Marc J. Samuels, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity CommissionMay 9, 2012
0120093633 (E.E.O.C. May. 9, 2012)

0120093633

05-09-2012

Marc J. Samuels, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.


Marc J. Samuels,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Federal Emergency Management Agency),

Agency.

Appeal No. 0120093633

Hearing No. 461-2008-00139X

Agency No. HS-07-FEMA-002631

DECISION

On August 26, 2009, Complainant filed an appeal from the Agency's August 4, 2009 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts this appeal pursuant to

29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge erred by fragmenting Complainant's harassment claim; (2) whether the EEOC Administrative Judge erred by determining that Complainant's relevant protected activity was his March 14, 2007 EEO Counselor contact; and (3) whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist, GS-0391-11 in the Logistics Section, Telecommunications Department, at the Agency's Joint Field Office in Baton Rouge, Louisiana.

Complainant began working for the Agency in February 2006. Complainant was part of a four-member Telecommunications department that included himself, his first level supervisor (S1), and two co-workers (C1;1 C2 - female). All members of the department are Caucasian.

In a December 14, 2006 email to S1, Complainant wrote the following:

Please respect my sensitivity to bigotry. Comments like this morning's about doing an installation as white people, last week's depriving a black woman of her station number after a move and discussing egging black kids is most repulsive to me. I am going through a particularly sensitive period and cannot handle this department's chronic disrespect for minorities.

In his response to the Agency's interrogatories, Complainant wrote, "After many verbal confrontations about our department's bigotry, I penned this [December 14, 2006] email to [S1]." In his deposition, Complainant testified that he had previously complained to S1 and C1 about other incidents of racial bigotry involving department members.2

In his affidavit, Complainant averred that the department retaliated against him for his complaints about racial bigotry and tried to force him to resign. Specifically, Complainant averred that the department "became tired of [his] conversations with them asking them to refra[in] from their activities of ... bigotry, racism, distribution of racial media, [and] discrimination against minority [Agency] employees" and "did all that could be done to force [him] to resign fearing [his] testimony against them."

In support of his claim, Complainant alleged that management denied him early dismissal under the "59 minute rule,"3 assigned him an increasingly disproportionate amount of work, moved him out of the department's office, used profane language, delayed approving his leave, rated him "Less Than Expected" for teamwork on his quarterly evaluation, intentionally lost his pay period paperwork, "cooked up" a sexual harassment complaint against him involving C2, placed him in a non-duty, non-pay status while investigating the alleged sexual harassment, and ultimately terminated his employment for "Conduct Unbecoming a Federal Employee."

On March 14, 2007, Complainant contacted an EEO Counselor for the first time. Subsequently, Complainant filed a formal EEO complaint4 alleging that the Agency subjected him to hostile work environment harassment on the basis of reprisal for prior protected EEO activity. As evidence of his claim, Complainant alleged the following:

1. On November 9, 2006, December 29, 2006, April 6, 2007, April 27, 2007, and May 25, 2007, S1 denied him early dismissal under the "59 minute rule" (but allowed other employees to leave early) and did not provide him additional compensation for the work he performed;

2. From January 2007 to May 2007, S1 assigned him an increasingly higher percentage of the department's work and refused to provide him with assistance, including requiring him to do 60 percent of the job tickets in April 2007 without assistance;

3. On March 14, 2007, S1 isolated him from other employees by moving him out of the department's office;

4. On March 14, 2007, S1 telephoned him at home and used profanity;

5. In June 2007, S2 delayed approving his leave and approved it only hours before his scheduled departure on leave;

6. On June 29, 2007, S1 indicated on his quarterly evaluation report that he was not a team player;

7. On an unspecified date, S1 intentionally lost his pay period paperwork

8. On August 14, 2007, management placed him in a non-duty, non-pay status; and

9. On October 10, 2007, management terminated his employment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 3, 2009 motion for a decision without a hearing and issued a decision without a hearing on July 23, 2009. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that he was subjected to discrimination as alleged.

AJ's Decision Without a Hearing

First, the AJ found that incidents 5 and 6 failed to state a claim.5 Specifically, the AJ determined that Complainant did not suffer a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. In addition, the AJ determined that the Agency's actions would not be reasonably likely to deter Complainant or others from engaging in protected activity.

