0120132048
07-16-2015
Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120132048
Hearing No. 420-2012-00239X
Agency No. 7K0J11017
DECISION
On April 29, 2013, Complainant filed an appeal 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the Commission VACATES the Agency's final action and REMANDS the matter for further processing.1
ISSUES PRESENTED
The issues presented are (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's allegation that the Agency discriminated against her on the basis of reprisal when it issued her a Notice of Proposed Removal and (2) whether there are genuine issues of material fact that require a hearing on Complainant's allegations that the Agency subjected her to a hostile work environment on the bases of race, color, sex, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Security Specialist, GS-0080-11, at the Agency's 325th Security Forces Squadron (325 SFS), 325th Mission Support Group, 325th Fighter Wing, at Tyndall Air Force Base, Florida. In a formal EEO complaint filed on September 26, 2011, and subsequently amended, Complainant alleged that the Agency discriminated against her on the bases of race (African American), sex (female), color (black),2 and reprisal for prior protected EEO activity. The Agency defined the accepted claims as follows:
A. whether Complainant was subjected to a hostile work environment because of her race, sex, and color when:
1. on November 2, 2010, and December 8, 2010, she received poor evaluations on her civilian progress review worksheets;
2. on May 19, 2011, she was placed on a Performance Improvement Plan (PIP); and
3. she was held responsible for assignments outside of her area of responsibility or ability to control;
B. whether Complainant was discriminated against on the basis of reprisal when:
1. in or around June 2011, her second-level supervisor embarrassed her by introducing her subordinate as the Superintendent of the unit in front of her staff; and
2. in or around June 2011, her second-level supervisor embarrassed and threatened her when he pointed at her and stated, "[Complainant] knows she can be terminated at any time"; and
C. whether Complainant was discriminated against on the basis of reprisal when her first-level supervisor issued her a Notice of Proposed Removal on August 3, 2011.
The Agency determined that Complainant could not seek relief for the following claims because she did not raise them in a timely manner:
1. in September 2010, Complainant's position was reduced from a GS-0080-11/12 to a GS-11;
2. in December 2010, Complainant's first-level supervisor changed Complainant's position from Supervisory Security Specialist duties to clerical duties;
3. in April 2011, Complainant received a poor performance appraisal; specifically, her performance evaluation was downgraded from a level 4 to a level 1; and
4. until July 2010, Complainant was denied a private office space as a supervisor and was required to share space with her staff.
The Agency stated that the incidents raised in those claims could be included as background evidence relevant to Complainant's hostile-work-environment claim. Report of Investigation (ROI) at 70-71.
Complainant began working at the Agency as a Supervisory Security Specialist, YC-0080-02, on October 27, 2008. She received a term appointment not to exceed October 30, 2010. Id. at 106. According to a Standard Form (SF) 50 effective September 28, 2010, the Agency extended the term appointment to September 30, 2011. The SF-50 identified Complainant's organization as "325 Security Forces SQ" and "Plans and Programs." Id. at 107. Complainant's position initially fell under the National Security Personnel System (NSPS). In September 2010, after NSPS was repealed, the Agency converted Complainant's position to a General Schedule (GS) position at the GS-11 level. See id. at 183-85.
While under the NSPS, Complainant received an annual performance rating of "3" (Valued Performer) and a performance award, effective January 1, 2010. She received a performance rating of "4" (Exceeds Expectations), effective December 10, 2010.3 Id. at 138.
The record contains two Air Force Standard Core Personnel Documents (SCPDs) for a Supervisory Security Specialist position. One SCPD, signed by Agency officials in August 2007, identifies the position's duty title as "Chief, Plans and Programs." Id. at 130-33. The second SCPD, signed by Complainant and S1 on November 3, 2010, identifies the duty title as "Chief, Administration and Reports Flight." Complainant wrote on the November 2010 document, "PD does not match duties." Id. at 112-17. Both SCPDs list the same duties: "[p]lans, organizes, and directs the activities of Administration and Reports flight"; "[e]xercises supervisory personnel management responsibilities"; "[r]epresents the Flight with a variety of installation and functional area organizations"; and "[p]rovides advice and assistance to supervisors, managers, commanders and other personnel on the installation." Id. at 112-17, 130-33.
