[Redacted], Dan H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 29, 2021

Appeal No. 2019004955 (E.E.O.C. Jun. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dan H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019004955 Hearing No. 410-2018-00148X Agency No. 2001-0508-2017103878 DECISION 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 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. For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Medical Support Assistant at the Agency’s Medical Center in Decatur, Georgia. Report of Investigation (ROI), at 10. The Call Center Chief was assigned as Complainant’s third-level supervisor (S3), and the Assistant Nurse Manager served as Complainant’s second-level supervisor (S2). ROI, at 38. Complainant maintained that he had been called as a witness to testify before an Administrative Investigative Board (AIB) as a result multiple EEO complaints filed against S2 and S3 by 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. 2019004955 2 employees regarding complaints of harassment, bullying, and the overtime assignments. Id. at 38. Also, according to Complainant, on February 13, 2017, he, a Medical Support Assistant, and another employee were instructed to meet with the Medical Center Director. Id. at 6. Complainant stated that the Medical Center Director wanted to meet to discuss concerns that had been reported about S2 and S3’s treatment of employees. Id. According to Complainant, S2 and S3 began to retaliate against him shortly thereafter, which included ending his ability to work overtime, overly scrutinizing his work, reprimanding him, and falsely accusing him of sexual harassment. Specifically, according to Complainant, S3 coerced a subordinate employee (SE) (female) of his to file two EEO complaints against him wherein it was falsely alleged that he had subjected SE to sexual harassment. Id. at 40-41. Complainant averred that SE confided in him that S2 and S3 had told her what to say and write in the EEO complaints made against him. Id. Complainant averred, moreover, that SE informed him that she was a probationary employee and she was afraid she would lose her job if she did not go along with S3’s request to accuse him of sexual harassment. Id. at 12. Complainant specifically attested that he was alleged to have made unwanted sexual comments towards SE, and the news of the harassment complaints against him had been spread throughout the Agency and beyond. Id. at 41. Complainant maintained that the complaints were the gossip of the Agency and copies of the complaints had been passed around by employees within the Agency. Id. Complainant stated that he even found a copy of one sexual harassment complaint made against him on the printer. Id. According to S2 and S3, on May 4, 2017, SE voiced that Complainant had made some sexual comments to her including, “I hope you’re using condoms and if not, I will get you some.” Id. at 59. S3 further averred that SE observed Complainant standing over a female employee who was lying on the floor next to her workstation. Id. at 60. S3 stated that Complainant was then observed sitting in a chair over the female employee with his hand on her. Id. S3 additionally averred that Complainant had been accused of putting his hands on the neck of a female front desk clerk a year earlier, but there were no witnesses or corroboration and so the case was closed. Id. at 59. S2 and S3 also averred that Complainant was accused of asking SE, "Who's hitting my daughter from behind," which SE felt was insinuating that her backside had become larger. Id. at 66. On June 23, 2017, SE wrote via email that S3 had instructed her to lie on many occasions, and that S3 threatened her with retaliation if she did not lie. Id. at 165. In the email, SE insinuated that S3 had pressured her to make allegations against Complainant. SE specifically wrote in the email: My name is . . . and I have worked at the VA for only a year now on the ground floor in the call center. [S3] has treated me unfairly from the time I've been at the VA. [S3] authorized me to do many unprofessional things such as Lie for her in many occasions for example the AIB meeting. Manipulating me and coaching me stating that it was the right thing to do. If I did not agree to do certain things, then 2019004955 3 she would use retaliations through my job. She harasses me inside and outside of work whenever she feels the need to. She also gets other coworkers to bother me at work to satisfy her needs to make cases against my supervisor [Complainant]. Yes, I only agreed to do some of these things because my job was in jeopardy and I had no other choice. . . . Id. Complainant contacted an EEO Counselor on June 15, 2017, and filed an EEO complaint on July 14, 2017, alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity when: 1. He was subjected to a hostile work environment since February 13, 2017, as evidenced by the following actions: scrutinized work; verbal reprimands; privacy invasion; defamed character; vulgar name calling; meetings without cause; accused of sexual harassment; refusal to meet with him; and mismanaging an employee’s time and attendance. 2. Since March 2017, he was restricted from working overtime. 