Complainantv.Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity CommissionJul 1, 2014
0120120244 (E.E.O.C. Jul. 1, 2014)

0120120244

07-01-2014

Complainant v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.


Complainant

v.

Joshua Gotbaum,

Director,

Pension Benefit Guaranty Corporation,

Agency.

Appeal No. 0120120244

Hearing No. 570-2009-00614X

Agency Nos. 08-18, 08-13, 09-03

DECISION

Complainant timely filed an appeal from the Agency's 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. 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.

ISSUES PRESENTED

The issue presented is whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS-12, at the Agency's Financial Operations Department (FOD), Collection and Compliance Division (CCD) in Washington, D.C. Report of Investigation (ROI), at 1. The Financial Program Manager served as Complainant's first-level supervisor (S1) (male, Caucasian). ROI, Tab D1, at 1. Complainant was also supervised by the Team Leader (female, Caucasian). Id. Complainant's position involves processing requests for refunds to businesses that contend they overpaid pension insurance premiums owed to the Agency.

Beginning in May 2007, Complainant represented several employees in EEO matters. Id. at 1-7. From September 2007 through November 2007 Complainant represented a coworker (C1) in helping her to file an EEO complaint, naming members of CCD management as responsible management officials. ROI, Tab A, at 1. Complainant and other employees also served as witnesses in C1's EEO case.

Complainant filed three EEO complaints on February 29, June 6, and October 10, 2008, respectively. Therein, Complainant alleged that the Agency subjected him to harassment and discriminated against him on the bases of race (African-American), sex (male), color (black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. he was subjected to increased scrutiny and surveillance;

2. he was removed from a special project;

3. the Human Resources Department (HRD) did not investigate his allegation of harassment;

4. he was not selected for a Collections Analyst position; and

5. management officials made derogatory comments about him.

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 Complainant's objections, the AJ assigned to the case granted the Agency's September 14, 2009, motion for a decision without a hearing and issued a decision without a hearing in favor of the Agency on August 24, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

AJ's Decision

The AJ found the following facts: The Agency announced a vacancy for a GS-12/13 Collections Analyst position in October 2007, for which Complainant applied. The position required one year of experience demonstrating skill in debt collection, judicial decisions concerning debt collections, and collection practices and procedures. Complainant's application showed no experience pertaining to judicial decisions concerning debt collections. An Accountant (male, Caucasian) reviewed the applications and rated applicants "qualified" or "best qualified." Because Complainant lacked experience with judicial decision concerning debt collections, Complainant was excluded from the certificate of eligibles, and therefore was not considered for the position. On February 26, 2008, the Agency selected a CCD employee (female, Caucasian) for the position. The selected employee had experience with judicial decisions concerning debt collections and had been rated Outstanding in FY 2007.

On December 8, 2007, the Team Leader e-mailed Complainant directing him to complete 17 credit-balance packages over the next two weeks. Complainant objected to the assignment, noting that priority had been placed on refund processing. Complainant met with the Team Leader to discuss the credit-balance assignment and the processing of refunds. The Team Leader then e-mailed Complainant with a timeline for completing the project, as well as the refunds. Complainant responded to the e-mail, noting that the timeline was impossible to achieve. On December 12, 2007, the Team Leader e-mailed Complainant to reiterate the process for approving premium-refund packages. The Team Leader explained that Complainant should be able to review most refund packages quickly. Unhappy with the Team Leader's e-mail, Complainant forwarded it to the Human Resources Labor Relations Specialist. In another December 12, 2007, e-mail copied to the Labor and Employee Relations Manager, Complainant requested that the Agency take action to stop harassment and retaliation by S1.

Beginning in 2004, the Agency had been working to develop a new accounting software system called the Premium & Practitioner System (PPS). The Agency initially planned PPS User Acceptance Testing (UAT) for September 18 and October 16, 2007, but delayed the testing until November 2007. Complainant's primary duty area, processing refunds, hits peak season in November/December. Because S1 needed Complainant to process refunds, he did not schedule Complainant for UAT training at that time. The UAT training continued through March 2008, and Complainant performed testing in January and February on three occasions.