In July 2010, a new Commander of Security Forces (S2) became Complainant's supervisor. See id. at 380. In August or October 2010, a GS-11 Supervisory Security Specialist (S1) whose duty title was Provost Marshall became Complainant's first-level supervisor and S2 became Complainant's second-level supervisor. See id. at 385, 418.
On November 3, 2010, S1 gave Complainant a Civilian Progress Worksheet for the period October 1 to December 31, 2010. S1 assessed Complainant's progress in ten performance elements and in six other areas such as Cooperation/Responsiveness and Communication. For each subject, S1 placed an "X" along an arrowed line; the left side of the line signified "needs significant improvement," and the right side of the line signified "needs little or no improvement." The marks on the November 2010 Worksheet ranged from the middle of the lines to near the right end of the lines. On December 8, 2010, S1 gave Complainant another Civilian Progress Worksheet for the period October 1 to December 31, 2010. The December 2010 Worksheet addressed four performance elements as well as the six other areas. Most of the marks were near the middle of the lines. Id. at 167-68.
By memorandum dated December 16, 2010, S1 notified Complainant that her performance was not acceptable. S1 stated that Complainant "displayed a low level of performance" through "[b]elow standard paperwork and lack of attention to detail; inattentiveness in scheduling; not learning from corrected mistakes; [and] mismanagement of resources." With respect to timeliness, S1 noted that a number of matters were behind schedule. He stated, "You are a leader and I expect you to lead my [sic] example." In addition, S1 asserted that Complainant demonstrated a poor attitude by "[m]aking excuses, claiming ignorance for multiple infractions, disrespectful demeanor, actions and lying to supervisor." S1 informed Complainant that, if she did not improve her performance by March 31, 2011, then she would be rated "Does Not Meet" in at least one core duty and could be placed on a Performance Improvement Plan (PIP). Id. at 139-40.
In another memorandum dated December 16, 2010, S1 cited Complainant for "inappropriate conduct." S1 noted that, during a December 8, 2010, verbal counseling, S1 had told Complainant that her continued misspelling of his name in official documents "was disrespectful and showed a complete lack of attention to detail." He also noted that he had granted Complainant's request to record the counseling session after Complainant assured him that the recording would not be distributed or used without his permission. According to the memorandum, Complainant informed him during a December 9, 2010, verbal counseling session that she had given the recording to her attorney. In addition, S1 stated that Complainant commented that she had not had any problems at work until S1 became her supervisor. S1 characterized Complainant's comment as "insolent" and "disrespectful and accusatory." He advised Complainant that her disrespectful attitude was not acceptable and that further incidents could result in disciplinary action. Id. at 176-77.
On May 19, 2011, S1 gave Complainant a performance appraisal for the period September 12, 2010, to March 3, 2011. S1 rated Complainant as "Does Not Meet" Elements 1 and 2 and as "Meets" Elements 3 and 4. The appraisal document in the record does not define the Elements. Complainant's overall performance rating was "Unacceptable." Id. at 175.
Also on May 19, 2011, S1 gave Complainant an April 27, 2011, memorandum placing Complainant on a 60-day PIP. The memorandum stated that Complainant demonstrated unacceptable performance in Duties 1 and 2. S1 asserted, among other things, that Complainant demonstrated a lack of attention to detail; showed "consistent inattentiveness in basic administrative functions to include formatting, proof reading, organization, planning and scheduling"; did not provide her subordinates with acceptable supervision or direction; and did not understand the Agency's leave policy. The memorandum required Complainant to meet with S1 on a weekly basis to discuss her progress under the PIP. Id. at 141-42.
