Margaret Dangerfield, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 21, 2004
01A34371 (E.E.O.C. Dec. 21, 2004)

01A34371

12-21-2004

Margaret Dangerfield, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Margaret Dangerfield v. Department of the Navy

01A34371

December 21, 2004

.

Margaret Dangerfield,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A34371

Agency No. DON-02-31935-014

Hearing No. 120-2002-01516X

DECISION

Complainant timely initiated an appeal from a final agency order

concerning her complaint of 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. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission reverses

and remands the agency's final order.

The record reveals that during the relevant time, complainant was

employed as a Personnel Actions Clerk at the agency's Military Sealift

Command facility, in Virginia Beach, Virginia. Complainant sought EEO

counseling and subsequently filed a formal complaint on November 5, 2001,

alleging that she was discriminated against on the basis of reprisal<1>

for prior EEO activity when:

(1) she was harassed by management officials; and

she was not selected for the position of Marine Placement Specialist

GS-0301-5/7/9 in October 2001.

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 Agency filed a motion for a Decision

Without a Hearing and complainant responded.<2> AJ issued a decision

without a hearing finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of discrimination, noting that, regarding the nonselection claim, the

selecting officials were unaware of complainant's prior EEO activity.

Regarding harassment, the AJ found that the actions complained of did

not rise to the level of discriminatory harassment. The agency's final

action implemented the AJ's decision.

On appeal, complainant contends, among other things, that the AJ

erred in finding no material issue of fact. Specifically, complainant

points out that the claims of complainant's second-level supervisor

(RMO2) that she treated complainant the same as everyone else are

contradicted by complainant's first level supervisor (RMO1) who averred

that RMO 2 directed her to take actions against complainant, or ask for

additional documentation for her sick leave requests, when she (RMO1)

would not otherwise have taken such actions or requested such additional

documentation. Complainant further points out that a coworker (CW) who

sat across from her observed some of RMO2's treatment of complainant

and further averred that she believed that RMO2 used RMO1 �to get at�

complainant.

The agency argues on appeal that the time-period between complainant's

prior EEO activity and the actions complained of is too long to permit

an inference of a nexus. The agency notes that complainant filed an

informal complainant against RMO2 in January 2001, while the alleged

discriminatory acts did not occur until September to November 2001.

The agency next argues that the actions of RMO2 were legitimate.

Finally the agency argues that the AJ correctly found that the actions

complained of did not rise to the level of harassment.

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, 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, we find that the AJ erred when she

concluded that there was no genuine issue of material fact in this case.

In finding no discrimination, the AJ relied on the representations of

RMO2 who denied treating complainant differently. See Agency Report

of Investigation (ROI), pp. 3-14. Such a contention, however, is

contradicted not just by complainant but by RMO1, who mentioned numerous

instances where RMO2 singled complainant out for different treatment.

Specifically RMO1 averred that she had been satisfied with the initial

medical documentation submitted by complainant in support of her sick

leave request and that she had never seen RMO2 request additional medical

documentation from others in support of their requests for sick leave, as

RMO2 did of complainant. See Deposition of RMO1, pp 5-6, 8-10. RMO1 next

averred that RMO2 �always wanted me to let her know where [complainant]

was,� id., p. 7, but made no such inquiries of other employees, that RMO2

�treated [complainant] differently in scrutinizing her work,� id. p.12,

and that while she herself did not feel complainant was a problem employee

or had problems with her performance, id., p. 26, she was directed by

RMO2 to meet with complainant to discuss performance problems. Id.

RMO1 said that she felt such treatment of complainant was unfair. Id.

In addition, RMO1 averred that RMO2 instructed her to issue a letter

of caution to complainant but that RMO1 disagreed with it, id. p. 34,

and that others who were otherwise similarly situated with complainant

were not issued letters of caution. Id. p.35. RMO1 next averred that

she spoke to RMO2 because she felt that the workload RMO2 had assigned

complainant was too heavy, but that RMO2 simply said �she can handle

it.� Id., p. 39. Additionally, RMO1 said that she did not know why

RMO2 denied complainant's overtime requests, that there was �plenty of

overtime available,� id., p.42, that she knew of no one else who was

denied overtime, and that RMO2's denial of overtime did not make sense.

Id., p. 43. Finally RMO1 said that it was �a possibility� that RMO2

was retaliating against complainant because of her prior EEO activity.

Id. p. 40. Given these statements by a management official, we find

that a material issue of fact exists regarding whether RMO2 treated

complainant disparately.

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 23, 1995).

In summary, the record reveals conflicting evidence and unresolved issues

regarding statements made by various management officials, co-workers,

and complainant herself. Therefore, judgment as a matter of law for

the agency should not have been granted.

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 reverses 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 appropriate EEOC field

office the request for a hearing on complainant's allegation of reprisal

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, 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 (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

December 21, 2004

__________________

Date

MEMORANDUM

TO: Baltimore District Office

Hearings Unit

THROUGH: James L. Lee

Director, Baltimore District Office

FROM: Carlton M. Hadden, Director

Office of Federal Operations

RE: Margaret Dangerfield v. Department of the Navy,

EEOC Appeal No. 01A34371

Enclosed is a decision requiring that the referenced complaint be

assigned to an Administrative Judge for the scheduling of a hearing.

We request that the Administrative Judge notify the Compliance Division

of the Office of Federal Operations after a decision has been issued.

If you have any questions regarding the further processing of this

complaint, please contact Robert Barnhart, Director of Compliance and

Control at (202) 663-4525.1 The AJ noted that complainant had dropped

race, color, and sex as bases for discrimination. On appeal, complainant

makes no objection to the AJ's finding in this regard. Accordingly,

we find that complainant's sole basis of her claim of discrimination

is reprisal.

2The nature of complainant's response is not clear from the record.