[Redacted], Chara S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2020003336 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chara S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003336 Hearing No. 530-2016-00395X Agency No. BOP-2012-0881 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 21, 2020 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 and REMANDS the complaint for a hearing. ISSUE The issue is whether the Administrative Judge properly granted the Agency’s motion to dismiss 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. 2020003336 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Correctional Systems Specialist at the Agency’s Federal Detention Center in Philadelphia, Pennsylvania. Complainant reported to her first-line supervisor (S1) (age 43, male, Caucasian, U.S. citizen, prior EEO activity). Report of Investigation (ROI) at 108. Complainant stated that she and a coworker (CW) (age 43, male, African American (Black), no prior EEO activity) rotated the day and evening shifts, and in March 2012, Complainant requested to remain on the day shift, but S1 denied her request. ROI at 79. On June 5, 2012, Complainant contacted an EEO Counselor and filed a formal EEO complaint on August 3, 2012, alleging that the Agency discriminated against her on the bases of race (African-American), national origin (African-American), sex (female), and age (52), and in reprisal for prior protected EEO activity, when: 1. from April 3, 2012, through July 2012, Complainant was subjected to harassment in the form of a denial of her requested work schedule; denied opportunity to discuss departmental issues with her direct supervisor; and attempts were made to undermine Complainant’s authority; 2. in May 2011, and May 2010, Complainant was not invited to office meetings, her suggestions were disregarded, and the Associate Warden did not resolve any of her issues; 3. in April 2011, Complainant noticed that her supervisor had adjusted a coworker’s schedule, and Complainant supervised the incoming inmate bus; 4. on March 4, 2011, Complainant’s supervisor ignored the “EAP” analysis and input that Complainant provided; and 5. in November 2009, Complainant was removed from a Program Review Team in Puerto Rico. The Agency accepted claim 1 for investigation but dismissed claims 2-5 as untimely. ROI at 58. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and she requested a hearing before an EEOC Administrative Judge (AJ). On December 7, 2018, the Agency filed a Motion to Dismiss for untimely filing of the EEO complaint; failure to state a claim; and failure to comply with judicial orders. Complainant opposed the Agency’s motion on December 20, 2018. Complainant stated that she was out of town on vacation in July 2012, which could be proven with her time records, and that she timely filed her EEO complaint in August 2012. Complainant also stated that she followed all judicial orders in this process and was not aware of the scheduled conference call. 2020003336 3 On March 31, 2020, the AJ granted the Agency’s motion. The AJ noted that, while the Agency provided three reasons, the complaint could be dismissed for failure to state a claim and she did not address the other two reasons. The AJ found that Complainant failed to establish a claim of discriminatory harassment because her allegations did not result in a tangible employment action. The AJ stated that each alleged incident failed to rise to the level of severity to be deemed actionable under the law, and that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment, and that actions taken by the alleged discriminating officials were routine managerial actions such as duty time scheduling, which absent discriminatory animus, will not be second-guessed by the Commission. The AJ also determined that Complainant had not shown discriminatory animus by preponderant evidence. The AJ concluded that Complainant failed to state a claim and granted the Agency’s Motion to Dismiss. The Agency issued a final order and implemented the AJ’s decision. The Agency noted that Complainant’s allegations in this matter were sufficient to state a claim of a hostile work environment and it disagreed with the AJ’s dismissal of the claim. However, the Agency noted that the AJ discussed the merits of Complainant’s allegations and properly found that there was insufficient evidence that Complainant was denied her preferred work schedule; was denied the opportunity to discuss departmental matters with S1; or that S1 undermined her authority based on one of Complainant’s protected traits or her prior protected EEO activity. Accordingly, the Agency’s final order implemented the AJ’s decision. Complainant filed the instant appeal and submitted briefs in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant disputes that AJ’s “findings in summary judgment and her decision,” and submits evidence, some new, in support of her appeal. Complainant states that she sought other employment and was not selected, despite being found Best Qualified for some vacancies, and that in January or February 2013, she was issued a letter of reprimand. Complainant states that the Commission has found that an allegation is sufficient to state a claim for retaliatory harassment intended to deter a complainant from using the EEO process, and that the Agency was aware that Complainant previously participated in the EEO process. Complainant asserts that the ROI notes that she included a basis of reprisal, but that the investigation was not adequately developed. Complainant argues that S1 created a hostile work environment because he provided no communication on the day-to-day operations and excluded Complainant from meetings. Complainant asserts that information is needed regarding the processing of incoming and outgoing inmates, and that the safety of the institution can be compromised without proper 2020003336 4 communication among staff. Complainant adds that she would be held accountable for not preparing staff for situations that arose on her shift. Complainant argues that there are material facts in dispute and credibility issues, and she requests a remand for a full hearing. Agency’s Contentions The Agency argues that Complainant failed to meet her burden in demonstrating that she suffered harassment on the bases of race, sex, national origin, age or reprisal. The Agency asserts that Complainant failed to present any evidence that she was not afforded the right to discuss departmental issues or had her authority undermined due to her protected classes. The Agency argues that, even if Complainant could establish a prima facie case of discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions, and that Complainant could not establish pretext for discrimination. For example, the Agency states that there was no evidence that S1’s response that he would address any departmental matters with the person directly to have the matter quickly resolved, or share the information with both supervisors, was pretextual. The Agency requests that the Commission sustain its final order. