0120150434
12-21-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lynwood R.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120150434
Hearing No. 420201300032X
Agency No. ATL110843SSA
DECISION
On November 12, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 16, 2014, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission VACATES the Agency's final order and REMANDS the case for further processing.
ISSUE PRESENTED
The issue presented is whether Complainant has established that there are genuine issues of material fact such that the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was not appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-8 Teleservice Representative (TSR) at the Agency's Birmingham, Alabama Mega Teleservice Center. Complainant has a physical disability known as Achnodroplasic Dwarfism. He has had the condition since birth. Complainant is four feet tall. He has an average size torso, but has short arms and legs. Due to his stature, he walks or jogs at a pace approximately one-half the speed of an average-size male. His ability to see, reach, move about, and to perform other functions are adversely impacted by his size.
Beginning September 2010 and through August 2011, M-1 was the GS-12 Unit Supervisor and Complainant's first-level supervisor. Complainant was one of 17 employees supervised by M-1. His second-level supervisor was M-2, the GS-13 Section Manager.
Complainant performed duties that involve interpreting complex laws, rules, regulations, and written guidelines (Federal, State, and County). He also performed administrative and clerical processing using computers to reconcile discrepancies and to respond to complex inquiries for technical information and other work product. He performed these functions, in large part, over the telephone.
Complainant contacted an EEO Counselor and subsequently filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (Achnodroplasic Dwarfism) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 19642 when:
a. on August 2, 2011, he was not selected for the position of Social Insurance Specialist (Claims Representative 1) advertised under Vacancy Announcement Number SB-493107-U-RBS;
b. on August 2, 2011, he was not selected for the position of Social Insurance Specialist (Claims Representative 2) advertised under Vacancy Announcement Number SB-493135-11-TPW;
c. on August 2, 2011, he was not selected for the position of Social Insurance Specialist (Claims Representative 3) advertised under Vacancy Announcement Number SB-493204-11-VC; and
d. on August 24, 2011, he did not receive an award for the relevant preceding period.
Complainant's complaint was accepted for investigation. The record reflects that the vacancies were for openings at three field offices in the Birmingham area. A-1, the District Manager of the Birmingham Downtown field office, was the selecting official for the Claims Representative 1 position. A-2, the District Manager of the Birmingham East field office, was the selecting official for the Claims Representative 2 position. A-3, the District Manager of the Bessemer field office, was the selecting official for the Claims Representative 3 position. Complainant applied under each announcement and his name appeared on the best-qualified list for each position.
On July 15, 2011, the Alabama Area Director (AAD) stated that a recommendation form had to be submitted for each applicant by their first- and second-level supervisors. M-1 "Recommended" Complainant for the positions, and M-2 concurred. M-1 stated that she gave Complainant a "Recommended," rather than a "Highly Recommended," because his performance was not outstanding, noting that he did not serve as a mentor and did not maximize his time on the telephone in accordance with policy.
M-1 stated that Complainant's filing time, breaks, and lunches often exceeded Agency guidelines and that his hold and wrap-up times were less than exemplary.3 M-1 noted that although she requested that Complainant return timely from breaks and lunches, and discussed with him the proper use of hold time and wrap-up time, his handling of breaks, lunches, hold time and wrap-up time remained less than outstanding.
The AAD forwarded a list to each selection official with the names of the employees who received "Highly Recommended" recommendations by their supervisors. Given that Complainant was only "Recommended," his name was not on the list. A-1, A-2, and A-3 therefore only reviewed and considered the applicants who were highly recommended by their supervisors. Each selecting official stated that they were not aware that Complainant had a physical disability or that he had prior EEO activity when they made their selections for the three positions.
Complainant complained about the treatment he received from his immediate managers. He stated that M-1 and M-2 frequently asked him "narrow-minded and ignorant" questions about his medical problems and his personal life, and badgered him about how long it took him to use the restroom and the frequency, e.g., he was asked "Does it really take you six minutes to go to the bathroom?"
Complainant questioned the fact that he never received an interview or a "Highly Recommended" recommendation despite receiving more than 50 client accolade letters. According to Complainant, he never had to transfer a caller to a manager because of an inability to control a caller and to guide them to their needed solution. Complainant maintained that he was watched far more closely than his co-workers, and was often quizzed and asked questions that were not asked with the same degree of frequency of other co-workers.
Complainant stated that, from late 2010 until early to mid-2011, another manager (M-3) would frequently talk to him like he was a baby, squat low to the ground with her arms open and ask him to hug her or "give her sugar, etc." Complainant indicated that his attempts to resolve this treatment by speaking with higher-level management were rebuffed. Complainant stated that he complained to the then-Section Manager, M-4, about his treatment and she called him "uppity," and asked if he thought he was "too good to be asked how long it took him to go to the bathroom."
