0120093675
07-16-2012
Mario Palomo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Mario Palomo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120093675
Hearing No. 550-2008-000107X
Agency No. 4F-940-0127-07
DECISION
Complainant timely filed an appeal from the Agency's July 31, 2009, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether an EEOC Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant was not subjected to unlawful discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Embarcadero Postal Center in San Francisco, California. The record reveals that Complainant has been employed by the Agency since 1985. Complainant is medically restricted from lifting more than ten pounds; standing more than four hours per day; walking more than one hour at a time or a total of four hours per day; climbing, kneeling, driving, or fine manipulation; and bending, stooping, twisting, and reaching above the shoulder for more than two hours per day. Investigative File, Exhibit 4. Because of Complainant's medical restrictions, the Agency reassigned him to a limited-duty "paper doll" position, which involved cutting out address corrections for magazines and distributing mark-ups and carrier-endorsed mail.
Complainant has filed 10 prior EEO complaints; the last case closed in February 2005. Complainant was supervised by a Chinese-American male born in July 1941 (S1) until October 2006. In October 2006, Complainant was transferred to the Embarcadero Postal Center because of interpersonal conflicts between S1 and Complainant. In October 2006, a Chinese/Myanmar-American female born in September 1959 (S2) became Complainant's supervisor. An Indian-American male born in 1962 (Manager) was the acting Manager of Customer Service at the Embarcadero Postal Center, and a Chinese-American male born in 1949 was the Supervisor of Customer Service (S3) at the facility. Beginning in February 2007, Complainant represented a co-worker in an EEO dispute that named S2 as the responsible management official.
On August 13, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), national origin (Guatemala), sex (male), disability, age (59 years old), and in reprisal for prior protected EEO activity when:
1. On April 18, 2007, Complainant's supervisor (S2) yelled at him and accused him of taking home his timecard;
2. On April 18, 2007, Complainant was required to fill out a form before he was allowed to take time off for a doctor's appointment;
3. On April 18, 2007, the Customer Services Supervisor pointed his finger in Complainant's face and accused him of taking his time card home;
4. In April 2007, the Customer Services Supervisor took a picture of Complainant's legs and feet;
5. On April 21, 2007, S2 did not give him a CA-1 Form when he requested it;
6. On April 23, 2007, S2 threatened to call the police when Complainant showed up to work on his day off, informed her that he would like to speak with her, and asked S2 to sign a form;
7. On May 24, 2007, S2 told him that disabled employees were not needed on Saturdays;
8. On May 31, 2007, S2 did not give him a copy of his clock rings when he requested him;
9. In June 2007, S2 told him that S1 would make the pay adjustment on his time card;
10. On June 5, 2007, S2 told Complainant to take his coat off of a co-worker's chair in a hostile manner;
11. On June 6, 2007, S2 told Complainant to sit down in a disrespectful manner, and when Complainant refused, S2 told him that other employees had been removed for disobeying a direct order;
12. On June 7, 2007, S2 had a meeting with him in which he was denied a witness or representative. Complainant left S2's office and returned with a witness. During the meeting, S2 grabbed his arm and tried to take a form away from him;
13. On June 8, 2007, S2 threw and smashed magazines into a plastic bin in front of him;
14. On June 12, 2007, Complainant's request for a CA-1 form was not processed in a timely manner;
15. Complainant was denied overtime and holiday pay on specified dates since October 2006 and had his medical restrictions violated;
16. On September 24, 2007, Complainant was falsely accused of altering his workers' compensation documents;
17. On September 24, 2007, the Health and Resource Management Specialist did not return Complainant's telephone calls;
18. On September 24, 2007, the Health and Resource Management Specialist called him an "unreasonable person"; and
19. On September 24, 2007, the Health and Resource Management Specialist refused to process his workers' compensation claim.
In an investigative statement, Complainant stated that he discovered that this timecard was missing on April 14, 2007, and reported the matter to the Customer Services Supervisor. Complainant further stated that he reported the matter to S2 on April 17, 2007. Complainant stated that S2 demanded to know why he had taken his timecard home in a hostile manner in front of other employees, which humiliated him and made him feel threatened.
