James E. Cooke, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. Request No. 05A60305 Request No. 05A50929 Appeal No. 01A51683 Agency No. 2004-0658-2003102056 Hearing No. 120-2004-00256X DECISION TO RECONSIDER The Equal Employment Opportunity Commission (EEOC or Commission), on its own motion, reconsiders the decisions in James E. Cooke v. Department of Veterans Affairs, EEOC Request No. 05A50929 (September 22, 2005) and Cooke v. Department of Veterans Affairs, EEOC Appeal No. 01A51683 (April 29, 2005). EEOC Regulations provide that the Commission may, in its discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.405(b). ISSUE PRESENTED Whether there are genuine issues of material fact warranting a hearing on the complainant's claim that he was discriminated against based on his race (Caucasian), sex (male), and reprisal for EEO activity under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. when he was subjected to sexual harassment, which created a hostile working environment and led to his suspension, effective April 16, 2003. BACKGROUND The complainant worked as a maintenance mechanic at the agency's Veteran Affairs Medical Center (VAMC) in Salem, Virginia. He was assigned to the plumbing shop. On May 28, 2003, Cindy L. Nicholas, an Electronic Industrial Controls Mechanic was assigned to the plumbing shop.[1] Of the nine employees in the plumbing shop, Cindy Nicholas was the only female. The staff consisted of a pipe fitter supervisor, a pipe fitter, mechanics, a plumber, an insulator, and a mechanics' helper. Cindy Nicholas indicated that some of her co-workers immediately treated her with disrespect and did not want to work with her. The complainant befriended Cindy Nicholas and they started working together on projects in later June 2002. There is evidence that around this time rumors began in the plumbing shop that they were having an affair, and comments of an explicit sexual nature were made about Cindy Nicholas and the complainant's connection to her. The complainant contended that because of his association with Cindy Nicholas, he was harassed. He contended that identified co-workers in the plumbing shop talked explicitly about a sexual relationship between himself and Cindy Nicholas, and in time there were false and hurtful rumors all over the VAMC that they were having an affair. He contended that everywhere he went, people would say things like, referring to Cindy Nicholas, where is your "girlfriend" and "lover." Rumors of an affair were corroborated by the statements of Cindy Nicholas and the complainant's direct supervisor (Supervisor 1), who retired on January 23, 2003. The complainant stated that in January or February 2003, his wife came to the VAMC and his co-worker pipe fitter told her that he and Cindy Nicholas were "hooked" or "connected" at the hip. Similarly, Cindy Nicholas stated that the rumors escalated, and on January 18, 2003, her life partner was told by the spouse of the plumbing shop auto mechanic to watch out because the complainant was trying to "hook up" with Cindy Nicholas. Regarding sexually explicit language, the complainant stated that in August 2002, the plumbing shop sheet metal mechanic solicited Cindy Nicholas to sexually lead him on in the service room so men in the shop could watch and see what he would do.[2] The complainant wrote that in October 2002 he was asked by the plumbing shop auto mechanic how Cindy Nicholas was in bed, saying he wanted to make it with her because he "loved to eat pussy," as did Cindy Nicholas. According to the complainant, on one day in October 2002 the auto mechanic repeatedly asked him where he was "fucking" Cindy Nicholas because he "smelled like pussy." The complainant wrote that in January 2003, the auto mechanic repeatedly engaged in conduct very similar to the above, but sometimes more severe. The complainant wrote that the auto mechanic, in reference to his claim of an affair, would pretend that he was smelling "pussy" on him and pretended to smell Cindy Nicholas when she was not looking. The complainant stated that from about August 2002 to February 2003 the auto mechanic talked quite a bit about wanting to have sex with Cindy Nicholas and "fuck her straight." He added that the plumbing shop insulator mechanic said he liked Cindy Nicholas's breasts, would like to "fuck" her, and thought he could "fuck her straight." The complainant indicated that he repeatedly communicated that the sexual talk was unwelcome. The existence of such verbal conduct by the plumbing shop auto mechanic and insulator mechanic was corroborated by the statement of a contractor who wrote that he overheard a sexually explicit conversation between them in early January 2003. According to the contractor, the auto and insulator mechanics were discussing the complainant and Cindy Nicholas having sex, and the auto mechanic said they were always in places where they could "fuck" without getting caught. At least three people claimed that the complainant's second level supervisor, the Manager of the Maintenance and Operations Division, said that he and Cindy Nicholas were seen holding