Complainant's former supervisor, who was then working at a different Agency facility, provided Complainant with a May 24, 2011, letter of recommendation to the hiring authority of another employer. The former supervisor described Complainant as "a top notch supervisor" whose "diligent work ethic and leadership directly contributed to [the] squadron's accolades." He stated, "It was because of her attention to detail and leadership ability that I requested she assume the squadron's Security Program Superintendent position." Id. at 348.
The Inspector General (IG) conducted a compliance inspection of the 325th Fighter Wing on June 6-13, 2011. Complainant alleged that, when the inspection team approached her section, S2 introduced a member of the military (CW1) as the Superintendent of the section. Id. at 253, 268-69. She further alleged that, during a briefing, S2 pointed at her while discussing civilian employees' term-employment status and said that Complainant knew that she could be terminated at any time. According to Complainant, the IG team, CW1, and other section leaders witnessed the incident. Id. at 256, 268. The Inspector General gave an "Excellent" rating to the Administration and Reports Flight section. Id. at 206-09.
Complainant contacted an EEO Counselor on June 20, 2011, to allege that she had been subjected to discrimination based on race, color, sex, and reprisal. Id. at 14. The EEO Counselor notified S2 of Complainant's EEO activity through a July 14, 2011, Command Notification of Pre-Complaint of Discrimination Memorandum. Id. at 41-43.
According to a Supervisor-Employee Brief Report for Complainant, S1 and S2 briefed or counseled Complainant several times between December 8, 2010, and July 11, 2011. For example, on December 8, 2010, S2 briefed Complainant for "failing to follow proper procedures" regarding a subordinate's use of leave. S1 briefed Complainant on that date for "failing to meet standards of timeliness and quality of work" and noted that "[n]umerous letters, memorand[a], and instructions have to be returned to the S-5 section for errors in formatting, spelling, and content." On March 5, 2011, S1 counseled Complainant about the quality and timeliness of work as well as "improper leave policy procedures, poor communication, and lack of accountability." Other briefings concerned the failure to complete a subordinate's performance report, tardiness in completing tasks, absence from a mandatory staff meeting, and the need to improve communications. Id. at 171-74. Although the Report notes that someone left a voice-mail message for Complainant on August 11, 2011, the Report documents in the record indicate that the last meeting occurred on July 11, 2011. Complainant's Opposition to the Agency's Motion for a Decision without a Hearing, Exhibit (Exh.) 3.
Complainant submitted several rebuttal memoranda responding to comments that S1 made during the PIP meetings. For example, in a June 3, 2011, memorandum, Complainant stated that she was not accountable for a missed "suspense" because she was not a contracting officer. In a June 10, 2011, memorandum, Complainant explained that she had missed a staff meeting because she was performing a task that S2 directed her to complete by noon. In a July 11, 2011, PIP rebuttal memorandum, Complainant informed S1 that she had filed an EEO complaint. In a July 25, 2011, memorandum, Complainant asserted that S1 had notified her on July 18, 2011, that the PIP meetings were postponed until further notice. Other memoranda addressed such matters as "missing the Commander's suspense," Complainant's refusal to explain to S1 why she requested two days of sick leave, and her being held accountable for her subordinates after "being carved out of" the chain of command and "not having any management rights." ROI at 143-53.
On August 3, 2011, S1 issued a Notice of Proposed Removal to Complainant. In the Notice, S1 reiterated the performance deficiencies cited in the April 27, 2011, PIP memorandum and stated that Complainant had shown no improvement. He placed Complainant on administrative leave for the 30-day notice period. Id. at 165-66.
Also on August 3, 2011, the 325 SFS/Security Forces Manager announced that the Superintendent of the S-3 unit would become the new Superintendent of Plans and Programs. Id. at 59. It is not clear from the record if the new Superintendent replaced Complainant or CW1.
Complainant, through her attorney, responded to the Notice of Proposed Removal in an August 25, 2011, letter to S2. She argued, among other things, that she was improperly converted from an NSPS Y-02 position to a GS-11 position, that her "position description was wrongfully altered from being security-based to being administratively-based," that the November 2010 Civilian Progress Worksheet included performance standards that were not in Complainant's position descriptions, and that the Agency subjected her to intense scrutiny because she engaged in whistle-blowing activity on June 7, 2011. Id. at 56-58.
