01A00633_r
09-19-2002
Brenda E. Shawe, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Brenda E. Shawe v. Department of the Army
01A00633
September 19, 2002
.
Brenda E. Shawe,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A00633
Agency Nos. BEFLFO9609G0180, BEFLFO9807I0190
Hearing No. 100-99-7861X
DECISION
Complainant appealed to this Commission from the agency's final action
to implement the findings of an EEOC Administrative Judge (AJ). The AJ
found, without a hearing, that complainant failed to establish unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., or the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following
reasons, the Commission reverses the agency's final order.
The issues on appeal originate from two separate EEO complaints.
The agency consolidated the complaints, Agency Numbers BEFLFO9609G0180
(complaint 1) and BEFLFO9807I0190 (complaint 2), for a single
investigation.<1> Complaint 1 alleged harm only on the basis of age when:
(1) Complainant's supervisor subjected complainant to verbal abuse with
frequent loud remarks about her performance in front of her coworkers.
Complaint (2) also raised the bases of race (Caucasian), sex (female),
color (white), disability (stress), and reprisal for prior EEO activity
when:
On May 12, 1998, the supervisor physically assaulted complainant during
a meeting.
Complainant described claim (1) as her supervisor openly accusing her of
not knowing what she was doing, asking complainant about assignments that
she completed long ago, and, on an almost daily basis, loudly criticizing
complainant's work and yelling at her in front of other employees. The May
12, 1998 altercation stemmed from accusations that complainant was taping
a conversation with her supervisor. Complainant contends that while in
a meeting concerning her work, the supervisor lunged at complainant,
and she dodged. According to complainant, she attempted to leave the
area, but the supervisor momentarily pinned her to the door, until she
could break-free. She ran downstairs to get away from the supervisor
and take prescribed stress medication. The supervisor followed, yelling
for complainant to halt, and for various coworkers to stop complainant.
Complainant went to her car, and the supervisor stood at her car door,
peering inside. The description of events for claim (2) varies widely,
depending on the witness.<2>
In his summary judgment decision, the AJ found that claim (1), when taken
in a light most favorable to complainant, was not severe or pervasive
enough to establish a claim of harassment. In claim (2), however,
the AJ explained that the single incident of �unwanted touching,�
as described by complainant, could constitute actionable harassment.
Noting that complainant presented no evidence of similarly situated
employees receiving more favorable treatment, the AJ found no evidence
of discrimination on the bases of race, color, sex, disability.
The AJ performed a separate analysis for claim (2) on the basis of
reprisal. He assumed a prima facie case of reprisal discrimination, but
found a legitimate, nondiscriminatory reason for the supervisor's actions.
He noted that complainant failed to establish pretext, reasoning, �I
cannot conclude that the mere fact that [the supervisor] wanted proof of
the taping, which one reasonably could consider to be an insubordinate
act, meant that [the supervisor] was retaliating against complainant.�
Decision of Administrative Judge, at 5.
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 United States 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 Corp. 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 be resolved only by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has
been adequately developed for summary disposition.
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, the Commission finds that the
AJ erred in finding no genuine issue of material fact in this case.
With regard to claim (2), the AJ did not account for all evidence when
discovering a non-discriminatory reason for the incident. The record
contains evidence of the supervisor's illegitimate motive in the
altercation:
Supervisor: And the reasoning why I was following her [was] because I
believe very much . . . she was recording me with a tape recorder and
I figured that if [complainant] � if my superiors had found the tape
recorder, the harassments to me would of [sic] quit. . . . .
Investigator: What do you mean by harassments to you?
Supervisor: With her going to EEO on me, her saying that I am physically
assaulting her[;] I haven't did [sic] any of those things.
Fact Finding Conference, at 120-121. Significant disagreement also exists
over the nature and substance of the altercation alleged in claim (2).
The relative credibility of the various witnesses must be weighed.
Harassment is actionable if it is sufficiently severe or pervasive
to alter the conditions of the complainant's employment. See Harris
v. Forklift Systems, 510 U.S. 17, 21 (1993) The Court explained that
an "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive� and the complainant
subjectively perceives it as such. Id. at 21-22. The AJ's decision
to weigh the severity and pervasiveness of claims (1) and (2) without
reference to one another also constitutes error. Id. (fact-finder
must look at totality of circumstances in determining whether unlawful
harassment occurred). The AJ must evaluate the credibility of witnesses
to determine exactly what occurred, and then find whether the matters,
when taken together, created a hostile work environment for complainant.
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the agency's final action is REVERSED, and
the claims are REMANDED to the agency in accordance with this decision
and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Washington Field
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 (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; 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; 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 (M0701)
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 (R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 19, 2002
__________________
Date
1Initially, the agency dismissed Agency
No. BEFLFO9609G0180. On appeal, the Commission redefined the complaint,
and reversed the agency's dismissal. See Shawe v. Department of the Army,
EEOC Appeal No. 01976267 (November 16, 1998). The claim, as redefined,
was accepted for investigation.
2The supervisor denies any physical contact, and believes complainant
hid the recording device in her car. Complainant denies having any
device, and contends she merely retrieved medication from the car.
Uninvolved witnesses also gave very disparate accounts of the incident.