hands. Cindy Nicholas denies doing so, and the complainant stated he told the Manager this never occurred. Cindy Nicholas referred to the affair and sexual talk as rumors. On January 28, 2003, there was an incident where the complainant confronted several plumbing shop co-workers over the rumors of an affair. He was charged with disrespectful conduct, and the specifications included threatening to whip the "ass" of everyone spreading rumors, poking the chest of the auto mechanic, and grabbing the shirt and coat collar of the sheet metal mechanic. The complainant was suspended for five days based on the above charge commencing on April 16, 2003. He denied touching as described above. Following an investigation of his claims, the complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding no discrimination. The AJ's decision concluded that the complainant maintained that he was subjected to harassment because of the sexual orientation of Cindy Nicholas, who is gay. The decision found that there was no discrimination under Title VII insomuch as the complainant contended he was harassed because of his association with a gay co-worker. The decision also found that the complainant failed to raise an inference of discrimination regarding being suspended for disrespectful conduct towards his co-workers on January 28, 2003. The agency's final order implemented the AJ's decision. On appeal, the complainant argued, through his attorney, as he did in response to the agency's motion for summary judgment, that he was harassed because he was willing to work with Cindy Nicholas and refused to ostracize her as other employees did because she was female. He argues that Cindy Nicholas was ostracized because she is a woman, not simply gay, and the rumors of them having a heterosexual affair support his claim that he was harassed because of his association with a female co-worker. In response to the appeal, the agency argued that the complainant claimed he was harassed based on his association with a gay co-worker. In Cooke v. Department of Veterans Affairs, EEOC Appeal No. 01A51683 (April 29, 2005), the EEOC affirmed the agency's final order. The complainant filed a request for reconsideration, largely reiterating what he argued on appeal. The agency's response largely reiterated what it argued below. The Commission denied the complainant's request to reconsider its appeal decision. Cooke v. Department of Veterans Affairs, EEOC Request No. 05A50929 (September 22, 2005). It stated that he sought to change his complaint to state he was harassed because of his association with a female. ANALYSIS AND FINDINGS EEOC Regulations provide that the Commission may, in its discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.405(b). Prior to considering whether the Commission should on its own motion reconsider the decision in Cooke, EEOC Request No. 05A50929, the Commission reviewed the pending appeal of Cindy Nicholas, Nicholas v. Department of Veterans Affairs, EEOC Appeal No. 01A51368. While the Commission is issuing separate decisions in these cases because their procedural postures vary, they are being issued jointly. In Nicholas, we are determining for the reasons stated therein that there are genuine issues of material fact regarding whether Cindy Nicholas was discriminatorily harassed because of her gender. Many of the alleged harassing incidents in both cases arise from the same incidents and/or are interrelated. In light of this, we are reexamining whether the AJ's decision was properly issued without a hearing in Cooke. 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. As stated above, the AJ's decision found that there was no harassment discrimination insomuch as the complainant contended that he was harassed because of his association with a gay co-worker. Discrimination based on sexual orientation is not covered by Title VII. The decision also found that the complainant failed to raise an inference of discrimination regarding being suspended. A reading of the record shows that it is undoubtedly true that some of the claimed events occurred because the complainant's association with a gay co- worker. For example, the complainant stated that in February 2003, he found a note that said he was gay, and he believed like comments were because of his association with a gay co-worker. The complainant also claimed, however, that harassment was directed at him because he associated with Cindy Nicholas and she is female, and there is a genuine issue of material fact regarding this. He raised this during the EEO investigation and with the AJ. The rumors about the complainant having an affair with and "fucking" Cindy Nicholas fall into this category. So does the alleged request for Cindy Nicholas to sexually lead the complainant on in the service room so men in the shop could watch and see what the complainant would do. Further, if harassment was simultaneously directed against the complainant both because of his association with Cindy Nicholas because of her sexual orientation and gender, Title VII still protects the gender basis. Sexton v. Department of