Complainant's term appointment expired on September 30, 2011. Id. at 107. By memorandum dated October 6, 2011, S2 notified Complainant that the Agency was no longer pursuing the removal action. Id. at 377.
In her affidavit in the Report of Investigation, Complainant asserted that the November 3, 2010, Civilian Progress Worksheet listed elements that did not pertain to her job descriptions and that the December 8, 2010, Worksheet included a duty (S-5 Security Administration) that did not exist. She stated that she told S1 that the Worksheets and the performance plan did not reflect her duties. Complainant alleged that, after S1 became her supervisor, he made CW1 the section leader and assigned "mostly secretarial duties" to Complainant. According to Complainant, this resulted in a poor performance rating because she did not have a secretarial background. Complainant argued that she would have received higher ratings if the performance plan reflected her actual duties. She believed that her placement on the PIP was hostile because she should not have been expected to know how to perform secretarial duties. Asserting that S1 had her "taking and proofreading meeting minute[s], keeping a tracking matrix, and doing an analysis of paperwork," Complainant stated that paperwork became her "main focus." Id. at 241-45, 263-64.
Complainant asserted that she was responsible for the "Excellent" rating that her section received from the Inspector General in June 2011 and that S1 ignored the rating. Complainant argued that this is evidence that management's actions were not related to her performance and instead occurred because of her race, color, or sex. Id. at 243, 246.
With respect to her allegation that the Agency held her responsible for assignments outside of her area, Complainant asserted that S1 and S2 held her accountable for the actions of military personnel even though Civilian Personnel told her that she could not supervise military personnel. She stated that her section consisted mostly of military personnel and that she "had absolutely no control of the section." Complainant asserted that she informed S1 in December 2010 that S2 was assigning tasks to CW1 and that she "would not know about them until it was too late to meet the suspense." She claimed that CW1 did not work for her and did not follow her directions. In addition, Complainant stated that she received a negative counseling for missing a "suspense" to "descope a contract." According to Complainant, S1 and S2 knew that she did not have authority to make changes to contracts. Further, Complainant alleged that S1 gave her "mostly secretarial duties such as formatting/proofreading meeting minutes and maintaining a tracking matrix for all correspondences." She asserted that, when S1 gave her a performance plan, she told him that the duties were not correct. Complainant believed that the Agency's actions were discriminatory because she was the only African-American section leader and because S2 appointed S1, a Caucasian male who was a GS-11 employee, to be Complainant's supervisor. She alleged that the Agency treated S1 more favorably by allowing him to supervise military personnel, providing him with an office equivalent to the offices provided to other supervisors, and allowing him to receive overtime pay. Id. at 245, 248-51, 430-31.
Complainant stated that S1 cancelled the weekly PIP meetings scheduled for July 18 and 25 and August 1, 2011. She asserted that, after she informed S1 on July 11, 2011, that she had filed an EEO complaint, she "would show up at his office every week only for him to cancel the meeting." According to Complainant, the next meeting with S1 occurred on August 3, 2011, when S1, S2, and two individuals from the Civilian Personnel Office gave her the Notice of Proposed Removal. Complainant believed that the Notice of Proposed Removal was in reprisal for her EEO activity because of the timing of the Notice and because the Agency improperly placed her on a PIP and held her to the performance standards of a secretary. Id. at 253, 259-61.
In addition, Complainant argued that, during the conversion from NSPS to GS, her position should have been converted to a GS-12 position. She asserted that the Agency placed her at the GS-11 level to allow S1 to become her supervisor. According to Complainant, she had more law enforcement and security experience than S1 had and, as a Supervisory Security Specialist, should have been classified at the GS-12 level. Complainant argued that S1, who was a Police Officer, should have been working for her. Id. at 262, 265.