3. On August 16, 2017, he was issued written counseling. Following the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objections, the AJ assigned to the case granted the Agency's September 25, 2018, motion for a decision without a hearing and issued a decision without a hearing on June 19, 2019. The AJ determined that Complainant failed to raise any genuine issues of material fact relevant to his allegations of discrimination which would warrant a hearing. The AJ noted that, viewing the record in a light most favorable to Complainant, he failed to present evidence of discrimination based on sex or retaliation. The AJ noted that Complainant did not offer evidence to show that the Agency’s articulated reasons were pretextual. On appeal, Complainant states that his witness and exhibit list contained evidence of Agency administrative investigative findings corroborating his claims of discrimination, which could not be presented as there was no hearing. Complainant states that Agency internal investigations have found that S3 committed several acts of discrimination and reprisal against him, which he should have been allowed to present for a hearing. Complainant maintains, moreover, that he offered several reasonings in his opposition to the Agency’s motion for summary judgment as to why the Agency’s articulated reasons were pretextual. The Agency argues that Complainant has not articulated any material issue of fact and that the AJ appropriately granted summary judgment in favor of the Agency. 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 2019004955 4 “decision on an appeal from an Agency's final action shall be based on a de novo review ...”); see Equal Employment Opportunity Management Directive for 29 C.E.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). 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 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 Complainant 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 2019004955 5 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). After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was not appropriate, as the record is not sufficiently developed, there are genuine issues of material fact, and the credibility of witnesses is at issue, as explained below. Hostile Work Environment To establish a prima facie case of hostile work environment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Complainant v. Social Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Upon review, we find that genuine issues of material fact exist as to Complainant’s claim of a hostile work environment based on reprisal and sex. In so finding, we note that Complainant attested that he had been called as a witness before an Administrative Investigative Board (AIB) as a result multiple EEO complaints filed against S2 and S3 regarding complaints of discrimination and harassment. ROI, at 38. We find that genuine issues of material fact exist as to whether Complainant’s participation in the AIB investigation constituted protected EEO activity, and whether S2 and S3 took actions against Complainant due to this alleged EEO activity. We note that the record does not contain a copy of the Agency’s AIB investigation, and Complainant has contended in the record and on appeal that Agency internal investigations reveal that S3 engaged in discriminatory harassing conduct towards him. We note, moreover, that Complainant has maintained that S3 unduly coerced SE to file two EEO complaints against him wherein he was falsely alleged to have subjected SE to sexual harassment. As noted above, the record contains an email from SE wherein she wrote that S3 threatened her job security if she did not lie on S3’s behalf, and she specifically cited to being pressured by S3 to make allegations against Complainant. ROI, at 165. The email was reportedly also sent to the Medical Center Director from SE, but the record does not contain an affidavit from either SE or the Medical Center Director. Based on a review of the record, we find that the AJ improperly made credibility determinations against Complainant in favor of S2 and S3 and that there are genuine issues of material fact as to whether Complainant was subjected to a severe or pervasive work atmosphere that amounted to a hostile work environment. In so finding, we note that Complainant stated that the news of the sexual harassment complaints against him had been spread throughout the Agency and beyond, and the complaints were the gossip of the 2019004955 6 Agency. ROI, at 40-41. He stated that he even found a copy of one sexual harassment complaint made against him sitting on the printer. Id. Assuming Complainant’s allegations, as evidenced by SE’s June 23, 2017, email, are true, these are actions by S2 and S3 that can rise to the level of a hostile work environment based on, at least, Complainant's sex. The courts have been clear that summary judgment is not to be used as a “trial by affidavit.” Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that, when a party submits an affidavit and credibility is at issue, “there is a need for strident cross- examination and summary judgment on such evidence is improper.” Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). “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.” Complainant v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). 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, § 1; see 29 C.F.R. § 1614.109(e). In summary, there are simply too many unresolved issues which require further development of the record and an assessment as to the credibility of the various management officials, other witnesses, and Complainant himself. Therefore, judgment as a matter of law for the Agency should not have been granted. CONCLUSION We VACATE the Agency's final order and REMAND the complaint to the Agency for further processing, in accordance with this decision and the ORDER herein. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Atlanta District Office Hearings Unit within thirty (30) days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the 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 2019004955 7 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 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 2019004955 8 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. 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. 2019004955 9 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 June 29, 2021 Date