0120081964
08-27-2008
Deborah A. Riggle, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Deborah A. Riggle,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120081964
Hearing No. 541-2007-00128X
Agency No. BOP-2006-0681
DECISION
On March 18, 2008, complainant filed an appeal from the agency's February
21, 2008 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
VACATES the agency's final order.
BACKGROUND
During the relevant time, complainant worked as a Technical Training
Specialist at the Englewood Federal Correctional Institute Product
Support Center, in Littleton, Colorado. Believing that her supervisor was
harassing her, complainant contacted the EEO office. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
on November 15, 2006, complainant filed a formal complaint based on
sex. In support of her harassment claim, complainant alleged that her
supervisor: increased her workload; made threatening remarks and gestures
(swinging a wooden stick that he called "The Enforcer"); repeatedly made
sexual comments and advances (requests for drinks, motorcycle rides,
private boat rides, breaks in a hotel room); and denied her requests
for an award, a compressed work schedule and annual leave.
At the conclusion of the investigation, complainant was provided
a copy of the investigative file and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ, however, granted the agency's
motion for a decision without a hearing and issued a decision finding
no discrimination.
As an initial matter, the AJ incorporated by reference the agency's
statement of facts. He noted that complainant did not submit a response
to the agency's motion nor did she contest any of the facts as articulated
by the agency.
The AJ concluded that complainant failed to establish a prima facie case
of a hostile work environment based on sex. Although complainant met
the first element, the AJ agreed with the agency that complainant failed
to establish the remaining elements. The complainant, stated the AJ,
failed to show that she was subjected to severe or pervasive harassment.
There was no evidence that complainant was treated differently
than similarly situated male employees. Further, the AJ found that
complainant failed to present a prima facie case of sexual harassment.
According to the AJ, complainant did not proffer more than bare assertions
to establish that she was sexually harassed by her supervisor. The AJ
found no discrimination.
FINAL AGENCY ACTION
In its February 21, 2008 final order, the agency fully implemented the
AJ's decision. Moreover, "for the benefit of the parties" the order
also explained its rationale and "amplifie[d] the facts in the record,
which were not fully explored in the [AJ's] opinion." With respect
to the increased workload, the agency explained that this was not
motivated by discriminatory animus but instead was the result of
larger training budgets. Also, because the new staff member was given
more technical tasks, due to her expertise, she did not share in the
training coordination assignments with complainant. Regarding the
denial of an award, the agency acknowledges that it denied her July 28,
2006 request. However, it stated that complainant was issued several
time-off awards and "Golden Nugget" awards, both before and after her
request. The agency asserts that complainant was not denied leave or
a compressed schedule. Instead, her new supervisor was "confused" as
to whether annual leave could be used in place of sick leave. When he
learned that it could, the leave request was approved. A union agreement
required that the schedule change be addressed through a mediation
procedure, which complainant chose not to participate in.
As for the alleged threatening remarks and gestures by complainant's
supervisor, the agency evaluated complainant's specific references to the
wooden stick, "The Enforcer," in her supervisor's office. The agency
concluded that the stick was not used in an aggressive or intimidating
manner, that the supervisor's superior was present during the incidents,
and that the stick was used with both male and female subordinates.
While some woman may have found the stick to be intimidating not all
female employees did, noted the agency.
With respect to the alleged sexual remarks and gestures, the agency
first noted that complainant failed to promptly inform the agency about
the incidents. When they were brought to management's attention, the
agency contends it immediately initiated an internal investigation which
concluded that the claims were unsubstantiated. The agency stated that
complainant "misinterpreted non-sexual invitations" by her supervisor,
specifically referencing the offer to get drinks, ride his boat, ride his
motorcycle, and get an extra room for breaks during training classes.
Further, the agency noted that since the invitations occurred over
fourteen months they were not pervasive. Even assuming that it was
reasonable to interpret a sexual meaning into the offers, the agency
concluded that the incidents were not severe because there was no physical
touching or direct sexual statement.
