0120111863
09-22-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111863
Hearing No. 420-2009-00241X
Agency No. 200L-0520-2009101509
DECISION
JURISDICTION
Complainant appeals the Agency's January 10, 2011 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. The Commission accepts this appeal, according to 29 C.F.R. � 1614.405(a). We REVERSE the Agency's final order, and REMAND the matter, for the reasons below.
ISSUE PRESENTED
Whether the EEOC Administrative Judge erred in issuing summary judgment in favor of the Agency.
BACKGROUND
Before the arrival of Complainant, the alleged harasser was working as a chief Occupational Therapist at the Agency's Gulf Coast Healthcare System in Biloxi, Mississippi. In August 2008, she was admonished and removed from serving as a board member for occupational therapy by the Chief of Physical Medicine and Rehabilitation Service (the "Chief"). The Chief removed her because he believed she had conveyed confidential information about boarded candidates to others. A month later, on September 4, 2008, the Chief changed her work assignment, pending the outcome of a fact-finding investigation.1 During the investigation, she was not to perform any patient care or supervisory duties. It was in this environment that Complainant began working as an Occupational Therapist at the facility in October 2008.
A. Discussing Complainant's Salary with Others
According to Complainant, the (former) chief Occupational Therapist began discussing her salary with other employees on at least two occasions, complaining that Complainant's salary was unfairly higher than those of the other occupational therapists.
B. Physical Confrontation
On November 4, 2008, the chief Occupational Therapist allegedly confronted Complainant, opining it was not appropriate for Complainant to treat a patient at the same time that the clinic was evaluating the fitness of an Agency police officer. After Complainant removed the patient from the room, the chief Occupational Therapist allegedly went to Complainant's cubicle. According to Complainant, she was sitting in her chair when the chief Occupational Therapist began yelling at her, took Complainant by the shoulders, and pushed her back into the chair. That night, Complainant discussed the incident with her husband, who encouraged her to report it to her supervisors the next day. Complainant did so on November 5, and they in turn, instructed her to report it to the Agency's police department.
1. Police Investigation
The following day, November 6, 2008, Complainant went to the Agency's police department. She was interviewed by a criminal investigator, who had previously talked with the chief Occupational Therapist about her conflicts with the Chief of Physical Medicine and Rehabilitation Service.2 The criminal investigator was suspicious about Complainant's allegations, questioning why it had taken her three days to report the incident to the police. "It just gives that appearance as to-raises some suspicion. And I told her that. I said, it raises some suspicion with me. Because around here, in this facility, if someone is assaulted, nine times out of ten . . . they're going to report it right then and there, not wait three days." Report of Investigation (ROI), Affidavit (Aff.) B-5, at 9-10.
The criminal investigator declined to bring charges of simple assault against the chief Occupational Therapist. Complainant complained to her supervisors that the criminal investigator had been biased in his investigation.
In response, Complainant's supervisors asked the Chief of Police Service to review the criminal investigator's conclusions. But the Chief of Police Service had a possible conflict of his own, because he had previously dated the chief Occupational Therapist for a "month or two" in February 2008. ROI, Aff. B-6, at 4-5. Ultimately, the Chief of Police Service concurred with the criminal investigator's conclusion that there was insufficient evidence to bring a charge of simple assault, and returned the case to Complainant's supervisors.
Complainant's supervisors did not pursue disciplinary actions for this incident, allegedly because they did not want to interrupt and delay other pending administrative disciplinary actions against the chief Occupational Therapist.
C. Criticism about Patient Confidentiality
In December 2008, the chief Occupational Therapist allegedly interrupted Complainant's evaluation of a patient and berated Complainant for not observing patient confidentiality.
For all three incidences, Complainant wrote reports of contact and complained to her supervisors.
D. EEO Complaint
On March 30, 2009, Complainant filed a formal EEO complaint, alleging that she had been subjected to hostile work environment harassment on the bases of race (Native Hawaiian or Other Pacific Islander), national origin (Philipino), and sex (female) when:
1. on November 4 and 6, 2008, she was informed that the chief Occupational Therapist had been discussing her grade and salary with another employee;
2. On November 4, 2008, the chief Occupational Therapist invaded her personal space and pushed her shoulders back into her chair;
3. On December 12, 2008, the chief Occupational Therapist discussed employment matters and corrected Complainant with regard to patient confidentiality in front of a patient.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing, finding no discrimination.
For the first incident, in which the chief Occupational Therapist discussed Complainant's salary with others, the AJ determined that Complainant did not suffer a present harm or loss with respect to a term, condition, or privilege of employment, and therefore was not an aggrieved employee.
For the second incident, the AJ found that this physical confrontation was an isolated incident that did not rise to the level of harassment. And even if it did, the Agency took immediate and corrective action by asking Complainant to fill out a report of contact and referred the matter to the Agency police for investigation.
As for the third incident, the AJ found that the chief Occupational Therapist's behavior and remarks were nothing more than common workplace occurrences. Therefore, the AJ concluded that the allegations of harassment were insufficiently severe or pervasive to constitute hostile work environment harassment.