Complainant stated that another Manager, M-6, when the topic of positions being available for promotions in the Agency came up, stated that "he might have a better chance at one of the Benefits Authorizer positions as opposed to that of Claims Representative, because it is one that is "out of the public eye and (he) might feel more comfortable." M-6, according to Complainant, also told Complainant to "call me in four hundred years" when he equated discrimination against himself as a dwarf to race discrimination.
With regard to his allegation of reprisal discrimination, Complainant stated that M-1 commented, "I know you are applying for jobs and you are afraid your past EEO is going to hurt you," but that she would "consider everything a fresh start."4
With regard to claim d, pertaining to an award, M-1 recommended nine employees in her unit for performance awards in August 2011, five for Recognition of Contribution (ROC) Awards and four for Exemplary Contribution of Service Awards (ECSA). To be eligible for a ROC Award, an employee must have received an element average of at least 4.0 on their appraisal. Complainant was not recommended because his element average was 3.0 for his FY 2010 appraisal. M-1 did not recommend him for an ESCA either because of her concerns about his excessive hold and wrap-up times on the telephone and the amount of time he took returning from his breaks and lunch.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an Administrative Judge. The parties were given 75 days to conduct discovery and to supplement the record, after which the Agency filed a motion for summary judgment on April 2, 2013. Complainant filed his opposition to the motion on May 1, 2013. On August 13, 2014, the AJ granted the Agency's motion and issued a decision without a hearing finding no discrimination.
With regard to the non-selections, the AJ primarily found that the decisions not to promote Complainant were made by A-1, A-2, and A-3 who had no knowledge of his disability or prior EEO activity at the time they made their decisions. Complainant, because he did not receive a recommendation of "Highly Recommended," was never referred for consideration to any of the selecting officials. The AJ also found that Complainant did not establish that he was discriminated against with respect to not receiving a ROC award or that he was subjected to a hostile work environment with respect to his non-selections and not receiving an award.
The Agency subsequently issued a final order fully implementing the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, argues in pertinent part that he set forth sufficient evidence to establish a prima facie case of discrimination based on disability and reprisal, and demonstrated that summary judgment was not appropriate. He noted, for example, M-1's and M-2's comments about his bathroom-usage time; questions about medical problems; the reference to his EEO activity when M-1 stated something like, "I know you are applying for jobs and you are afraid your past EEO is going to hurt you" but that she would consider everything a "fresh start," or words to that effect.
STANDARD OF REVIEW
In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at 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
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of 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 AJ 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 (February 24, 1995).
After a careful review of the record, we find that the AJ erred when she concluded that there were no genuine issues of material fact in this case. We note in this regard the frequent references by M-1 and M-2 to the amount of time Complainant took to return from breaks and lunches and the role this played both in his non-selections and not receiving an award. The record indicates that, due to his disability, Complainant walks at a pace approximately one-half the speed of an average size male, and his ability to see, reach, move about, and to perform other functions are adversely impacted by his size. Complainant also offered testimony that he was subjected to ridicule by other managers in the workplace because of his size. Likewise, we note Complainant's testimony that M-1 referred to his EEO activity in relation to his applying for the positions at issue. For these reasons, we find that genuine issues of material fact exist as to whether discriminatory animus towards Complainant because of his disability and previous EEO activity influenced the recommendation that M-1 and M-2 provided.
The AJ focused on the fact that A-1, A-2, and A-3 were not aware of Complainant's disability and previous EEO activity, but she did not take into account the possibility that the selecting officials were used by M-1 and M-2 as cat's paws in order to mask possible discriminatory animus. The term "cat's paw" describes the discriminatory animus of one employee being transferred to another who acts as a conduit. See Staub v. Proctor Hospital, 562 U.S. 411 (2011); Jones v. National Security Agency, EEOC Appeal No. 0720110014 (Jul. 19, 2012). Complainant's allegation of discrimination was that his immediate supervisors, M-1 and M-2, were the discriminating officials due to their recommendation. By only focusing on the selecting officials, the AJ essentially rendered a credibility determination that M-1 and M-2's recommendation and concurrence, respectively, were free of discriminatory animus.
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, Ch. 7, � I; 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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., 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 M-1 and M-2, and Complainant himself. Therefore, judgment as a matter of law for the Agency should not have been granted as to any of the claims brought by Complainant.5
CONCLUSION
After a careful review of the record, including Complainant's arguments on appeal, 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 EEOC Hearings Unit of the 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__12/21/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant participated in EEO activity in November 2009 and March 2010, concerning a non-selection.
3 Placing a caller on hold was deemed appropriate on a limited basis while the TSR sought or received assistance or conducted other activities to serve the current caller. TSRs were expected to complete all appropriate actions while the caller was on the telephone to minimize "wrap up time," or after-call work time.
4 M-1 stated that she was aware that Complainant had participated in prior EEO activity because she read about it in the Agency status report which detailed all EEO actions pending within the Agency.
5 In order to avoid the piecemeal processing of Complainant's claims, we decline to address Complainant's claims regarding the award and his hostile work environment claim at this time. All of these matters should be addressed at the hearing.
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