EEOC Appeal No. 0120150997
04-03-2018
Marvella B. v. Gen. Serv. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marvella B.,1
Complainant,
v.
Emily W. Murphy,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120150997
Hearing No. 520-2013-00297X
Agency No. 12-R2-FAS-SJ-03
DECISION
On December 19, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 21, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission VACATES the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case by summary judgment; and (2) whether the Agency properly dismissed two issues for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Procurement Analyst at the Agency's Northeast Supply Operations Center (NSOC) in New York, New York. Between February 8, 2011, and June 2011, Complainant's first-line supervisor was the Acquisitions Systems Director (S1). In June 2011, the NSOC Deputy Director (S2) became Complainant's first-line supervisor. At all times relevant to this complaint, Complainant's second-line supervisor was the NSOC Director (S3). According to Complainant, S3 treats African-American females who are over the age of 40 worse than other employees.
In February 2011, Complainant was detailed to the Digitization Project. The Digitization Project was to entail Complainant working with contractors to scan Global Supply paper contract files. Complainant alleged that her Contracting Officer's warrant was taken away from her while she was assigned to the Digitization Project.
Complainant stated that S3 has asked when she planned to retire on about three occasions, including during the summer of 2011 and in the fall of 2011. S3 denied asking Complainant when she planned to retire or mentioning Complainant leaving the Agency. According to S3, he did ask Complainant to do her job. S2 denied hearing S3 ask Complainant about retirement. A 59-year-old African-American Supply System Analyst (C1) stated that S3 has asked him on a number of occasions whether he was eligible for retirement and when he planned to retire. According to C1, he did not think that S3 was pressuring him to retire, but he thought that S3 was trying to assess how long his subordinates would remain in the workforce.
Complainant averred that the contract Project Manager (C2)2 approached her around October 31, 2011, to let her know that S1 and S3 asked her about Complainant and tried to get C2 to criticize Complainant's work performance. S3 denied asking C2 about Complainant's performance and stated that he asked C2 why the digitization was going so slowly and that C2 responded that Complainant had been teaching the contractors to deal with Multiple Award Schedule files, not Global Supply files. S1 confirmed S3's account of the meeting with C2.
Complainant initiated contact with an EEO Counselor on November 14, 2011. On December 13, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (40) when:
1. Beginning February 2011 and continuing, management has been asking Complainant if she was planning to retire;
2. On or about February 21, 2011, management detailed Complainant to the Digitization Project;
3. On or about March 7, 2011, management took away Complainant's Contracting Officer's warrant; and
4. On or about October 25, 2011, Complainant was informed that management held a meeting with contract employees and attempted to solicit derogatory written statements about Complainant's work performance on the Digitization Project.
The Agency dismissed claims two and three pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the incidents in the dismissed claims could be considered as background information during the investigation of claims 1 and 4. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an AJ. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a summary judgment decision on October 24, 2014.
The AJ concluded that Complainant failed to establish a hostile work environment based on age because S3 asking her when she planned to retire on three occasions over the span of three to five months was not sufficiently severe or pervasive to constitute a hostile work environment based on age. The AJ also determined that Complainant failed to establish that she was harassed based on race or sex because she failed to establish that she was subjected to sufficiently severe or pervasive conduct to constitute a Title VII violation.
The Agency's final action fully implemented the AJ's decision. The instant appeal followed.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency raise any contentions on appeal.
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 summary judgment, 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
Summary Judgment
We must determine whether it was appropriate for the AJ to have issued a summary judgment decision on this record. The Commission's regulations allow an AJ to issue a summary judgment decision 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 summary judgment, (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 summary judgment. 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 summary judgment).
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 determined that Complainant failed to establish that she was subjected to conduct that was sufficiently severe or pervasive to create a hostile work environment. However, to reach this determination, the AJ improperly weighed the evidence and relied on the credibility of management officials.
Complainant's allegation that S3 asked her on multiple occasions when she planned to retire is corroborated by C1's testimony that S3 similarly asked him about his retirement plans. Whether S3's questions about Complainant's retirement plans over the span of several months were motivated by age related animus and whether, in light of these questions, S3's actions towards Complainant were colored by such animus, is a credibility issue requiring a hearing on the merits in this matter. The Commission has held that "an inquiry into an employee's retirement plans, without more" does not establish discriminatory animus. Zielinski v. Social Security Administration, EEOC Appeal No. 01950009 (Nov. 21, 1996). However, the Supreme Court has held that, while age and retirement eligibility are analytically distinct, it is possible that an employer may use eligibility for a pension or for retirement as a proxy for age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 612-13 (1993). The Commission has found age-based animus where an agency relies on stereotypes that older workers who are close to retirement have lost their motivation, drive, and utility. See Varley v. Dep't of Justice, EEOC Appeal No. 01972338 (Dec. 3, 1998). Therefore, the AJ must assess S3's credibility to determine whether S3 relied on age-based stereotypes or whether there is other evidence of discriminatory animus. If all actions alleged, occurred based upon age related animus, then they arguably would be sufficiently severe or pervasive to create a hostile work environment, especially when combined with other alleged incidents that are pending in the EEO process, as discussed below.
Further, with respect to Complainant's claim that S1 and S3 met with C2 to solicit negative feedback about Complainant, the record is insufficiently developed. Because C2 did not participate in the EEO investigation, the AJ improperly relied on the credibility of S1 and S3's testimony in concluding that S1 and S3 did not question C2 about Complainant's performance or that any questions posed were not motivated by discriminatory animus. Complainant should get the opportunity to cross-examine S1 and S3 at the hearing.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 7, � I (Aug. 5, 2015); see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). 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 hostile work environment claim.
Procedural Dismissals
Finally, we address the Agency's dismissal of claims 2 and 3 for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Here, Complainant provides no justification for her untimely EEO Counselor contact. Accordingly, the Agency properly dismissed claims 2 and 3 as untimely discrete acts.
However, we find that the Agency and the AJ improperly failed to consider whether claims 2 and 3 were part of a continuing violation. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Neither the AJ's decision nor the Agency's final order addressed claims 2 and 3, even though they appear to be part of the same unlawful practice as timely harassment claims 1 and 4. Accordingly, on remand, we order the AJ to reverse the Agency's dismissal of claims 2 and 3 and conduct a hearing on Complainant's hostile work environment claim, consisting of allegations 1 through 4.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the ORDER below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC New York District Office Hearings Unit 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 New York District Office Hearings Unit. Thereafter, the Administrative Judge shall reverse the Agency's procedural dismissal of claims 2 and 3 of the instant matter and shall hold a hearing on Complainant's complaint, claims 1 through 4 of the instant matter. At the hearing, Complainant shall have the opportunity to present her case and the opportunity to cross-examine all Agency witnesses, including S1 and S3. The Administrative Judge shall thereafter issue a decision 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
1.
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
4-3-18
______________________________
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 C2, who was a contractor and not a government employee, declined to participate in the investigation.
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