01a04229wl1snavely
01-05-2001
Linda M. Snavely, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Linda M. Snavely v. Agriculture
01A04229
January 5, 2001
.
Linda M. Snavely,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A04229
Agency No. 951594
DECISION
Complainant timely initiated an appeal from a final agency action
(FAD), concerning her complaint of unlawful employment discrimination
in violation of the the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleges that she was
discriminated against based on age (over 40 years of age) and reprisal
(prior EEO activity) when: she was denied training, denied reassignment,
and subjected to a hostile work environment between November 1993 and
November 1994.
BACKGROUND
The record reveals that during the relevant time, complainant, born
December 7, 1948, was employed as an office automation clerk (temporary
appointment) at the agency's Rural Housing Service (formerly the Farmer's
Home Administration) facility in Ada County, Oklahoma.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on February 28,
1995. At the conclusion of the investigation, complainant was provided
a copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ, acting on the agency's motion for
summary judgment, issued a summary decision, without a hearing, finding
no discrimination.
The AJ concluded that complainant failed to present any evidence
which would give rise to a genuine issue of material fact. The AJ
further found that complainant failed to establish a prima facie case
of discrimination based on age,<2> finding that, absent direct proof of
discrimination, �it is critical for a complainant to demonstrate that
she was similarly situated to persons outside of her protected group,
(i.e. comparators) and that those comparators were treated differently
from the [c]omplainant.� AJ Decision at 4. The AJ thus emphasized that
there was no comparative evidence to support a prima facie case of age
discrimination, because complainant was the only temporary employee in
the Ada County office during the relevant time.
The AJ found, however, that complainant established a prima facie case of
discrimination based on retaliation.<3> The AJ found that complainant
engaged in protected EEO activity when she raised an informal grievance
with the agency's State Director in which she alleged age discrimination,
that the Director, one of the alleged discriminating officials in this
case was aware of the complaint, that complainant was subject to adverse
action when she was not reassigned or selected for a temporary position
of state loan clerk on March 7, 1994, and that the required nexus was
established because of the closeness in time (one year) between the
complainant's informal grievance and the alleged adverse action.
The AJ then concluded that the agency proffered legitimate,
nondiscriminatory reasons for its actions. With respect to reassignment,
the AJ pointed out that there were no other temporary employees in the
Ada County office during the relevant time, and thus that there was
no one with whom complainant could compare herself for the purpose
of establishing that she was discriminated against on the basis of
her age. The AJ further noted that no employees in the Ada County
office were reassigned, that temporary employees were ineligible for
either promotion or reassignment, and that, in any event, there were
no positions to which she could have been reassigned. With respect to
training, the AJ concluded that complainant was not denied training for
which she applied, and there was no evidence that complainant was left
out of training made available to others without application. Finally,
the AJ found that while complainant was not selected for a state loan
clerk position for which the State Director was the selecting official,
there was no evidence from which to infer that the decision was based
upon either the complainant's age or her prior EEO activity.
The AJ then concluded that the agency did not discriminate against
complainant. The agency's final action adopted the AJ's decision.
On appeal, complainant questions the credibility of the agency's State
Director, complainant's third-line supervisor, stationed in Stillwater,
OK. Specifically, complainant points out that the state director stated
in his affidavit that he was not aware of any prior EEO activity by
complainant. Significantly, complainant emphasizes that the agency in
its brief in support of summary judgement acknowledged that the state
director was aware of complainant's prior EEO activity.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision.
FINDINGS AND ANALYSIS
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. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The Supreme Court has stated that summary judgment is appropriate where
the judge determines that, given applicable substantive law, no genuine
issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Only a dispute over facts that are truly material
to the outcome of the case should preclude summary judgment. Anderson,
477 U.S. at 248 (only disputes over facts that might affect the outcome
of the suit under the governing law, and not irrelevant or unnecessary
disputes, will preclude the entry of summary judgment). An issue is
"genuine" if the evidence is such that a reasonable fact-finder could
find in favor of the non-moving party. Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). In the context of an administrative
proceeding under Title VII, summary judgment is appropriate if, after
adequate investigation, complainant has failed to establish the essential
elements of his or her case. Spangle v. Valley Forge Sewer Authority,
839 F.2d 171, 173 (3d Cir. 1988). In determining whether to grant
summary judgment, the judge's function is not to weigh the evidence
and render a determination as to the truth of the matter, but only to
determine whether there exists a genuine factual dispute. Anderson,
477 U.S. at 248-49. The Commission will apply a de novo standard of
review when it reviews an AJ's decision to issue a decision without a
hearing pursuant to 29 C.F.R. � 1614.109(g). See EEOC MD-110 at 9-16.