Complainant also stated that on April 18, 2007, he needed to take four hours Leave without Pay (LWOP) because of a doctor's appointment. He stated that he submitted a leave request form to S2, but S2 asked him to complete a PS Form 1260, in lieu of his missing time card. Complainant further stated that he left to obtain the PS Form 1260, but the Customer Services Supervisor accused him of taking his timecard home while pointing his finger in Complainant's face. Complainant stated that he asked the Customer Services Supervisor not to make accusations or point his finger in his face, but the Customer Services Supervisor followed him to the break room where they found S2. Complainant stated that the Customer Services Supervisor then took a picture of him, and S2 signed the PS Form 1260. Complainant stated that he was off the clock at this time and went to his doctor's appointment.
Complainant further stated that on April 21, 2007, S1 and S2 refused to provide him with an OWCP Form CA-1 (Notice of Traumatic Injury and Claim for Continuation of Pay). Complainant stated that one of the supervisors threatened to have him removed by Agency police. Complainant stated that his physician provided him with a CA-1 Form, and he submitted the CA-1 Form to the Customer Services Supervisor on April 23, 2007. Complainant stated that he did not know when the form was processed, but he did not receive Continuation of Pay in a timely manner.
Complainant stated that on June 1, 2007, S2 told him that his pay location was under S1's supervision, and therefore, S1 would have to complete his pay adjustment. Complainant stated that S2 required him to complete 15 PS-1269 Forms in order to replace his timecard.
Complainant stated that on June 5, 2007, S2 approached him and demanded that he remove his jacket from a co-worker's chair in a loud and hostile voice. Complainant stated that he removed his jacket from the chair and put it on, but S2 became very upset and walked away. Complainant further stated that, on June 6, 2007, on June 6, 2007, S2 called him into her office. He stated that when he requested representation, S2 ordered him to sit down and instructed him in the "same way a person would instruct a dog to sit." Complainant stated that he was so terrified and anxious because she would not allow him representation that he did not follow her order to sit down. Complainant stated that S2 told him she had fired employees for failure to follow a direct order. He stated that he became so emotionally upset that he called his physician and left work for the remainder of the day.
Complainant stated that on June 7, 2007, he was called into a meeting with the Customer Services Supervisor concerning a "Formal Discussion and Examination concerning Grievance, Personnel Policy or Practice, Protected Activity (EEO Complaint), and other conditions of employment." Complainant stated that he requested representation, and when S2 denied him representation, he left her office. Complainant stated that he requested representation because he said he "reasonably believed" the meeting would result in disciplinary action against him. He stated that he returned to S2's office after a couple of hours and asked her to approve a request for official time to work on EEO matters because he had a witness present with him. Complainant stated that S2 "jumped out from her desk and tried to take away" a Notification of Absence form from Complainant by grabbing his arm and taking the form.
Complainant also stated that S2 threatened him with removal by stating that she had personally fired "plenty of Latino employees just like [Complainant], and they never came back to work." Complainant stated that S2's comment insinuated that he was next.
Complainant stated that he has been denied overtime since October 2007 by the Customer Services Supervisor because he is a limited-duty employee. He stated that he is on the overtime-desired list and the holiday-volunteer list. With regard to his allegation that his medical restrictions have been violated, Complainant identified the dates of discrimination as "ongoing" and stated that his doctor's orders were violated when management subjected him to a hostile work environment. Affidavit A, p. 83.1
S2 stated that she asked Complainant to complete a Form-1260 because his timecard was missing, and he needed his clock rings to be entered. S2 also stated that Complainant had a doctor's appointment on April 18, 2007, and requested four hours LWOP. S2 stated that she again requested that Complainant submit a Form-1260 because his timecard remained missing. She stated that a replacement timecard was ordered from the Oakland District because the San Francisco District badge machine was out of order, which delayed the arrival of the card. S2 also stated that she did not argue with Complainant about the missing card and only had a simple conversation about the matter. S2 stated that on April 18, 2007, she told Complainant to submit a PS-260 Form to docket his time and clock rings for a replacement for the missing timecard.
