[Redacted], Alisa M., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020001901 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisa M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020001901 Hearing No. 530-2019-00419X Agency No. FBI-2019-00109 DECISION Complainant timely 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 26, 2019, 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. ISSUES PRESENTED The issues presented are: 1) whether the EEOC Administrative Judge (AJ) properly issued a Decision without a Hearing; and 2) whether the AJ properly dismissed a portion of Complainant’s complaint. 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. 2020001901 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Language Analyst (LA) at the Agency’s Field Office in Pittsburg, Pennsylvania. The Supervisory Foreign Language Program Coordinator served as Complainant’s first-level supervisor (S1). On January 11, 2018, Complainant contacted an EEO Counselor and filed a formal EEO complaint on February 5, 2018, as amended, alleging that the Agency subjected her to discrimination and harassment on the bases of national origin (Chinese), sex (female), and reprisal for prior protected EEO activity when: 1. Around August 23, 2012, S1 informed her that he had not had sex with his wife in two years, and he asked her age and whether she liked younger men; 2. Around December 2012, S1 asked for her age and whether she liked younger men; 3. On January 4, 2013, her translation was changed without her consent; 4. On March 19, 2013, she received a “Not Satisfactory” rating on two Foreign Intelligence Surveillance Act (FISA) tech cuts/translations; 5. On March 26, 2013, S1 refused to sign her Intelligence Scholars Program application; 6. On May 16 and 17, 2013, her compensatory time and overtime requests were denied; 7. On June 4, 2014, S1 denied her leave request; 8. On October 1, 2014, S1 had her make up hours of work she missed when she attended a retirement party; 9. On October 10, 2014, S1 threatened to fire her; 10. From January 22 to February 4, 2015, S1 provided her with "an enormous workload and short deadlines"; 11. On February 3, 2015, her request to apply for a Temporary Duty (TOY) assignment was denied; 12. On January 25, 2016, S1 scolded and intimidated her; 13. On December 18, 2017, she was the only employee who was required to use leave in order to attend an offsite Cyber teambuilding party; 14. On January 8, 2018, she was reprimanded for not completing a non-mandatory training; 2020001901 3 15. On January 18, 2018, she was issued a written disciplinary statement; 16. On January 19, 2018, her nomination for the 2017 Language Analyst/Linguist of the Year Award was rescinded; 17. Between June 11 and July 19, 2018, she was subjected to unrealistic and excessive demands and expectations; and 18. On September 21, 2018, after being allotted 24 hours of overtime (OT), 6 hours were taken away and assigned to another employee. On June 1, 2018, the Agency issued a partial acceptance/dismissal of Complainant’s complaint. Therein, the Agency dismissed claims 1-12, for untimely EEO Counselor contact, finding that these events occurred more than two years before Complainant contacted an EEO Counselor on January 11, 2018. Following the investigation regarding claims 13-18, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a Decision without a Hearing finding no discrimination. AJ’s Decision The AJ initially denied Complainant’s request to reinstate claims 1-12, which the Agency dismissed on June 1, 2018. The AJ specifically noted that while S1 allegedly subjected Complainant to harassment from August 2012 through January 2016 and was the same supervisor who allegedly subjected Complainant to harassment beginning in December 2017, there was no indication of harassment for an almost two-year period. Therefore, the AJ found that Complainant’s prior allegations could not be considered part of the one continuous pattern of a hostile work environment. The AJ also noted that Complainant did not identify an act of sexual harassment that occurred within 45 days of her EEO Counselor contact. In addressing the accepted issues of Complainant’s complaint, claims 13-18, the AJ found that Complainant did not establish that the Agency’s legitimate, nondiscriminatory reasons were pretextual. With respect to claim 13, the AJ noted that S1 was enforcing a policy amongst all of his subordinates, that they take leave in order to attend events not related to their work. Regarding claims 14 and 15, the AJ noted that Complainant was the only employee who did not take the training, and when S1 and other management officials asked Complainant to take the training and extended the deadline, Complainant became enraged and yelled at management. The AJ further noted, with regard to claim 16, that S1 did not support Complainant’s nomination because of her unprofessional behavior, which included declining work assignments on two occasions. Regarding claim 17, the AJ observed that the office was understaffed, and Complainant was the only Chinese LA who could work on verbatim translations. The AJ further noted that Complainant admitted that S1 granted her an extension with her work when she required it. 2020001901 4 As for claim 18, the Agency noted that the 24-hour allotment of overtime was not specifically set aside for Complainant alone, and it was S1’s job to distribute overtime hours evenly among employees. On November 26, 2019, the Agency issued its final order adopting the AJ’s decision finding of no discrimination. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, asserts that the AJ issued a Decision without a Hearing without providing her notice or an opportunity to respond. Complainant maintains that the AJ only issued an Initial Order merely instructing the parties to show what evidence in Report of Investigation (ROI) established that discrimination occurred, what documentation was absent from the ROI, and proof of damages. Complainant contends that nowhere in her Initial Order did the AJ mention that she had determined that some or all facts were not in genuine dispute or that she intended to issue a Decision without a Hearing. Additionally, Complainant argues that the AJ erred in denying her request to reinstate her claims of harassment regarding the events that occurred from August 2012 through January 2016. Complainant maintains that S1 has subjected her to a continuous hostile work environment ever since she rejected his sexual advances in August 2012. Therefore, Complainant asserts that because the hostility towards her continued from August 2012 through her EEO Counselor contact, the Agency improperly dismissed her claims of a hostile work environment in its partial acceptance/dismissal dated June 1, 2018. The Agency responded to Complainant’s brief on appeal, requesting that we affirm its final order adopting the AJ’s decision finding no discrimination. However, the Agency did not address Complainant’s contentions that the AJ issued a decision without providing the parties with notice or an opportunity to respond. The Agency also did not address Complainant’s assertions that claims 1-12 were improperly dismissed. 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). 2020001901 5 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 Chapter 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 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. 2020001901 6 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). Upon review, we find that the AJ erred in issuing her September 23, 2019 decision, because Complainant was not provided with any notice of her intention to issue a decision without a hearing nor given the opportunity to respond. Prior to the issuance of the decision, on July 25, 2019, the AJ only issued an Order for Initial Conference Report and Teleconference (Initial Order). In the Initial Order, the AJ made no mention of a determination that there were not any material facts in genuine dispute or that she intended to issue a decision without a hearing. The Commission’s regulations provide that an Administrative Judge may propose to issue a Decision without a Hearing sua sponte (or, “on his or her own motion”) if: … the administrative judge determines upon his or her own initiative that some or all facts are not in genuine dispute, he or she may, after giving notice to the parties and providing them an opportunity to respond in writing within 15 calendar days, issue an order limiting the scope of the hearing or issue a decision without holding a hearing. 29 C.F.R. § 1614.109(g)(3); see also EEO MD-110, at Chap. 7, § III.E.2. We find that the AJ failed to follow the Commission regulations herein, as Complainant was not provided with any notice of the AJ’s proposal to issue a decision without a hearing or given an opportunity to respond. As such, we find that the AJ improperly issued the September 23, 2019 decision finding no discrimination. Dismissed Claims 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. Here, we find that claims 4, 5, 6, 7, 8, 10, and 11 are comprised of untimely tangible employment actions that are not independently actionable. The dismissal of these claims, pursuant to 29 C.F.R. 1614.107(a)(2), was proper. The Supreme Court has held that a complaint 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 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (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. 2020001901 7 The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Therefore, to the extent that claims 1 - 12 are connected to Complainant’s overall hostile work environment claim, they shall be considered as background evidence in support of the timely acts (claims 13 - 18) as part of her allegation of a hostile work environment. All the claims occurred within the same facility and involve the same supervisor (S1). Complainant asserts that, since August 2012, S1 subjected her to a hostile work environment because she rebuffed his attempt to have a sexual relationship with her. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ erred in issuing a Decision without a Hearing and in dismissing a portion of Complainant's complaint for untimely EEO Counselor contact. Accordingly, we VACATE the Agency's final order and REMAND the case for further processing in accordance with the order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC's Philadelphia 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 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020001901 8 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020001901 9 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020001901 10 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, 2021 Date