CONTENTIONS ON APPEAL
As an initial matter, complainant's attorney explains that when the
agency filed its motion for summary judgment, the motion was "misplaced
in our office and no response was filed within fifteen days." Following
the AJ's November 26, 2007 decision to grant the motion, complainant
requested that the AJ reconsider and submitted a supporting argument.
The AJ considered the complainant's brief, but reaffirmed his decision.
On appeal, complainant sets forth several reasons why the AJ erred in
issuing a decision without a hearing.
First, complainant notes that the AJ needed to view the evidence in
the light most favorable to complainant and conclude that no reasonable
person could find that she was subjected to sex discrimination by her
supervisor. Instead, complainant argues, the AJ inappropriately weighed
the evidence.
Secondly, complainant argues that the AJ misapplied the law in reasoning
that there must be something "sexual" about the harassment. Instead,
states complainant, the harassment must simply be due to the victim's
gender.
Complainant also challenges the AJ's conclusion that the alleged
events are not sufficiently severe or pervasive enough for a reasonable
person would find it to be actionable harassment. He also notes that
the testimony of other female employees establishes the kind of work
environment the supervisor perpetuated.
Finally, complainant argues that in its own order the agency recognizes
that the investigative record is incomplete. For example, the agency
decision stated: "There is no indication on this record that the men in
complainant's office who received similar awards performed similar work
or did not merit their awards." Complainant believes that the present
inadequate record is a reason to find for the agency, but another reason
why a hearing is necessary.
The agency submitted no contentions in response to complainant's appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, 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. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
In finding no discrimination, the AJ relied on the agency's presentation
of the facts, as well as the agency's legal analysis and arguments.
The Commission finds that the AJ failed to consider the facts in the light
most favorable to the complainant. He noted that the record contained
"uncontroverted facts" in the record that show that complainant failed
to establish she suffered discrimination based on her sex. However,
a review of the agency's own decision, and its "amplification" of the
facts, reveals that there are issues of material fact.
For example, while it is undisputed that the RMO has a wooden stick,
"The Enforcer," witnesses disagree on whether the stick was used in
an intimidating manner or not. The RMO denies using it for anything
besides a paperweight. Some female employees attested that it was used
to belittle and threaten.
The current record also reveals that the issue of awards needs further
development. Complainant contends that she was denied a requested award,
and that the RMO only issued awards to the male employees. Although the
agency contends that complainant was given time-off awards and "nuggets",
the record seems to indicate that these are not the type of awards
at issue. The awards given to complainant do not aid in evaluations
or promotions. More than one witness attests that only males have
been issued such awards by the RMO. Further, the instant record does
not address whether the awards purportedly issued to the male employees
were merited. Consequently, we agree with complainant that an issue of
material fact exists with respect to the denial of awards.
Additionally, the AJ determined that the claims of sexual comments
were insufficiently severe or pervasive. However, complainant contends
that even after filing her complaint, the RMO suggested getting a hotel
room during a training session. The RMO acknowledges the request, but
attested that the remark was non-sexual. We find that an assessment as
to the credibility of the RMO, the complainant, as well as the witnesses
she proffers, must be made.
We note that the hearing process is intended to be an extension of the
investigative process, designed to ensure that the parties have "a fair
and reasonable opportunity to explain and supplement the record and, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).
"Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims."
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998). See also Peavley v. United States Postal Service,
EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States
Postal Service, EEOC Request No. 05940578 (April 25, 1995). In summary,
there are simply too many unresolved issues which require an assessment
as to the credibility of the RMO, co-workers, and complainant, herself.
Therefore, the issuance of a decision without a hearing was improper.
CONCLUSION
Therefore, after a careful review of the record, including 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 shall submit to the Hearings Unit of the Denver District
office the request for a hearing within fifteen (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 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 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 27, 2008
Date
2
0120081964
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036