S2 further stated that the replacement timecard contained incorrect employee data and an incorrect pay location. S2 stated that Complainant officially worked at a different pay location; therefore, his clock rings did not show on her time clock printouts, and she did not check his clock rings daily. S2 stated that Complainant's clock rings in May 2007 did not register in the payroll system because of the incorrect pay location on the timecard. She stated that when this error was discovered, Complainant agreed to manually record and certify his clock rings on PS-1260 Forms so S2 could input his clock rings into the Time and Attendance System (TAS). Complainant stated that she and Complainant checked the TACS reports and his calendar together on May 5, 2007, to ensure that Complainant was properly paid. S2 stated that the problem was discovered after the time allowed for inputting clock rings for the period in question; therefore, a payroll adjustment had to be completed for those dates. S2 stated that S1 completed the payroll adjustment on June 1, 2007, and Complainant received a pay adjustment in the following pay period. She further stated that she provided Complainant with copies of the hours analysis reports from April 28 to May 18, 2007.
S2 stated that she did not refuse to provide Complainant with a CA-1 form. S2 stated that Complainant came to work on his non-scheduled day so that S2 could complete a CA-1 form. S2 stated that she told Complainant to wait, but he said it was urgent. She stated that she told Complainant to leave the paperwork on her desk and to leave the building.
S2 also stated that on June 5, 2007, Complainant hung a jacket on a high-backed chair that prevented S2 from seeing Complainant's work area, and she instructed Complainant to move the jacket, which he did. S2 stated that all employees are provided lockers for personal belongings, and she did not yell at Complainant. S2 stated that on June 6, 2007, Complainant was missing from his desk between 7:30 and 8:15 a.m., and she paged him to report to the office at 8:20 a.m. She stated that when Complainant reported to the office, she told him to sit down, but Complainant refused to sit and said S2 was "not his mother." S2 stated that Complainant did not request representation. S2 stated that Complainant immediately told her he was sick, was going home, and left the office.
S2 further stated that she did not tell Complainant that she has terminated plenty of Latinos, although she has terminated "a few employees," who were not all Latinos. S2 stated that she followed Complainant to his desk and told him to a sign a PS 3971 Form Request for or Notification of Absence and notified him that he would need medical documentation for his leave. S2 stated that Complainant refused to sign the leave slip, accused her of making him sick, and accused her of causing a red mark on his arm. S2 stated that Complainant did not request representation at that time, but she attempted to contact a union steward, who was not available.
S2 stated that on June 7, 2007, she told Complainant to meet her in the office with his witness. She stated that when she met Complainant with other management officials, she told Complainant that his breaks were at 8:00 a.m. and 12:00 noon, and lunch was at 10:00 a.m. S2 also stated that she told Complainant that she would give him tubs of mail daily and instructed him on how to process the mail she gave him so that she could determine his daily productivity. S2 stated that Complainant told her he had to take breaks at certain times because of his medication and needed to see a physician that day. S2 stated that she asked Complainant for medical documentation regarding his need to take medication at certain times, but Complainant responded that management only harasses, intimidates, and humiliates him. She stated that when Complainant presented a form to her, she thought it was a leave request, and she signed it without reading the form. However, S2 stated that the form actually was a request for "other paid leave" in order to file an EEO complaint. S2 stated that she told Complainant she could not authorize leave to file an EEO complaint and explained the process for requesting official time. S2 also stated that she informed Complainant's representative that Complainant was not entitled to official time until the EEO office gave him paperwork on the matter. S2 stated that she did not yell at Complainant, point her finger near his face, jump from her seat to get the form from him, or grab his arm. S2 stated that Complainant was not disciplined because of his actions at the meeting.
S2 further stated that Complainant insisted that she complete the paperwork "right away," and she told him that if he did not leave the office, she would have to call the security guard. S2 stated that she did not yell at Complainant but told him that she would call the Agency police because it was his non-scheduled day off, and he interrupted a staff meeting with this matter. S2 also stated that she spoke to Complainant in a normal tone, did not touch him, and did not refuse to sign the CA-1 Form.
S2 also stated that on June 8, 2007, she placed empty tubs next to Complainant's desk and dropped handfuls of magazines and flat-sized mail into the tubs. She stated that Complainant accused her of slamming mail in his face, but she told him that this was not possible because his face and tubs were separated by several feet. S2 stated that Complainant was assigned work duties that did not require additional work hours. She stated that limited-duty employees were not the only employees who were instructed to not work on holidays because of limited available work, and Complainant had not volunteered to work overtime during the Memorial Day holiday. She stated that because Monday was Complainant's regular day off, his Memorial Day holiday occurred the preceding Saturday, and there was not work available within Complainant's medical restrictions. S2 stated that there was minimal Saturday mail delivery, and Complainant had been instructed to take holidays off. S2 stated that the Embarcadero Postal Center is located in downtown San Francisco, most businesses close during the weekend, and there is minimal Saturday delivery. She stated that Complainant's work duties only included working with "paper dolls."