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 to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(c) and (d). �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 23, 1995).
Significantly, with respect to the reprisal claim, the AJ found that
complainant had made a prima facie case of discrimination. To this
extent, a reasonable fact-finder could find in favor of complainant, the
non-moving party. Accordingly, given that complainant has established
the essential elements of her reprisal claim, we conclude that summary
judgment against complainant would be inappropriate, since complainant
has also sufficiently established the State Director's credibility as
an issue in this case. The State Director's credibility is important
in assessing whether reprisal discrimination was the reason for the
agency's actions and whether any of the agency's proferred reasons for
its actions were pretextual. Indeed, the State Director testified in
his affidavit that he was not aware of complainant being discriminated
against in her working conditions at the Ada county office in 1993-94,
that he was generally aware of the work environment there, that nothing
inappropriate was happening there to his knowledge, and that he didn't
believe the complainant was treated any differently than any other
temporary employee. The state director was also the selecting official
for at least one position complainant applied for. Thus, it is important
to note that 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 also 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).
In addition, the AJ stresses greatly the importance of comparators in
making a case of age discrimination. However, we emphasize that the
Commission in its Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., [116 S.Ct. 1307 (1996)] (September 18, 1996) has
indicated that it is the Commission's view that the characteristics
of the comparator are not a necessary element of the prima facie case
under the ADEA. Id. at 4. The Guidance further noted with approval
that, in a post-O'Connor decision under Title Vll, the Court of
Appeals for the Seventh Circuit held that a plaintiff alleging racial
discrimination in discharge need not show that her replacement was of
a different race. Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th
Cir.) (1996). Id. at 4 n.4. Certainly, in establishing a prima facie
case of discrimination, complainant may show that she is a member of
a protected group and that she was treated less favorably than other
similarly situated employees outside her protected group. See Potter
v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975).
However, complainant may also set forth evidence of other acts from which,
if not otherwise explained, an inference of discrimination can be drawn.
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973); Furnco
Construction Corp. v. Waters, 438 U.S. 537, 576 (1978).
Accordingly, 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, involving the ADEA allegations in this case. Complainant, in
her complaint, recounted numerous and detailed incidents in support
of her claims. For example, she asserts that she applied for at least
eight positions, for which she was qualified for, within the agency,<4>
that personnel at the agency's offices were extremely cool towards her
and made no effort to help her, that the working conditions in the Ada
County office were �deplorable,� that she was allowed to go to only
one training meeting although all other employees were allowed to go,
and that there was no training available to her at the office. In the
Commission's view, material facts are still in dispute and the credibility
of witnesses, including the State Director's and complainant's, are
still subject to examination and cross-examination.
CONCLUSION
Therefore, 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 Commission VACATES
the agency's final action and REMANDS the matter to the Hearings Unit
of the appropriate EEOC field office for a hearing in accordance with
this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC Dallas
District office for scheduling of a hearing in an expeditious manner.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
January 5, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 In general, claims alleging disparate treatment are examined under the
tripartite analysis enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th Cir. 1981);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue).
A complainant must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination, i.e., that a prohibited reason was
a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
3The Commission has set forth the criteria for reprisal cases, as
follows:
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link . . . The causal connection may be shown by evidence that
the adverse action followed the protected activity within such a period
of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted). "Generally, the Commission has held that
nexus may be established if events occurred within one year of each
other." Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996).
4 Both the complainant and the agency appear to agree that complainant's
desire for reassignment includes her applications for vacant positions,
which could be subject to competitive selection.