The AJ found that Complainant failed to establish a prima facie case of discrimination with respect to the non-selection. The AJ found that Complainant was not similarly situated to the selected employee. The AJ noted that the selected employee met all the specialized experience requirements of the position and received an "Outstanding" in her FY2007 performance appraisal. The AJ noted that Complainant lacked the required specialized experience and was rated "Excellent" in his FY2007 performance appraisal.

The AJ also found that Complainant failed to establish a prima facie case of discrimination when the Agency: (1) monitored his performance, gave him an unrealistic deadline, and scrutinized time he spent on lunch and union activities; (2) removed him from UAT training; (3) did not investigate his December 12, 2007, harassment claim; and (4) injured his reputation by misrepresenting to the Chief Financial Officer (CFO) that he was not a productive employee. The AJ found that the claims did not affect the terms and conditions of Complainant's employment. The AJ found that Complainant presented no evidence that these claims significantly changed his employment status.

The AJ also found that the Agency articulated legitimate non-discriminatory reasons for not selecting Complainant; namely, that he did not have the one year of specialized experience required for the position. The AJ noted that Complainant lacked experience regarding judicial decisions concerning debt collections. With regard to Complainant's claims that he was under improper surveillance, the AJ found that Complainant did not establish that either S1 or the Team Lead's actions would deter a reasonable perform from engaging in protected activity. With respect to Complainant's claim that the Agency did not investigate his harassment claim, the AJ noted that that Agency did not ignore his allegations. The AJ noted that the Agency was addressing complaints about the Team Leader's interactions with her team. Regarding the UAT training, the AJ noted that S1 needed Complainant to process funds, so he did not schedule Complainant for training at that time. The AJ noted, however, that S1 later scheduled Complainant for UAT training in January and February on three occasions. The AJ also found that Complainant's allegations lacked evidence of abusive language or conduct that would rise to the level of a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, contends that management subjected him and four other employees in his work group to ongoing harassment beginning in May 2007. Complainant contends that S1 and the Team Leader as well as other management officials degraded employees and imposed impossible work requirements. Complainant contends that the Agency's HRD acknowledged in writing that the Team Leader had been treating team members unprofessionally. Complainant contends that the Agency labeled him and other employees as disgruntled and lazy. Complainant contends that after she participated in C1's EEO matter, the Team Leader increasingly yelled at him and treated him in a demeaning manner.

With regard to his non-selection to the Collections Analyst position, Complainant contends that the Agency falsely found that he did not have experience with judicial decisions concerning debt collection. Complainant contends that he answered "yes" on the fifth page of his application that he did have such experience. Complainant contends that the Agency failed to produce the application of the Caucasian, female selectee, so evidence of her qualifications is lacking. Complainant contends the Agency was aware that he had experience involving judicial decisions because it trained him.

Complainant also contends that he and other employees involved in the EEO process were asked by the Team Leader to complete 100 cases an hour compared to only 15 a day previously. Complainant contends that an HRD official testified that the Team Leader's work requirements raised "red flags" because of the sudden change. Complainant contends that the Agency admitted in March 2008 that he and other employees had legitimate concerns about unprofessional treatment by S1 and the Team Leader.

ANALYSIS AND FINDINGS

AJ's issuance of a 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).

The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 059:50628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 2.5, 1995). The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at Ch. 7, � 1.; see also 29 C.F.R.

� 1614.109(e). In the instant case, we find that the AJ improperly issued a decision without a hearing because there are material facts in dispute, and the credibility of witnesses is at issue in this case as explained below.

Disparate Treatment (nonselection)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).

In order to establish a prima facie case of discrimination on the basis of reprisal, a complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of his protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse action. See Whitmire v. Dep't of the Air Force. Appeal No. 01A00340 (Sep. 25, 2000).

In order to establish a prima facie case of discrimination based on race, sex, or color under Title VII, a complainant must demonstrate that: (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of his protected classes. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sep. 26, 2002).

In the instant case, the AJ found that Complainant failed to meet the third prong of the prima facie case based on race, sex, and color. Although the selectee was outside of Complainant's protected classes, the AJ found that she was not similarly situated to Complainant. The AJ found that the selectee had experience with judicial decisions concerning debt collections, while Complainant did not. The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that Complainant again did not have the necessary experience with judicial decisions concerning debt collections.

