she is "certain that her termination had more to do with the charge of discrimination than any short delay in the now successful programs." Additionally, Coworker 7 stated that she was hired as a Vocational Rehabilitation Specialist in 2010 and assigned to the Mental Health Service Line where Complainant was also assigned. Coworker 7 stated that Complainant was often sought out for guidance and management issues, was assigned to different committees by management, and noted that management and staff always sought Complainant out for assistance. Coworker 7 stated that in 2011 things changed when they got new management and Doctor 1 was named as the new Mental Health Service Line Director. Coworker 7 stated that the Social Work Supervisor became the Associate Chief. Coworker 7 explained she started hearing the supervisor say that Complainant was incompetent and not liked. Coworker 7 stated she was told by an employee that Doctor 1 said to stay away from Complainant if she knew what was good for her. Coworker 7 stated that the word got around and most employees started to avoid Complainant. Coworker 7 stated that she chose to continue to associate with Complainant. Coworker 7 stated that as a result she was targeted by Doctor 1 and accused of improper actions. Coworker 7 claimed this was "a pattern of abuse, discrimination and bullying that [Complainant], myself and other strong women of color and other minorities experienced at the Fayetteville, VA." Coworker 7 claimed that Doctor 1 disliked women of color. Coworker 7 stated "there is a climate at the VA where retaliation is condoned" and there is "blatant discriminatory practices, bullying, setting personnel up by enlisting others by the use of threats and fear of their own jobs." These statements, along with concerns raised by Complainant, should have been recognized as raising a genuine issue of material fact with regard to the Agency's explanation for why Complainant was issued a reprimand. These statements provide sufficient detail, criticizing the way Complainant was treated by management officials and suggesting that discrimination and/or retaliation may have played a role in the Agency's issuance of a reprimand. The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). 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, § I; 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). In light of the existence of genuine issues of material fact in this case, the AJ erred in granting summary judgment. CONCLUSION Accordingly, the Agency's final order finding no discrimination is VACATED and the complaint is REMANDED for further processing in accordance with this decision and the Order listed herein. ORDER The Agency shall submit to the Hearings Unit of the EEOC's Charlotte District Office the request for a hearing and a copy of the complaint file to the EEOC Hearings Unit within 30 days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the request for a hearing and the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall 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 September 21, 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 The record reveals that Person A served as a Social Work Clinical Supervisor from March 29, 2010 until April 2012. In April 2012, Person A became the Associate Chief of Social Work Service. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161636 2 0120161636