In his affidavit, S2 stated that he supervised four employees and that none of them performed a job similar to Complainant's job. He denied that Complainant performed secretarial work and stated that Complainant's job as Chief of Plans and Programs included "overseeing and reviewing documentation from her section." S2 also stated that he contacted personnel and was told that it is permissible for a GS-11 employee to supervise another GS-11 employee. Id. at 382-83.
S2 did not review the Civilian Progress Worksheets when S1 gave them to Complainant in November and December 2010. He stated that, between September and December 2010, he spoke with Complainant weekly regarding "position requirements, leadership, documentation, meetings and preparation of briefings." S2 asserted that he asked S1 why Complainant, having been on the job for more than a year, seemed to struggle with meeting basic performance standards. According to S2, S1 replied that a Senior Non-Commissioned Officer who left in July 2010 had been completing much of Complainant's workload and managing duties for Complainant. S2 knew that S1 placed Complainant on a PIP, and he reviewed all of Complainant's rebuttals. S2 had not placed any other employees on a PIP prior to Complainant's PIP. Id. at 383-84, 388-90.
S2 denied that Complainant was held responsible for duties outside of her area and denied that Civilian Personnel told Complainant that she could not supervise military employees. According to S2, "[c]ivilian employees can set work priorities, tasks [and] approve leave, but do not have UCMJ authority." He asserted that Complainant did not exercise proper oversight of her section. In addition, S2 stated that he and S1 asked Complainant to work on a contracting matter because she "was the section chief and was responsible to work with contracting as the COR and come up with a course of action." S2 also stated that he reviewed and wrote documents as part of his job, that he did not consider such activities to be secretarial work, and that Complainant did not submit satisfactory paperwork. He acknowledged that there were "some minor concerns" when NSPS employees were converted to GS employees and that "several" position descriptions needed "minor updates," but he asserted that this did not result in Complainant being held accountable for duties outside of her position description. Id. at 392.
S2 also acknowledged that he introduced the "SNCO" as the Superintendent of Complainant's section. According to S2, the Superintendent is a military member who is assigned to a section and is subordinate to the civilian section chief. S2 denied pointing at Complainant and stating that she knew that she could be discharged at any time. He asserted that the "alleged incident did not occur." Id. at 397, 400.
With respect to the Notice of Proposed Removal, S2 stated that Complainant's rebuttal to the Notice was reviewed and considered "based on her history of performance." S2 noted that Complainant was counseled concerning her performance and that S1 gave Complainant "a verbal 'inappropriate conduct'" because she misspelled S1's name. Id. at 403-04.
S2 told the EEO Investigator that Complainant was on administrative leave when he learned of her EEO activity. He believed that the Agency's EEO Office notified him of Complainant's activity around August 3, 2011. Id. at 396.
In response to the Investigator's question about whether he knew what Complainant's race was, S2 stated that he did not know Complainant's race, asserted that he had never thought about it, and noted that the Investigator had identified Complainant's race as African American. With respect to his knowledge of Complainant's sex, S2 stated that Complainant had been introduced to him as "Ms.," that he had "never confirmed her sex" but had not been corrected when he addressed her as "Ms.," that he believed she was a woman "[b]ased on the surname," and that the Investigator had referred to Complainant as a female. He did not know Complainant's color, recalled that it was "maybe light brown or tan," and noted that the Investigator had referred to Complainant's color as black. Id. at 380-81.
S1 similarly stated that he did not know Complainant's race. Noting that Complainant called herself "Ms." and used the women's restroom, S1 stated that he was under the impression that she was female. He did not "know for sure," however. S1 described Complainant's color as "dark complexion." He stated that he learned of Complainant's complaint on July 21, 2011, when he received an e-mail from the EEO Counselor. Id. at 409, 412.
S1 said that he did not take any action after he learned of Complainant's harassment allegations because Complainant was already being considered for removal because of poor performance. He stated that he supervised six civilian employees and six military members and that none of them performed jobs similar to Complainant's. He also stated that he gave Complainant the November and December 2010 Civilian Progress Worksheets because her performance needed improvement. According to S1, "[t]imelines and suspenses were not being completed in a timely manner and the lack of oversight caused unacceptable products." He asserted that, although Complainant was afforded more patience and courtesy than were her military counterparts, she did not perform at their level. He did not provide Civilian Progress Worksheets to other employees because no one else performed job duties similar to Complainant's duties. Id. at 409-14.
