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.