Regarding Complainant's allegation that his CA-1 form was not processed in a timely manner on June 12, 2007, S2 stated that Complainant telephoned the office on June 12, 2007, spoke with S1, and requested sick leave for June 13, 2007. She stated that S1 told Complainant to call in the morning because S1 and Complainant were not to have any contact in accordance with a previous agreement. S2 stated that the Customer Services Supervisor received a CA-1 Notice of Traumatic Injury form on June 13, 2007, and gave it to S2 on June 14, 2007. She stated that she completed the supervisor's section of the form on June 14, 2007. S2 stated that the processing of Complainant's CA-1 form did not result in any loss of pay, and most of his claims were denied.
The Customer Services Supervisor stated that Complainant was the second employee to report a lost time card, and he told Complainant he would replace the time card. He stated that he did not talk to Complainant about his timecard. The Customer Services Supervisor stated that on April 18, 2007, Complainant entered his office asking him to sign a leave request, but he referred Complainant to S2. He stated that Complainant "demanded" that he sign the form and said that he had a doctor's appointment and had already clocked out. The Customer Services Supervisor stated that he told Complainant to leave the building if he had already clocked out, but Complainant refused to leave the building and yelled that he would not leave until the form was signed. He stated that Complainant began to leave but then returned, and the Customer Services Supervisor became concerned about his safety because of Complainant's anger. The Customer Services Supervisor stated that he began to use his cellular telephone to take Complainant's picture, but Complainant began to leave. He stated that the Maintenance Manager asked him to call security, and he pointed to the exit door and told Complainant in a loud voice to leave or he would call security.
The Customer Services Supervisor further stated that on June 8, 2007, he observed Complainant yelling at S2 that she was making him sick, but S2 did not smash magazines into a tub. He stated that S2 tried to calm Complainant, but he continued to raise his voice at S2. The Customer Services Supervisor also stated that he did not delay any CA-1 forms he received from Complainant. He stated that if he received a CA-1 form from Complainant, he made two copies and gave one copy to Complainant so that he could mail it to Injury Compensation. The Customer Services Manager also stated that every time that Complainant asked him to sign a CA-1 or CA-7 form, he told him to give the form to his supervisor.
The Injury Compensation Specialist/Health and Resource Management Specialist (IC Specialist) denied accusing Complainant of falsifying documents. She stated that Complainant submitted a CA-7 Claim for Compensation form and a CA-20 physician's report, which did not contain his physician's signature and the date. The IC Specialist also stated the top portion of the CA-20 had been "white-out[ed] or indicat[ed] date of injury as 10-3-06 and OWCP number 132064800," which was very confusing because the CA-20 appeared to have been altered. The IC Specialist further stated that she discussed the matter with Complainant and his physician on September 18, 2007, and the physician acknowledged that he had not signed the CA-20 form in question. She also stated that the physician explained that he had written over the original claim number because the Department of Labor had accepted a notice of recurrence under a new claim number. The IC Specialist stated that her office did not refuse Complainant's telephone calls, she monitors her calls eight hours each day unless she is away from her desk, and she returned calls as soon as they received or on the following day. She further stated that she did not recall telling Complainant that he is unreasonable. Additionally, the IC Specialist sated that Complainant's workers' compensation claim dated June 13, 2007, was received by her on June 14, 2007, and processed and forwarded to the Office of Workers' Compensation that same day.
The AJ's Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over the complainant's objections, the AJ assigned to the case granted the Agency's October 6, 2008, motion for a decision without a hearing and issued a decision without a hearing on July 27, 2009. In that decision, the AJ found that claims 1 through 6 were initiated by untimely EEO counselor contact. The AJ further concluded that the incidents alleged by Complainant were not severe or pervasive enough to constitute a hostile work environment. The AJ also concluded that Complainant failed to provide any evidence sufficient to suggest that the alleged conduct was motivated by his race, national origin, age, sex, disability, or EEO activity. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing in favor of the Agency. Complainant maintains that the Agency's actions were motivated by discriminatory motives, as reflected in the comments of S2, who told Complainant that she had terminated Hispanics and "disabled employees are not needed [to work] on Saturdays." Complainant further argues that the AJ failed to analyze his claims in totality as ongoing harassment that subjected him to close scrutiny, harassing remarks, and privacy violations. Complainant also contends that management officials made false statements during the EEO investigation. The Agency requests that we affirm its final order.