Further, S1 stated that he placed Complainant on a PIP because of poor performance. He asserted that he met with Complainant weekly and that Complainant's rebuttals addressed individual performance issues that "were similar (but not the reason) she was placed on the PIP." S1 did not place any other employees on a PIP and was not aware of anyone in Complainant's chain of command placing other employees on a PIP. Id. at 414-17.
S1 asserted that he was classified at the YA-2 level under NSPS, that he was misclassified as a GS-11 employee when he was converted from NSPS to GS, and that Civilian Personnel was correcting the matter. He also asserted that Civilian Personnel permitted him to rate someone who held the same grade level as he "because it was based on duty description and responsibility." Id. at 416.
In addition, S1 stated that Civilian Personnel agreed that Complainant's position description matched her duties. He denied that Complainant was assigned any duties outside of her area and disagreed with the assertion that checking the accuracy of work, formatting work, and following administrative functions fell outside of Complainant's position description. S1 argued that Complainant held misconceptions about her duties and was opposed to performing administrative functions. Id. at 418-19.
S1 stated that he issued the Notice of Proposed Removal because Complainant did not improve her performance after being placed on the PIP. He has not issued Notices of Proposed Removal to other employees. Id. at 424-25.
CW1 stated in his affidavit that Complainant was his first-level supervisor for approximately eight months and that he supervised four military employees. He denied that management officials gave employees tasks outside of Complainant's area of responsibility or ability to control. He acknowledged, however, that S1, S2, and sometimes the senior enlisted person assigned tasks if Complainant was not at work. CW1 confirmed that S2 introduced him as the Superintendent of Plans and Programs, and he stated that S2 explained that the chain of command went from Complainant to CW1 to the next person. He also stated that Complainant "was the focal person for our section" and, based on his observation, that she was a Black female of dark brown complexion. Id. at 443-49.
A Human Resources Specialist stated, based on her observation, that Complainant was an African-American female of black complexion. According to the Human Resources Specialist, Complainant was placed on a PIP because of unacceptable performance. She stated that she recommended that managers meet with Complainant once a week to provide feedback and to tell Complainant where her performance was successful and where it was not. The Specialist stated that other employees had been placed on a PIP, but she did not identify the employees or their units. She believed that she provided guidance to management regarding Complainant's Notice of Proposed Removal. According to the Specialist, the Agency issued the Notice because Complainant's performance did not improve after Complainant was placed on the PIP. Id. at 438-39.
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. Complainant timely requested a hearing. The Agency filed a Motion for a Decision without a Hearing on January 8, 2013, and Complainant filed a response to the Agency's Motion on January 24, 2013. The AJ issued a Decision without a Hearing in favor of the Agency on February 6, 2013.
In his decision, the AJ found that a decision without a hearing was appropriate because there were no genuine issues of material fact and no issues of credibility that would necessitate a hearing. With respect to Claim A, the AJ found that there was no evidence that the workplace was so permeated with discriminatory intimidation that one could infer that it was attributed to Complainant's race, color, or sex. He concluded that there was no correlation between Complainant's protected status and the conduct about which she complained. With respect to Claim B, the AJ found that there was no evidence that the Agency subjected Complainant to any conduct that would deter a reasonable employee from making or supporting a discrimination complaint. The AJ dismissed Claim C pursuant to 29 C.F.R. � 1614.107(a)(5) on the ground that it alleged a proposal to take a personnel action.
As noted above, when the Agency failed to issue a final order within forty days of receipt of the AJ's decision, that decision became the Agency's final action pursuant to 29 C.F.R.� 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the AJ erroneously granted the Agency's Motion for a Decision without a Hearing and erroneously dismissed Claim C. She contends that there are genuine issues of material fact concerning such matters as the change in her duties, her job performance, and the Agency's reasons for its actions.
