[Redacted], Geraldine G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020002112 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Geraldine G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002112 Hearing No. 460-2019-00049X Agency No. 2003-0580-2018102164 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 16, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the reasons that follow, we VACATE the Agency’s final order finding no discrimination and we REMAND the complaint for a hearing. BACKGROUND During the period at issue, Complainant was employed as a Food Service Worker at the Agency’s Michael E. DeBakey Medical Center located in Houston, Texas. Complainant filed a complaint alleging that she was subjected to sexual harassment, nonsexual harassment and discrimination based on her sex (female) and disability (Type 1 Narcolepsy with cataplexy, and Non-Epileptic disorder) when: 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. 2020002112 2 1. From June 2014 through November 2017, she was subjected to continuing sexual advances and an unwelcomed sexual relationship with S1, Block Supervisor in Nutrition and Food Service (S1 was Complainant’s supervisor). 2. From July 2017 thru November 2017, C1, a Nutrition and Food Service coworker, inappropriately touched, hugged, or attempted to hug her. 3. On September 29, 2017, S2, another supervisor, issued her a written counseling letter. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. With respect to claim 1, the AJ found that the evidence was unequivocal that Complainant and S1 began a consensual sexual relationship in late 2014. Complainant did not inform upper management about their relationship until November 17, 2017. Although Complainant alleged that she was subjected to sexual harassment by S1, the AJ found that she could not prevail on this claim because she could not show that the conduct was unwelcome. In this regard, the AJ noted the Agency’s December 2017 fact-finding investigation which found that on at least two occasions Complainant paid for hotel rooms for them, sent S1 text messages, and an emoji of a kiss. The AJ also found that Complainant never stated the relationship was not consensual, nor did she state that she felt her position was in peril if she did not succumb to S1’s advances, and she was never threatened with negative employment actions if she did not submit. The AJ also found that the Agency took prompt action on the allegations once they came to upper management’s attention. As soon as upper management became aware of the alleged harassment, S1 was detailed out of the Nutrition and Food Service and issued a stay away letter on November 17, 2017. S1 remained detailed out of the Nutrition and Food Service while the fact-finding investigation (this is separate from the EEO investigation stemming from this complaint) was ongoing and was eventually terminated. Thus, the AJ found that Complainant was not subjected to any unwelcome conduct at the hands of S1 after her allegations came to light. With respect to claim 2, Complainant alleged that she was subjected to sexual harassment from July 2017 through November 2017 by C1, a coworker. According to Complainant, C1 would inappropriately touch, hug or attempt to hug her. Complainant stated that although she and other coworkers repeatedly told C1 to stop, his behavior continued. The AJ noted that the Agency’s fact-finding investigation into this allegation failed to substantiate Complainant’s claim. The AJ also found that the Agency took prompt action on the allegation once it came to management’s attention in November 2017. The AJ noted Complainant’s statement that after she reported C1’s conduct there have been no further incidents. Finally, with respect to claim 3, the record indicates that Complainant was the checker for a line where a tray with an egg came through for a patient who had an egg allergy. S2 was the supervisor who issued her a written counseling. Complainant alleged that she had no memory of this event and could not remember what happened that day. The AJ found that the fact 2020002112 3 Complainant did not recall what happened that day does not absolve her of responsibility for allowing the allergen to pass through her line. The AJ also noted that C2, the other employee responsible for the allergen being present on the food tray, was also given a written counseling. ANALYSIS AND FINDINGS We must first 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). After reviewing the record, we find that the AJ improperly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, we find that the AJ’s issuance of a decision without a hearing was inappropriate. In reaching this determination, we note the AJ’s determination that Complainant could not prevail on claim 1 because she could not show that S1’s conduct was unwelcome. The AJ noted the Agency’s December 2017 fact-finding investigation which found that Complainant never stated the relationship was not consensual, she did not state that she felt her position was in peril if she did not succumb to S1’s advances, and she was never threatened with negative employment actions if she did not submit. The Agency fact-finding investigation, however, found that although Complainant’s and S1’s relationship, which started in 2014, was initially consensual, it developed into “quid pro quo” sexual harassment, and that S1 made “retaliatory downgrades” to Complainant’s performance appraisal when she distanced herself from their consensual sexual relationship. The record does not indicate which performance evaluation was lowered, however. 2020002112 4 We also note Complainant’s unrebutted assertion that when she began to distance herself from S1 in 2017, S1 did not process her annual leave requests for 2017. According to the record, in January 2017, employees were asked to submit to their supervisors their requests for annual leave for periods of 40 hours for the calendar year. In March 2017, Complainant requested leave for May 28 - June 3, 2017; June 4 - June 10, 2017; August 6 - August 12, 2017; and December 24 - December 30, 2017. S1 initialed the form, which was an indication of approval. Subsequently, Complainant discovered that S1 did not input her requests into the Agency’s Time and Attendance system, which was customarily done in the past. Complainant stated she had to switch some of her requested leave because of S1’s inaction. Complainant stated that when she confronted S1, he stated that it was her fault because she did not remind him to make sure that the request was properly placed into the system. We find that the Agency’s determination that S1 lowered a performance appraisal in retaliation for Complainant distancing herself from their sexual relationship, and Complainant’s unrebutted assertion that her leave requests were not properly processed when she began to distance herself in 2017, both indicate the existence of genuine issues of material fact that rebut the AJ’s determination that Complainant was unable to establish that she was subjected to unwelcome conduct. 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), 7-1 (Aug. 5, 2015); see 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). In summary, there are simply too many unresolved issues which require an assessment as to the credibility of S1 and Complainant. Therefore, judgment as a matter of law for the Agency should not have been granted as to claim 1. Because of our decision above to remand claim 1 for a hearing, we, in order to prevent fragmentation, will also vacate the Agency’s final order concerning claims 2 and 3, and will remand the entire complaint for a hearing. CONCLUSION The Commission VACATES the Agency’s final order and REMANDS the complaint to the Agency for further action 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 Houston District Office Hearings Unit within 15 calendar 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 2020002112 5 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 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 2020002112 6 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. 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 2020002112 7 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 16, 2021 Date