Kandi M.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.

Equal Employment Opportunity Commission

Jun 13, 2019

0120182468 (E.E.O.C. Jun. 13, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kandi M.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.

Appeal No. 0120182468
Hearing No. 570-2017-00278X
Agency No. USA201600418

DECISION

On July 19, 2018, 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
June 19, 2018, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
ISSUE PRESENTED

Whether the Equal Employment Opportunity Commission Administrative Judge’s sua sponte
decision to grant summary judgment in favor of the Agency was appropriate.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Paralegal Specialist
in the Agency’s Violent Crimes and Narcotics Trafficking Section located in Washington, DC.
On May 24, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to
a hostile work environment on the bases of race (African-American), sex (female), and in reprisal
for engaging in protected EEO activity 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.
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a. In 2012, a co-worker allegedly threatened her with a knife;
b. On or around May 17, 2013, a co-worker began playing loud music to
disrupt her work;
c. In September and October 2015, co-workers interfered with her work
assignments;
d. In March 2016, a coworker provided the wrong location to movers who
were moving her office furniture;
e. In December 2015, January 2016 and February 2016, co-workers subjected
her to threats and disturbances in or near her office, including intimidating
and menacing stares and gestures, loud, disruptive, persistent and
threatening banging, dragging and clawing on her office walls, sometimes
paired with laughter; and
f. In the summer of 2013 and again sometime between September 2015 and
February 2016, co—workers isolated her and subjected her to offensive
comments, jokes and ridicule.

At the conclusion of the investigation, 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 Administrative Judge (AJ). Complainant timely requested a hearing.
Following his review of the record, the AJ issued a March 15, 2018, Notice of Proposed Summary
Judgment (Notice) indicating his consideration of summary judgment in favor of the Agency. The
AJ preliminarily assessed that a decision without a hearing was appropriate because “taking the
facts as presented in the Report of Investigation (ROI) and viewing the evidence in the light most
favorable to Complainant” it appeared Complainant had failed to present evidence demonstrating
that she was subjected to conduct which rose to the level of unlawful harassment. Subsequently,
The AJ determined sua sponte that the complaint did not warrant a hearing and over Complainant’s
objections, issued a decision without a hearing on May 9, 2018, finding no discrimination.
According to the AJ, for purposes of his decision, he adopted Complainant’s version of the events
and all justifiable inferences were construed in her favor.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues, among other things, that, the AJ did not afford her due process
because she was not allowed to engage in discovery; there are still genuine issues of disputed
material facts; and that the AJ refused to consider her retaliation claims on the merits.

The Agency, in pertinent part, argues that the AJ’s decision is supported by the factual record and
that its final order should be affirmed.

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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 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

AJ’s Issuance of a Decision Without a Hearing

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., 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
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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 administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

Upon review of the record, we find that there is no genuine issue of material fact presented here.
The record has been adequately developed, Complainant was given ample notice of the AJ’s
consideration of summary judgment in favor of the Agency without a hearing, she was given a
comprehensive statement of the allegedly undisputed material facts, she was given the opportunity
to respond to such a statement, and she was given the chance to engage in discovery before
responding, if necessary. We find that, even assuming all facts in favor of Complainant, a
reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the
AJ’s issuance of a decision without a hearing was appropriate.

Discriminatory harassment

To establish that she was subjected to a hostile work environment, Complainant must show that:
(1) she belongs to a statutorily protected class; (2) she 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 her 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 Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to
alter the conditions of [complainant’s] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

We find that Complainant failed to establish elements 2, 3, and 4 of the harassment analyses set
forth above. Complainant alleged that she was subjected to co-worker harassment by several black
co-workers including C1, C2, and C3 based on her race, sex, and prior EEO activity because of
her association with C4, a white co-worker. The AJ found that Complainant, specifically regarding
incidents b – f, did not establish that the alleged conduct, examined either in isolation or in concert,
was either severe or pervasive enough to constitute a violation of Title VII. We agree.

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Likewise, the AJ found that with respect to incident a, even construing Complainant’s factual
allegations in a light most favorable to her, this one-time incident, that allegedly occurred at least
one year preceding the other harassing conduct, was neither severe nor pervasive, and did not
constitute the type of objectively offensive conduct that creates an unreasonable interference in the
workplace. The AJ noted Complainant’s statement that:

sometime in 2012, she was in the kitchen on the 4th floor when [C1] entered the
kitchen with a butcher knife in her hand. When [A1, a management official]
questioned Complainant whether [C1] said anything to her while holding the
butcher knife, Complainant responded that “she could not remember what, if
anything [C1] said.” Later, when [A1] questioned Complainant about what [C1]
did to her to make Complainant think that [C1’s] butcher knife had anything to do
with Complainant because she might be cutting vegetables or a cake for a patty held
in the kitchen, Complainant responded that [C1] was standing in the entrance and
she was facing her and she remembered “feeling like she was not able to leave.”
Finally, when [A1] questioned Complainant whether [C1l was blocking the
entrance way to the kitchen, Complainant simply responded, “she was in the
entrance way.”

Based on the weight of the evidence before us, we conclude that the AJ did not err in finding that
Complainant did not establish her claim of discriminatory harassment or a hostile work
environment on the bases of race, sex or reprisal for prior protected EEO activity. We find no
evidence that the matters at issue here were related to Complainant’s race, sex or previous EEO
activity. Likewise, we note that Title VII is not a civility code. Rather, it forbids “only behavior
so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

We note that contrary to Complainant’s assertion on appeal, through her attorney, that she was
denied the opportunity to engage in discovery, the AJ noted that:

I afforded Complainant an opportunity to identify the specific discovery she sought
and to provide a description of how the information would likely lead to evidence
relevant to her harassment claim, See Notice of Proposed Summary Judgment,
dated March 15, 2018. Complainant filed a statement requesting discovery on April
3, 2018. After careful review of Complainant’s statement, I have determined that
the discovery sought will not affect the outcome of the case because, as disclosed
in greater detail below, Complainant has not alleged facts which demonstrate that
she was subjected to the type of severe and/or pervasive conduct required to trigger
a violation of Title VII.

On appeal, Complainant indicated that in her discovery request, she sought “[t]he communications
among Agency managers that would have documented their consideration of her reports and
informed the record about the promptness or effectiveness of their responses.” According to
Complainant, the electronic communications are well known to reveal a decision-maker’s motives
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and biases. Given the fact that the information sought by Complainant goes to element 5 of the
harassment claim, and that AJ’s determination that she failed to establish her claim was based on
elements 2 – 4, we agree with the AJ’s conclusion that the information she sought would not have
affected the outcome of the case.

Complainant also contended that summary judgment was improper, partly because she believes
there are material facts in dispute. However, she merely reiterated her allegations and the
information in her rebuttal statement. Complainant provided no new material facts that she did
not previously dispute or that were unavailable to the AJ for his review and consideration.
Complainant’s subjective beliefs that her coworkers subjected her to harassment do not justify a
reversal of the AJ’s summary judgment determination in favor of the Agency.2

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order finding that Complainant did
not establish discriminatory and retaliatory harassment or hostile work environment as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131

2 We note that, in addressing the AJ’s issuance of a decision without a hearing, a complainant’s
opposition must consist of more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth specific facts showing that there
is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.

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M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider
and also file a civil action, 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

June 13, 2019
Date