In addition, Complainant argues that she established a prima facie case of a hostile work environment. She asserts that her supervisor assigned her work that was "stereotypically secretarial" and "made her serve as the section secretary rather than as a Supervisory Security Specialist." She also asserts that the Agency has not explained why it appointed S1, "a White male of the same grade (but with less education and experience)," to supervise Complainant, "the only African American woman in the same position for the 325th Fighter Wing." Similarly, she contends that the Agency has not addressed the differences in her work record before and after S1 became her supervisor. Complainant argues that it is difficult to understand how the AJ found no connection between the Agency's actions and her protected status "where the downfall of a high-performing and successful African American woman was carried out with such rapidity, with such apparent lack of concern for personnel rules, and without any legitimate nondiscriminatory explanation."
With respect to Claim B, Complainant argues that the allegations are part of her hostile-environment claim and that the AJ should have considered them as such. She notes that, in her Opposition to the Agency's Motion for a Decision without a Hearing, she asserted that the EEO Counselor improperly framed Claim B as a retaliation claim. Complainant argues that the Agency "compounded the harassment by publicly stating she was no longer viewed as the Superintendent and that she could be terminated at any time." She contends that the AJ's refusal to view Claim B as part of the hostile-environment claim constitutes reversible error. She also contends that there is a factual dispute about whether the events described in Claim B occurred.
Finally, Complainant contends that Claim C alleged an adverse action and that there is evidence to refute the Agency's articulated reason for issuing the Notice of Proposed Removal. Further, she argues that the temporal proximity between managers' notice of her EEO activity and the issuance of the Notice establishes a prima facie case of reprisal.
In response, the Agency argues that a preponderance of the evidence supports the AJ's decision. The Agency contends that the AJ correctly concluded that Complainant did not establish a claim of hostile work environment. It asserts that the Civilian Progress Worksheets were legitimate attempts to correct Complainant's performance deficiencies, that the Agency placed Complainant on a PIP because of her poor performance, and that Complainant has not explained when or how the Agency held her responsible for duties outside of her ability to control. In addition, the Agency argues that Complainant may not challenge the Agency's designation of S1 as her supervisor because Complainant may not raise new claims on appeal.
With respect to Claim B, the Agency states that Complainant did not challenge the Agency's definition of the accepted claims after her receipt of the Agency's acceptance letter and did not move to amend her harassment claim to include the allegations raised in Claim B. The Agency argues that the AJ properly applied a reprisal analysis to Claim B. The Agency also argues that, although there exists a factual dispute about whether the actions alleged in the claim occurred, neither fact is material. In that regard, the Agency notes that the actions occurred before Complainant contacted an EEO Counselor. The Agency contends that, as a matter of law, reprisal could not have occurred.
With respect to Claim C, the Agency argues that, even if the AJ improperly dismissed the claim, there is no evidence that the Agency's conduct would deter a reasonable employee from making or supporting a discrimination complaint. The Agency contends that it issued the Notice of Proposed Removal because Complainant failed the PIP and that there is no nexus between Complainant's protected activity and the issuance of the Notice.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, 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 an AJ's decision to issue a decision without a hearing and the decision itself 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 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
Dismissal of Claim C
The AJ dismissed Claim C pursuant to 29 C.F.R. � 1614.107(a)(5) on the ground that it alleges a proposal to take a personnel action. Commission Regulation 29 C.F.R. � 1614.107(a)(5) provides that an Agency shall dismiss a complaint that "alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges that the proposal or preliminary step is retaliatory." The Commission revised the regulation in 2012 to add the language concerning allegations of retaliation. 77 Fed. Reg. 43,498 (July 25, 2012). The revision clarified that proposed actions may be adverse actions in the reprisal context if they are reasonably likely to deter protected activity. Id. at 43,500-502; see also EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim).
