AJ improperly made a credibility determination in favor of the Agency witnesses. Has this happened in your FAD? Now you have a case to site this similarity for your appeal.
If Complainant’s allegations are found to be true, the Agency may
be liable for the harassment as they knew or should have known of
the conduct but failed to take corrective action. In resolving this
dispute, the AJ improperly made a credibility determination in favor of
the Agency witnesses that management was not aware of the noose despite
OAA acknowledging that the rope was sitting on her desk for several weeks
prior to Complainant raising this issue with the EEO office on February
27, 2009. AJ Decision at 8. However, at the summary judgment stage, it
is Complainant’s evidence that must be believed and all justifiable
inferences drawn in his favor.
The hearing process is intended to be an extension of the investigative
process, and is 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). Because of unresolved issues regarding
the alleged statement by MMS “you don’t want me to hang your ass”
on February 26, 2009, as well as unresolved issues regarding the date on
which management officials became aware of the noose on OAA’s desk,
which require an assessment of the credibility of the parties, we find
that a decision without a hearing was inappropriate under 29 C.F.R. §
1614.109(g). Finally, we note that given these unresolved issues the
AJ should revisit the question of whether all of the incidents alleged,
taken together, establish that Complainant was subjected to a hostile
work environment.
Referencing case:
Anthony W. Jackson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111588
Hearing No. 541-2010-00019X
Agency No. 09FEB00719
DECISION