However, Complainant contends that the Agency falsely claimed that he did not have the experience with judicial decisions concerning debt collections. We note the record reflects that Complainant answered "yes" on of his application that he did have such experience. ROI, Tab E-10d, at 5. We further note that the record does not contain the application of the Caucasian, female selectee, so it is unclear whether she had such experience. ROI, Tab F2, at 1. We note that Complainant contends the Agency was aware that he had the requisite experience because it trained him. We also note that Complainant contends that the Accountant who excluded his application was surely aware of his EEO activity. Complainant contends that it was commonly known throughout the CCD that he was involved in EEO activities. The record reflects that the Accountant who excluded Complainant from selection was not asked if he had knowledge of Complainant's EEO activity. ROI, Tab D-12.

We also note that a coworker (C2) (female, African-American) testified that she also applied for the position and felt the selection process was unfair. ROI, D-11, at 2. C2 testified, "When the Caucasian female Collection Analyst left another Caucasian female was immediately given the duties. [The selectee] had to come to me to learn the Job. . . . It is believed she is a family friend of [S1]." Id.

Based on the above, we find that there are genuine issues of materials facts in dispute pertaining to the non-selection of Complainant.

Hostile Work Environment

We also find there are material facts in dispute and the credibility of witnesses is at issue concerning Complainant's claim that he was subjected to hostile work environment harassment based on race, sex, color, and reprisal. The AJ found that Complainant's allegations lacked evidence of abusive language or conduct that would rise to the level of a hostile work environment. However, in a memorandum dated March 3, 2008, the Agency noted that employees had voiced concerns that the Team Leader had been engaging in unprofessional behavior with them. Complainant's Response to the Agency's Motion for Summary Judgment, Attachment 1. Also, an Attorney in the Office of the Chief Counsel (OCC) stated that "minority employees or those who have filed EEO actions are treated more harshly by [the Agency's] labor management officials in investigations actions." Id., Attachment 3. This Attorney further stated that S1 had been asking which employees were involved in C1's EEO case. Id. We additionally note that the Union on November 20, 2007, filed a grievance noting:

[The Team Leader] was heard berating an employee and was sending accusatory, harsh emails to employee [sic] who invoked the EEO process . . . . Indeed, as a result of a recent EEO informal complaint, several employees testified about the abusiveness in the environment. . . . The abusiveness and bullying is notorious and negatively affects the morale of the staff. As a result, some employees have been reassigned to get away from the abusiveness.

Id., Attachment 5, at 1.

We further note that Complainant contends that he received an e-mail on December 12, 2007, from the Team Leader that set impossible and unethical work requirements. Complainant contends the Team Leader demanded that he and others involved in the EEO process complete 100 cases an hour compared to only 15 a day previously. The record reflects that a coworker (C3) (female, Asian-American), who was another witness for C1's EEO complaint, testified that she also was ordered to complete 100 cases an hour, which she felt was unrealistic and stressful. ROI, Tab D-9, at 3. C3 additionally testified, "I was not involved in the UAT training. None of the people who became witnesses to the EEO complaints of co-workers were involved in the UAT training program." Id. at 2. The record also reflects that C2 testified that the Team Leader said that Complainant "was lazy and did not want to do his job." ROI, Tab D-11, at 3. C2 further testified:

I feel it is unfair of managers to say negative things about Complainant. It is personal and not professional. There is no documentation or formal actions concerning Complainant's work performance, productivity, or ethics.

Id.

Assuming the above incidents are true, these are actions that can rise to the level of a hostile work environment based on, at least, Complainant's protected EEO activity. The credibility of Complainant, witnesses, and management officials must be assessed through live testimony at a hearing. As such, 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.

CONCLUSION

After a careful review of the record, the Commission VACATES the Agency's final order adopting the AJ's decision and REMANDS the matter to the Agency in accordance with this decision and the ORDER below.

ORDER

The Agency shall submit to the Hearings Unit of the EEOC's Washington Field Office the request for a hearing, as well as the complaint file, within thirty (30) 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 of the Washington Field Office. Thereafter, the Administrative Judge shall 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 1, 2014

Date

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0120120244

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120120244