The Agency's final action implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the AJ erred in issuing summary judgment in favor of the Agency, because:
* genuine issues of material fact exist about the unwelcome conduct, where the alleged harasser denied all of Complainant's claims;
* the unwelcome conduct was sufficiently severe and pervasive to constitute hostile work environment harassment, in that the alleged harasser's verbal conduct undermined Complainant's credibility with her patients and her professional reputation, and the alleged harasser physically assaulted Complainant;
* Complainant's supervisors took no corrective action, in the form of actual disciplinary measures, to remedy Complainant's complaints of harassment. In addition, the Agency's police department also failed to take corrective action to remedy the situation.
* The biased way that the Agency's police department conducted its investigation, such as being suspicious of Complainant and questioning her motives for attempting to bring a charge against the chief Occupational Therapist, constituted unwelcome conduct and contributed to a hostile work environment.
The Agency did not submit an opposition brief.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999). (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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 Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. 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 (February 24, 1995).
Genuine Issues of Material Fact in Dispute
After a careful review of the record, we determine that the AJ erred in concluding that there was no genuine issue of material fact in this case. In her affidavit, the chief Occupational Therapist directly contradicted Complainant's testimony, denying that any of the alleged incidents occurred.
* For the first incident, the chief Occupational Therapist averred that she never discussed Complainant's salary in front of any employees saying that Complainant's starting salary was unfair to other therapists. ROI, Aff. B-8, at 6.
* For the second incident, she denied going to Complainant's cubicle and even touching Complainant, much less pushing her. Rather, she averred that she was in her office during that time. Id. at 8-9.
* As for the third incident, she denied criticizing Complainant for not observing confidentiality.3 Id. at 11.
We also note that the record contains an affidavit from a Supply Medical Technician, who averred that the chief Occupational Therapist had made derogatory remarks about Filipinos.
[The chief Occupational Therapist] mentioned to me that she said Filipinos were perverts, that when she was in Hawaii, a lot of the men were the ones that molested their family members. I got upset . . . . I said, you know, my grandfather is Filipino Spanish and my father is Filipino Spanish. I've never had that problem. So I don't know how you could say that they all do that. But I guess she was saying well, it would have probably been the cases that she took care of. But it upset me. I didn't like it. . . . But after that, she was careful, very cautious about making any kind of racist remarks as far as Filipinos go." ROI, Aff. B-10, at 7.
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 (November 9, 1999); 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 (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). In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and Complainant, herself. Therefore, judgment as a matter of law for the Agency should not have been granted.
Hostile Work Environment Standard
Additionally, we reiterate the correct standard to determine whether a hostile work environment claim is actionable. It is an unlawful employment practice for an employer to discriminate against any individual because of a protected basis, with respect to compensation, terms, conditions, or privileges of employment. But this language is not limited to economic or tangible discrimination.
The phrase "terms, conditions, or privileges of employment" evinces a congressional intent to strike at the entire spectrum of disparate treatment in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment. See Harris v. Forklift Sys., In., 510 U.S. 17, 21 (Nov. 9, 1993). Therefore, even if harassing conduct produces no "tangible effects," a complainant may assert a cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of a protected basis. See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC No. 915.002 (March 8, 1994). The Harris decision reinforces the Commission's position that conduct that constitutes harassment on any of the protected bases covered by the antidiscrimination statutes is equally unlawful as a discriminatory term, condition, or privilege of employment. See id.
Assuming it is determined that the alleged conduct by the chief Occupational Therapist actually took place, we also find that the three incidents, a physical assault, coupled with multiple disclosures and misuses of Complainant's private information and the questioning of her therapeutic practice, which undermined Complainant's professional authority, standing, and competence with her colleagues and patients, and the evidence concerning the chief Occupational Therapist's attitude towards Filipinos could be severe enough to collectively constitute hostile work environment harassment.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, and arguments and evidence not specifically discussed in this decision, the Commission reverses the Agency's final action and remands the matter to the Agency 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 Hearings Unit of the Miami District office 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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/22/14______________
Date
1 We note that the Agency's Administrative Investigation Board conducted an investigation into allegations of unprofessional and unethical conduct, and violations of the Privacy Act. On July 14, 2009, the Administrative Investigation Board found that the chief Occupational Therapist, in her supervisory role, "created a hostile work environment which negatively impacted the employees she supervised. . . . [The chief Occupational Therapist] shared both personnel and personal information about the employees she supervised with other employees and patients. . . . Her intimidating manner, misuse of power, and disclosure/misuse of information sustained the hostile work environment."
2 For example, the criminal investigator admitted in his affidavit that the chief Occupational Therapist "asked me questions concerning what she should do to defend herself between her and [the Chief of Physical Medicine and Rehabilitation Service]. . . . [The chief Occupational Therapist] was in fear of retaliation by [the Chief of Physical Medicine and Rehabilitation Service] for records and such. . . . And I told her if she was going to pursue that allegation, she needed to have proof." Report of Investigation (ROI), Affidavit (Aff.) B-5, at 10-11.
3 We note that the chief Occupational Therapist filed her own EEO complaint against the Agency, maintaining that the Chief of Physical Medicine and Rehabilitation Service subjected her to hostile work environment harassment. In EEOC Appeal No. 0120111818 (Apr. 1, 2014), the Commission found that the chief Occupational Therapist did not demonstrate that she had been subjected to hostile work environment harassment.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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