0120101504
05-07-2013
Marcene P. Juergensen, Complainant, v. Secretary, Department of Commerce (Bureau of the Census), Agency.
Marcene P. Juergensen,
Complainant,
v.
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120101504
Hearing No. 430-2008-00353X
Agency No. 07-63-00081
DECISION
On March 2, 2010, Complainant filed an appeal from the Agency's February 2, 2010, 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the complaint.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether Complainant established that she was subject to discrimination as alleged
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Administrative Clerk, GS-0303-5, in the Agency's Administrative Office, Charlotte Regional Office, in Charlotte, North Carolina. On April 23, 2007, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the basis of race (African-American) when a former employee who had hung a hangman's noose in the workplace in 1996 was rehired on January 17, 2007.
Complainant maintained that she was subjected to a hostile work environment because:
I have to hold my tongue about my opinion, about how I feel about her in person and about how I feel about the fact that I know she is a bigot that knowingly and willingly broke a law and used the excuse that it was a joke. I have to keep in mind that I work in a professional environment and that anything that I say out of turn to her will be held against me. Her presence also makes me feel frustrated and it is sometimes difficult for me to focus and concentrate on my work after seeing her during the workday. As a Black person, her presence symbolizes that our country used lynching to terrorize African Americans and that my supervisors see this atrocity as a joke. I know that lynchings happened in the past but for me to actually work with someone who is suppose to be educated but would think and do something like that and say it is a joke has been harmful to me. And because the hangman's noose was hung after a co-worker attempted to bring inequality to the attention of our supervisors, it reminds me that maybe we haven't come as far as we should.
Complainant's Affidavit at 3.
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 EEOC Administrative Judge (AJ).1 Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's January 2, 2009, motion for a decision without a hearing and issued a decision without a hearing on December 2, 2009.
The AJ found the following facts: in 1996, a Graphic Specialist (GS) hung a noose in the office.2 AJ Decision at 2. Two supervisors were reprimanded for allowing the noose to be displayed and all managers and Geography Section employees, including GS were interviewed and were required to attend training. Id. GS continued to work in the office until her appointment expired following the 2000 Decennial Census. Id. In 2007, GS was rehired by the Agency. Upon GS's rehire, Complainant stated she was initially assigned to take GS' fingerprints and picture identification, but Complainant was not present that day and therefore did not. Id. Although Complainant and GS did not work together, occasionally they would see each other, e.g., in the cafeteria. Id. They also attended five or six joint staff meetings together. Id. According to Complainant, they have said "hello" and "goodbye," to each other but Complainant does not "engage in small talk with her." Id.
The AJ concluded that Complainant failed to demonstrate that she was subjected to a hostile work environment based on the mere rehiring of GS. Id. at 6. The AJ noted that although Complainant mainly argued that the noose GS displayed in 1996 was offensive, Complainant was not present when the noose was hung, did not observe it, and never filed an EEO complaint on the matter. Id. Accordingly, the AJ declined to address the 1996 incident. The AJ noted that Complainant had infrequent and sporadic contact with GS upon her return to the Agency and they do not work in the same department. Id. Since February 2008, Complainant and GS worked in two separate buildings. Id. Therefore, the AJ could not find that the rehiring of GS was: (1) objectively offensive; (2) physically threatening or humiliating; or (3) unreasonably interfered with Complainant's work performance. Consequently, the AJ found that Complainant failed to demonstrate that she was harassed as alleged. Id.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant makes no contentions on appeal. The Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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, at 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").
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).
We find that after a careful review of the record, the AJ erred when she issued a decision without a hearing. The AJ found that because Complainant did not raise the 1996 incident in an EEO complaint, she "[had] no authority to make a determination in this case with regard to how offensive the noose [was] because it is not part of this complaint." AJ Decision at 6. We disagree. As a matter of law, the AJ should have looked into the totality of the circumstances to determine whether the alleged harassment was sufficiently severe or pervasive to have rendered Complainant's work environment hostile.3
Upon finding that the AJ erred by not addressing the noose incident as part of Complainant's overall harassment complaint, at the very least as background evidence, we find that there are genuine issues of material fact in dispute such that a hearing is required. For example, Complainant's testimony, contrary to the AJ's determination otherwise, is that the rehiring of GS was: (1) objectively offensive; (2) physically threatening or humiliating; and (3) unreasonably interfered with her work performance. As noted above, Complainant stated that GS' presence makes her feel frustrated, and sometimes makes it difficult for her to focus and concentrate on her work. She further indicated that, as a Black person, she felt that GS' presence symbolizes that our country used lynching to terrorize Blacks. Finally, Complainant indicated that although she knows that lynchings happened in the past, it has been harmful for her to work with someone who would display a noose; especially when it was hung after a co-worker "attempted to bring inequality to the attention of our supervisors."
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, � 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 [a] 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. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). We therefore find that judgment as a matter of law for the Agency should not have been granted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order 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 Miami 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. T hereafter, 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
____5/7/13______________
Date
1 The Agency initially dismissed the complaint. Complainant appealed the dismissal to the Commission. In Juergensen v. Dep't of Commerce, EEOC Appeal No. 0120073331 (Oct.5, 2007), the Commission reversed the Agency's dismissal and ordered the Agency to investigate the claim.
2 According to the record, GS maintained that she hung the noose as a joke when some Agency computer programmers visited the office due to problems caused by a new software program. Apparently, the noose hanging was in reference to the repeated error message indicating that there was a "hung process."
3 Whether harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6.
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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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