Second, the AJ found that Complainant failed to establish a prima facie case of reprisal discrimination in incidents 1, 3, and 4. Specifically, the AJ determined that there was no nexus between Complainant's prior protected EEO activity and the adverse actions because the latter occurred before his March 14, 2007 EEO Counselor contact.

Third, the AJ analyzed incidents 1- 9 under a disparate treatment framework and found that Complainant failed to establish pretext. For each incident, the AJ concluded that there was no evidence of a retaliatory motive by management.

Regarding incident 1, the AJ found that S1 offered Complainant compensatory time off for any work during the 59 minute period. In addition, the AJ cited S1's testimony that any work done by Complainant during the 59 minute period was voluntary. Regarding incident 2, the AJ found that Complainant had a great deal of autonomy on a daily basis in deciding the type of work he was going to do and when he was going to do it. In addition, the AJ found that the telecommunications department used various methods, both formal and ad hoc, to assign work. Moreover, the AJ found that Complainant did not contend that the way S1 assigned him work, or the amount of work he performed, varied after his March 14, 2007 EEO Counselor contact. Regarding incident 4, the AJ found that S1 used profanity in the workplace, which was not directed at Complainant, before Complainant's March 14, 2007 EEO Counselor contact. Regarding incident 5, the AJ found that S2 had issued a directive to all employees that leave requests, especially during the June to November hurricane season, could be disapproved based on the needs of the Agency. Regarding incident 7, the AJ found that there was no evidence in the record that S1 misplaced the paperwork at all, let alone that it was anything other than an inadvertent mistake. In addition, the AJ found that Complainant suffered no harm because he was timely paid. Regarding incidents 3, 6, 8, and 9, the AJ found that management's actions were in accordance with Agency policy and were in direct reaction to Complainant's sexual harassment of C2.

CONTENTIONS ON APPEAL

On appeal, Complainant argued that the AJ denied him the right to present his evidence at a hearing. As to incident 1, Complainant asserted that the Agency paid all employees in his department for the 59 minute period, but that he had to work while everyone else had the time off. As to incident 2, Complainant asserted that the work orders in the record show that his workload increased from 30 percent of the department's workload to more than 70 percent of the department's workload. As to C2's sexual harassment complaint, Complainant asserted that he was being "ba[i]ted" by C2 because she was the one that initiated contact and the conversation with him.

The Agency did not submit a brief in response to Complainant's appeal.

ANALYSIS AND FINDINGS

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 Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an AJ's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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 EEO MD-110, at Ch. 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").

AJ's Improper Fragmentation of Complainant's Harassment Claim

A claim refers to an assertion of an unlawful employment practice or policy for which, if proven, there is a remedy under the federal equal employment statutes. EEO MD-110, at Ch. 5, � III. Fragmentation, or breaking up, of a complainant's legal claim often results from a failure to distinguish between the claim a complainant is raising and the evidence (factual information) he is offering in support of that claim. Id. Often, when an agency identifies each piece of factual evidence (usually comprising a single incident) offered by the complainant as a separate and distinct legal claim, it ignores a complainant's real underlying claim of a pattern of ongoing discrimination. Id. The Commission has discouraged this practice because it prevents the statement of a coherent and integrated claim. Id.

In the instant case, we find that the AJ erred by fragmenting Complainant's harassment claim. We note that the Agency's November 16, 2007 and December 12, 2007 acceptance letters recognized that Complainant was alleging a hostile work environment and a continuing pattern of discrimination. The AJ, however, treated all of the incidents cited by Complainant as separate claims, rather than considering them as part of an ongoing harassment claim. Based on the record, we find that Complainant's complaint should be viewed as alleging one ongoing unlawful employment practice claim, that is, that the Agency allegedly subjected him to a hostile work environment based on reprisal when management, particularly S1, repeatedly took actions to force him to resign. We find that the AJ erred by failing to recognize that Complainant was raising a claim of harassment. Accordingly, we find that incidents 1-9 should be considered as evidence in support of Complainant's harassment claim.