Transportation, EEOC Request No. 05970111 (June 17, 1999) (claim is actionable under Title VII where there is evidence of harassment based on gender, and not solely on sexual orientation). According to the counselor's report in Cindy Nicholas's case, an agency registered nurse who was also chief steward (female) stated there were two things going on with Cindy Nicholas, i.e., she was a female working in a predominately male occupation and was openly gay. She stated that because men in the plumbing shop were avoiding Cindy Nicholas, the complainant took it upon himself to befriend her, and that is when the affair rumors started. In unsigned writings the complainant's retired supervisor wrote that Cindy Nicholas's gender and her personal life choices were a problem for some employees, and he believed this was held against her and in turn the complainant. Further, the explicit alleged workplace sexual talk that occurred outside the complainant's presence would likely contribute to a hostile work environment by poisoning the atmosphere with disrespect toward the complainant. An example would be the alleged ugly rampant rumors of an affair. Also, to the extent any of this alleged sexual talk got back to the complainant, it would contribute to the harassment. If the alleged harassment incidents occurred and were based on the complainant's association with Cindy Nicholas because of her gender and happened as frequently as the complainant claims, a fact finder could reasonably find unlawful sexual harassment against the complainant. In its motion for summary judgment, the agency argued that it took action to stop the gossiping about the complainant. However, there is a genuine issue of material fact regarding whether the action was prompt and effective. In response to the question of whether the complainant complained to him that he was sexually harassed, the complainant's now retired supervisor stated that in October 2002 the complainant complained to him that the auto mechanic made comments that the complainant wanted to have sex with Cindy Nicholas. The retired supervisor indicated that he was aware early on of "mean spirited" rumors of an affair. After a careful review of the record, we find that the AJ erred when she concluded that there was no genuine issue of material fact in this case. As there are genuine issues of material fact regarding the complainant's harassment claim, we find the same is true for the suspension incident, which was part of the harassment claim. 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 various management officials, co-workers, and the complainant himself. Therefore, judgment as a matter of law for the agency should not have been granted as to the complainant's claim. As previously stated, the Commission is jointly issuing this decision and the decision in the case of Cindy Nicholas, i.e., Nicholas v. Department of Veterans Affairs, EEOC Appeal No. 01A51368. Because many of the events which form the bases of these cases are the same, many of the involved management officials and co-workers are the same, and the complainants are represented by the same attorney, we direct that these two cases be consolidated by the agency and in processing by the EEOC hearings unit. CONCLUSION Therefore, after a careful review of the record, the Commission on its own motion reconsiders the decisions in Cooke v. Department of Veterans Affairs, EEOC Request No. 05A50929 (September 22, 2005) and Cooke v. Department of Veterans Affairs, EEOC Appeal No. 01A51683 (April 29, 2005). Both decisions are vacated. 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 EEOC's Charlotte District Office a request for a hearing within fifteen (15) calendar days of the date this decision becomes final on the claim of whether complainant was discriminated against based on his race (Caucasian), sex (male), and reprisal for EEO activity under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. when he was subjected to sexual harassment, which created a hostile working environment and led to his suspension, effective April 16, 2003. The request for a hearing shall be consolidated with a hearing request in the remanded case of Nicholas v. Department of Veterans Affairs, EEOC Appeal No. 01A51368. The Hearings Unit should consolidate the two cases of Cooke and Nicholas, and assign the cases to an Administrative Judge other than the one who issued the original decisions in this matter. 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 (K0501) 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. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. RIGHT TO REQUEST COUNSEL (Z1199) 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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat March 23, 2006 __________________ Date ----------------------- [1] Cindy Nicholas has a companion case before the Commission, which has been docketed as Nicholas v. Department of Veterans Affairs, EEOC Appeal No. 01A51368. Some of the facts recounted herein come from documentation in EEOC Appeal No. 01A51368. [2] Cindy Nicholas stated this occurred in September 2002.