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the 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”). 2020003336 5 ANALYSIS AND FINDINGS Claims As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See id, at Chap. 9, § IV.A.3. Complainant did not contest the Agency’s procedural dismissal of claims 2-5; as such, we will not address these claims in the instant decision. In addition, Complainant raised new claims and evidence related to non-selections and a reprimand. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should she wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact would have been timely on the date she filed her appeal (May 6, 2020), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date she receives this decision. Dismissal of Complaint Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Here, Complainant claimed that she was subjected to harassment for approximately three months, from April to July 2012. For example, Complainant stated that S1 would go directly to her subordinates with information about departmental issues and pass by her office without saying anything. Complainant stated that she would then learn the news from her subordinates who shared the information because they knew that S1 did not inform her. Complainant stated that from April through July, S1 barely spoke to her. ROI at 83, 85. Complainant also stated that she did not attend most of the departmental meetings because they were scheduled during a different shift or when she was on leave. ROI at 88. 2020003336 6 Complainant asserted that S1’s withholding of information potentially affected the safety of the institution, and that she would be held accountable for not preparing staff for situations that arose on her shift. We find that Complainant’s harassment claim raises allegations of an alteration in the conditions of her employment, and that they sufficiently state a claim of a hostile work environment. Accordingly, we find that the AJ erred when she granted the Agency’s motion to dismiss Complainant’s harassment claim. However, we note that the AJ addressed the merits of Complainant’s harassment claim and effectively issued a decision without a hearing. Decision without a Hearing We must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Issuing a decision without holding a hearing is not appropriate for a case that can only be resolved by weighing conflicting evidence. If the non-moving party “has not had the opportunity to discover information that is essential to his opposition,” then a decision without a hearing is inappropriate. Anderson, 477 U.S. at 250. The AJ must enable the non-moving party to engage in sufficient discovery to respond to a motion for a decision without a hearing. After receiving an opposition to a motion for a decision without a hearing, an AJ may order discovery as necessary. 29 C.F.R. § 1614.109(g)(2). We carefully reviewed the record and find that it is not adequately developed because it contains insufficient evidence on Complainant’s retaliation claim. We note that S1 was not asked about his knowledge of Complainant’s prior EEO activity, and he was only asked if his actions were motivated by any of Complainant’s protected categories, including her prior EEO activity, to which S1 responded “no.” ROI at 120. However, the record does not contain any evidence regarding when S1 learned of Complainant’s prior protected EEO activity. As such, we find that the record is not adequately developed on Complainant’s allegation that S1 retaliated against her for her prior EEO activity. 2020003336 7 Further, we find that the AJ improperly determined that Complainant had not shown discriminatory animus by preponderant evidence. A review of the record shows that witnesses supported Complainant’s allegations that S1’s actions were motivated by Complainant’s protected bases. ROI at 137, 141, 174, 208. As such, we find that there is a genuine dispute regarding the material fact of S1’s motivation for his actions. We also find that a hearing is needed to address credibility issues. 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 Chap. 7, §I; 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). S1 denied withholding information from Complainant and stated that he disseminated information to both supervisors, especially if it affected a supervisor on a particular shift. ROI at 113. However, witnesses provided evidence to dispute S1’s assertions. For example, one witness stated that S1 would “bypass” Complainant 95% of the time and only address CW, and that S1 would wait until Complainant left her shift to address matters with CW. ROI at 136. Another witness corroborated that S1 would send information to CW, and not Complainant, and S1 would wait until CW came in and share information with him. ROI at 148. A third witness stated that there was “quite a bit” that Complainant was not aware of, while CW was informed, and that S1 would meet with CW behind closed doors. ROI at 155, 157-8. Accordingly, we find that a hearing is necessary to make credibility determinations. 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 allegation that she was subjected to harassment based on her age, national origin, race or sex, or in reprisal for 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 REVERSES the Agency's final order and REMANDS the matter to the Agency in accordance with this decision and the Order below. 2020003336 8 ORDER The Agency is directed to submit a copy of the complaint file to the EEOC 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). 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 2020003336 9 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. 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. 2020003336 10 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 August 9, 2021 Date Copy with citationCopy as parenthetical citation