In this case, Complainant alleged that the Agency issued the August 3, 2011, Notice of Proposed Removal in reprisal for her protected EEO activity. The threat of removal from employment, even if not ultimately acted upon, is adverse and would dissuade a reasonable employee from engaging in protected EEO activity. See, e.g., Taylor v. U.S. Postal Serv., EEOC Appeal No. 0120112489 (Jan. 27, 2012) (allegation that proposed removal, which was rescinded through grievance process, was retaliatory stated a viable harassment claim). Accordingly, we find that Complainant has stated a claim of alleged harassment and that the AJ erroneously dismissed Claim C.
Decision without a Hearing
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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
For the reasons explained below, we find that a decision without a hearing was inappropriate in this case because material facts are in dispute and the credibility of witnesses is at issue.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
In this case, a fair reading of the record establishes that Complainant is alleging that the Agency engaged in a continuing pattern of discriminatory harassment that culminated in the issuance of the Notice of Proposed Removal. We agree with Complainant that Claim B was erroneously framed as two separate allegations of reprisal and instead should be viewed as part of her overall claim of a discriminatorily hostile work environment. To avoid fragmentation of Complainant's complaint, all of Complainant's allegations should be viewed as part of her harassment claim. See generally EEO MD-110, at Chap. 5, � III.
Further, there are factual disputes about Complainant's assigned duties and the quality of her job performance. For example, Complainant asserts that she discriminatorily was assigned duties such as taking minutes of meetings, maintaining a matrix for correspondence, and analyzing paperwork. S1 and S2, on the other hand, assert that Complainant's duties necessarily included reviewing documents, submitting satisfactory paperwork, and following administrative functions. The record does not disclose whether other section leaders were required to perform similar functions and, if so, whether the quality of their work was comparable to or better than the quality of Complainant's work. The record likewise does not disclose the extent to which Complainant was responsible for the "Excellent" rating that the Inspector General gave to the Administration and Reports Flight section in June 2011. Similarly, there is a factual dispute about whether Complainant demonstrated a lack of attention to detail, as S1 stated in the memorandum placing Complainant on a PIP; whether she displayed commendable attention to detail, as her former supervisor indicated in the letter of recommendation; or whether her performance deteriorated after S1 became her supervisor.
There also is a factual dispute about whether S2 pointed at Complainant during a briefing and stated that she knew that she could be terminated at any time. Complainant alleged that S2 did so, but S2 denied the allegation.
In addition, credibility determinations need to be made. For example, although CW1 and the Human Resources Specialist readily identified Complainant's race and sex, S1 and S2 claimed not to know Complainant's race and believed Complainant to be female because she used the women's restroom and the term "Ms." It is not clear whether S1 and S2 in fact were unsure of Complainant's race and sex or whether they intentionally chose to be less than forthcoming in their affidavits.
It also is not clear when S1 and S2 became aware of Complainant's EEO activity. Although the record contains a July 14, 2011, Command Notification of Pre-Complaint of Discrimination Memorandum addressed to S2, S2 stated in his affidavit that he became aware of Complainant's EEO activity around August 3, 2011. Similarly, although Complainant mentioned the EEO complaint in her July 11, 2011, PIP rebuttal, S1 stated in his affidavit that he learned of Complainant's EEO activity on July 21, 2011. We cannot tell, based on the record before us, whether there is an explanation for the discrepancies between the documented notification dates and the dates on which S1 and S2 stated that they learned of Complainant's protected activity.
Therefore, we concluded that a decision without a hearing was inappropriate and that Complainant is entitled to a hearing on her complaint. On remand, the AJ should conduct a hearing on all of Complainant's claims, including Claim C.
CONCLUSION
Based on a thorough 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 in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Birmingham 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
July 16, 2015
Date
1 When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, that decision became the Agency's final action pursuant to 29 C.F.R.� 1614.109(i).
2 During the investigation of her complaint, Complainant identified her color as brown. Report of Investigation at 239.
3 The record, which contains a summary of Complainant's performance-appraisal history, does not contain copies of the appraisals. Although unclear, it appears that the "Exceeds Expectation" rating pertained to an appraisal period that ended in September 2010.
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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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