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. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). We find that the AJ improperly issued a decision without a hearing because there are genuine issues of material fact and credibility at issue in this case.
Hostile Work Environment
Complainant's complaint consists of numerous incidents that comprise an ongoing harassment claim. To establish a claim of harassment, a 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 his 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).
In this case, we find that the AJ erred when she found that some of the incidents (claims 1 through 6) should be dismissed as untimely because they occurred more than 45 days before Complainant's July 7, 2007, initial EEO counselor contact. The AJ fragmented Complainants complaint, but we determine that Complainant's complaint consists of an overall claim that he was subjected to ongoing harassment. EEOC Compliance Manual, Section 2. Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp, v. Morgan, 536 U.S. 101, 117 (2002)). Therefore, because some of the incidents occurred within 45 days of Complainant's initial EEO counselor contact, we find that the AJ improperly dismissed portions of Complainant's harassment claim.
Further, we find that the AJ erred when she found that the alleged incidents were not severe or pervasive enough to constitute a hostile work environment. Drawing all inferences in favor of the party opposing summary judgment, we assume that Complainant's account of the alleged harassment is accurate. In applying the reasonable person standard, the harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). In this case, Complainant has been diagnosed with Post-Traumatic Stress Disorder, and documentation from the Office of Workers' Compensation Programs (OWCP) reflects that Complainant's physician opined that verbal abuse from Agency management precipitated Complainant's Post-Traumatic Stress Disorder. Thus, incidents wherein Agency management allegedly yelled at Complainant, accused him of unethical behavior, called the police on him, and took photographs of him without his consent cannot be viewed in isolation, but must be evaluated in light of Complainant's known vulnerabilities, impairments, and caustic interpersonal history with management. Consequently, we find that a reasonable person in Complainant's circumstances could find the alleged actions sufficiently severe to create a hostile work environment.
Regarding the merits of Complainant's harassment claims, we note that Complainant alleged that S2 threatened him by stating that she previously terminated Hispanic employees. Exhibit 1, p. 2. Similarly, Complainant's Hispanic co-worker (C1) stated that S2 identified three Hispanic employees that she terminated and told him that she could do the same to him. C1's Deposition, pp. 20, 21. S2 denied the accusations. The AJ did not address these accusations in her analysis, but ostensibly discredited or ignored C1's and Complainant's allegations when analyzing his harassment claims. However, we determine that the alleged anti-Hispanic comments made by S2 are highly relevant to the merits of Complainant's harassment claims. In fact, if true, S2's comments are strong evidence of discrimination and cast considerable doubt on S2's asserted reasons for her actions. Moreover, Complainant also alleges that S1 made similar anti-Hispanic remarks, which would likewise cast doubt on the veracity of S1's explanations. As such, a genuine issue of material fact exists over whether management officials made the alleged anti-Hispanic comments. A decision on the merits of Complainant's complaint is improper at this juncture because summary judgment must not be used as a trial by affidavit. Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The credibility of Complainant, C1, S2, and other witnesses must be assessed through live testimony at a hearing. Thus, we find that the AJ erred in issuing a decision without a hearing because there are material facts in dispute, and the credibility of witnesses is at issue.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND this matter for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC San Francisco District Office a request for a hearing within 15 calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 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 issue a decision on Complainant's reasonable accommodation claim 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. 29C.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
July 16, 2012
Date
1 In response to affidavit questions concerning claims 16 through 18, Complainant stated that information regarding these matters was contained in his "pre-complaint, formal complaint, and statements." Affidavit A, p. 66. Although Complainant asserted these claims therein, he did not elaborate with particularity about the details of the allegations beyond his assertion that he did not apply white-out to his CA-20 form.
2 Because Complainant's complaint consists of ongoing harassment claims with related facts and witnesses, we remand it in totality with respect to all alleged bases.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093675
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093675