Complainant's Prior Protected EEO Activity

The anti-retaliation provisions make it unlawful to discriminate against an individual because he has opposed any practice made unlawful under the employment discrimination statutes. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.B. (May 20, 1998). This protection applies if an individual explicitly or implicitly communicates to his employer a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC. Id. An example of opposition includes complaining to anyone about alleged discrimination against oneself or others. Id.

In the instant case, we find that the AJ erred in determining that Complainant's relevant protected activity was his March 14, 2007 EEO Counselor contact. We find that Complainant engaged in opposition activity, at the very latest, when he sent the December 14, 2006 email to S1 complaining about racial bigotry in the department. In addition, Complainant stated in his response to the Agency's interrogatories and in his deposition that, prior to sending the email, he had verbally complained to department members about the racial bigotry in the department. Furthermore, when asked by the EEO Investigator why he believed the Agency's actions were retaliatory, Complainant averred in his affidavit that the department was tired of his complaints about bigotry and racism. Accordingly, we find that Complainant engaged in protected EEO activity when he complained to department members about racial bigotry in the department and that such protected EEO activity is the basis of his complaint.

AJ's Issuance of a Decision Without a Hearing

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 in issuing a decision without a hearing because there are genuine issues of material fact remaining in this case. Specifically, the record reflects that the parties dispute whether Complainant was subjected to tangible employment actions such as the denial of early dismissal under the "59 minute rule" and the unequal distribution of work assignments.

Regarding the denial of the "59 minute rule," Complainant averred in his affidavit that he "had to stay," was "left behind," and was "called by [S1]" when S1 and his co-workers were on their way out the door. In contrast, S1 averred in his affidavit that Complainant was never denied the "59 minute rule" and that "[e]ach time it was his choice to stay behind." The record does not contain any documentary evidence showing whether S1 forced Complainant to work or whether Complainant voluntarily worked.

Regarding the unequal assignment of work orders, Complainant averred in his affidavit that "[S1] or his spokesperson [C1], assigned work orders to [him] using the [Agency]'s Remedy work order database," that there was a "steady increase in work [he] did by [him]self plus [a] steady increase in the percentage of the total department work [he] did," and that his "increase in work load was offset by decreases in work load from [his] co-workers." In contrast, S1 averred in his affidavit that Complainant was not assigned 60 percent of the workload and that "workload is usually assigned to the group through the remedy system, however, he often assigned the work to himself." The record contains the following documentary evidence involving the work orders: (a) a 169 page spreadsheet of the department's work orders from July 5, 2006 to June 29, 2007, with a column indicating who submitted each work orders; and (b) "trend charts" created by Complainant comparing the amount of work he did with the amount of work his co-workers did. The documentary evidence, however, does not include any information about who - S1, Complainant, or someone else - assigned each work order.

Based on the above, we find that there is a genuine dispute as to whether S1 denied Complainant the "59 minute rule" or assigned him an increasingly disproportionate amount of work. We find that whether these incidents happened as alleged is a question of fact, material to the disposition of Complainant's 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, at Ch. 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 [a] 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 Complainant and various Agency employees, including S1. Therefore, judgment as a matter of law for the Agency should not have been granted as to whether the Agency subjected Complainant to hostile work environment harassment because of his prior protected EEO activity.

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 Complainant's complaint to the Agency in accordance with this decision and the Order below.6

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the New Orleans Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing 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 (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 (M0610)

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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney

with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

________________________

Carlton M. Hadden, Director

Office of Federal Operations

___5/9/12_______________

Date

1 According to Complainant, C1 was his former first level supervisor.

2 Complainant testified about the use of racial slurs, the discriminatory treatment of minority employees, and the playing of racist music.

3 The "59 minute rule" allows the Agency to grant employees up to 59 minutes of administrative leave. This typically occurs on the day before a Federal holiday, but can also occur during inclement weather. Employees would be paid for a normal eight-hour work day.

4 Complainant filed a formal complaint on August 29, 2007 and amended it on November 16, 2007.

5 Despite initially finding that incidents 5 and 6 failed to state a claim, the AJ later analyzed them on the merits under a disparate treatment framework.

6 Because of our determination regarding Complainant's allegation of harassment concerning the denial of the "59 minute rule" and the unequal assignment of work orders, in order to avoid fragmentation, we are remanding all the allegations in Complainant's complaint at this time.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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