[Redacted], Jerry V., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020005135 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerry V.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005135 Hearing No. 420-2019-00313X Agency No. ARUSAR18JUL02755 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 September 25, 2020, 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.2 For the following reasons, the Commission VACATES the Agency’s final order and REMANDS the 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. 2 We note that the Agency’s final order was not issued within 40 days of the Administrative Judge’s (AJ’s) decision. In addition, Complainant’s March 17, 2020, appeal was premature; however, the Commission finds that the appeal is now ripe for adjudication as the AJ’s decision became the Agency’s final action on April 19, 2020. 2020005135 2 ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on race or sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Repairer at the Agency’s United States Army Reserve Command, 81st Readiness Division, Area Maintenance Support Activity 158 in Anniston, Alabama. In January 2018, Complainant obtained a new first-line supervisor (S1) (Caucasian, male). Report of Investigation (ROI) at 176. Complainant stated that while he was having a conversation with another employee, S1 approached them and asked Complainant, “What you can’t eat pussy anymore? But you can still suck dick?” Complainant stated that during a different conversation with coworkers, he disclosed that his fiancé was Black and Puerto Rican. Complainant stated that S1 overheard him and started to make race-based comments about songs about Black people. For example, Complainant stated that sometime in April 2018, S1 asked about a song with the lyrics, “I’m an Alabama [n-word].” Complainant stated that he responded that S1 thought he was funny, but that Complainant did not appreciate it. ROI at 176-77. Complainant stated that S1 informed him that the training classes that Complainant was scheduled to attend were canceled and that he did not need them. Complainant also stated that S1 constantly informed him that it would only take two or three counselings to fire Complainant because he was still on probation. ROI at 178-79. On May 3, 2018, S1 counseled Complainant for a failure to follow a Lube Order. ROI at 75-76. On May 9, 2018, S1 issued Complainant another counseling regarding his performance. S1 noted that Complainant arrived to work at 6:40 a.m. and was repeatedly found using his cell phone instead of working. ROI at 77-78. On June 1, 2018, S1 issued Complainant a Notice of Termination During Probationary Period for failure to demonstrate fitness for continued federal employment. Specifically, S1 stated that Complainant’s performance continuously remained outside established time standards. He also stated that Complainant demonstrated a less-than-required technical proficiency in the performance of his duties, such as failing to complete scheduled services on time, electrical troubleshooting errors, and failure to complete service sheets and/or timecards used to document maintenance jobs. ROI at 91-93. On August 28, 2018, Complainant filed a formal EEO complaint alleging that the Agency subjected him to harassment on the bases of race (Caucasian/Association with African American female) and sex (male) when: 2020005135 3 1. beginning in January 2018, S1 made inappropriate comments, cancelled classes Complainant wanted to attend, and reminded Complainant multiple times that S1 could remove Complainant from his position because he was a probationary employee; 2. on May 3, 2018, and May 9, 2018, S1 issued Complainant letters of counseling; and 3. on June 1, 2018, S1 issued Complainant a notice of termination during his probationary period. After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ stated that she considered the Agency’s motion, Complainant’s response, the Agency’s reply, and the entire investigative file and record, and she reviewed the evidence in the light most favorable to Complainant. The AJ concluded that there was sufficient information upon which to base a decision without a hearing and that there were no material facts in dispute. The Agency’s final action implemented the AJ’s decision. Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through his non-attorney representative, Complainant makes various arguments on appeal. For example, Complainant challenges S1’s credibility and provides the names of witnesses who provided contradictory testimony. Complainant also notes that one witness refused to testify, and this was “not enforced by the Agency.” Complainant argues that the AJ disregarded material facts and the law, and that Complainant’s association with African American people, specifically, his dating an African American woman, offended S1 and caused a hostile work environment. Agency’s Contentions The Agency argues that Complainant takes a “scattershot approach” on appeal, and that his arguments are difficult to discern. The Agency notes that it appears that Complainant’s appeal centers on (1) allegations of insufficient notice of granting a decision without a hearing, (2) allegations that Complainant was somehow denied discovery and/or a proper investigation, (3) allegations of some kind of conspiracy between the Agency Representative and the AJ, and (4) allegations that the AJ improperly made credibility determinations in granting summary 2020005135 4 judgment. The Agency asserts that Complainant’s contentions on appeal are meritless and his appeal should be denied. 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”). ANALYSIS AND FINDINGS 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., 2020005135 5 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. 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). 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). After a careful review of the record, we find that the AJ erred when she concluded that there were no genuine issues of material fact in this case and that the record was fully developed. In finding no discrimination, the AJ stated that she reviewed the evidence in the light most favorable to Complainant when she concluded that there were no material facts in dispute. However, we find that the record is missing testimony from a witness, and there is evidence that raises genuine disputes of material facts and shows a need to make credibility determinations. Regarding the inappropriate comments, S1 denied making the alleged statements and stated that he did not know why Complainant would say that S1 made those comments. ROI at 191. However, a witness (W1) confirmed that S1 made comments to Complainant about “eating pussy” and “sucking dick,” and that S1 stated that he would fire Complainant since he was on probation. W1 also stated that S1 made comments about Complainant liking and dating Black and Puerto Rican people, as if it “disgusted” S1. ROI at 215-16. Complainant stated that another witness (W2) was present when S1 made the comment about the Alabama n-word. However, W2 declined to provide a statement for the investigation, stating that it would be a “conflict of interest” because he still worked with S1 and that providing a statement “could cause a problem” for W2. ROI at 258. We note that testimony from W2 is important because he was a direct witness to an incident at issue in this complaint. Regarding Complainant’s removal, S1 stated that he made the decision because Complainant demonstrated a less-than-required technical proficiency in the performance of his duties, such as a failure to complete scheduled services on time, electrical troubleshooting errors, and a failure to complete service sheets and/or timecards used to document his maintenance jobs. ROI at 197. 2020005135 6 Complainant’s second-line supervisor (S2) (Caucasian, male) stated that Complainant’s performance was “substandard,” and he had difficulty completing “simple maintenance tasks.” ROI at 210. However, a witness (W3) stated that if Complainant “wasn’t any good,” S1 would not have asked Complainant to help W3. ROI at 218. W3 added that when he needed a knowledgeable person, S1 sent Complainant, who “did a great job!”3 ROI at 18. 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, §1; see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are simply too many unresolved issues which require additional testimony and an assessment as to the credibility of the management officials, witnesses, and Complainant. Therefore, judgment as a matter of law for the Agency should not have been granted as to Complainant’s allegations of discrimination and harassment based on race and sex. Accordingly, we VACATE the Agency’s final order and REMAND the complaint for a hearing. CONCLUSION Therefore, after a careful review of the record, including Complainant’s arguments on appeal, the Agency’s response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency’s final action and REMANDS the matter to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Birmingham District Office Hearings Unit within thirty (30) calendar days of the date this decision is issued. 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. 3 W3’s additional statements are taken from the EEO Counselor’s report, and they were provided during the informal counseling stage of the complaint. 2020005135 7 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. 2020005135 8 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. 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. 2020005135 9 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 September 2, 2021 Date