0120080154
05-03-2010
Rosario R. Kern, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Rosario R. Kern,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080154
Hearing No. 570-2007-00363X
Agency No. 05-62863-002
DECISION
On October 1, 2007, complainant filed an appeal from the agency's August
28, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging 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(a).
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's (AJ)
issuance of a decision without a hearing was appropriate.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked at the agency's Child Development Center (CDC) in the Morale,
Welfare and Recreation Department, U.S. Naval Station in Rota, Spain.
Complainant's Affidavit (Complainant's Aff.), at 3. Complainant began her
employment with the CDC in 2002 as a Program Assistant (GSE-1702-02/03),
but from 2003 to 2005 she was promoted to Education Aid (GS-1702-03),
then to Education Technician (GS-1702-04), and then to Lead Education
Technician (GS-1702-05).1 Id. During the events in question, the Lead
Education Technician was complainant's first-level supervisor (S1),
the Training and Curriculum Specialist was her second-level supervisor
(S2), and the CDC Program Administrator was her third-level supervisor
(S3). Id. at 4.
On May 11, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of national origin (Spanish),2
sex (female), and reprisal for prior EEO activity3 until Title VII.
The claims accepted for investigation by the agency were the following:
1. Complainant was not selected for the following CDC
positions:
a. On September 26, 2002, she was not selected for a Child Development
Program Assistant position, GS-1702-02/03/04, from Merit Promotion
Certificate No. LR-30-02 (two selections made);
b. On July 27, 2003, she was not selected for an Education
Technician
position, GS-1704-04, from Merit Staffing Certificate No. LR-36-03
(two selections made); and
c. On June 7, 2004, she was not selected for a Lead
Education Technician
position, GS-1702-05, from Merit Staffing
Certificate No. LR-26-04.
2. Complainant was subjected to continuous harassment by her
supervisors and coworkers. Specifically, she cited the following
incidents in support of her harassment claim:
a. During monthly trainings, S2 and S3 assigned seating to
ensure that
Spanish employees would not sit together;
b. On December 17, 2004, she attended the CDC holiday
party and S2 stated to
her, "You know Rosario, [S3] said that you have a big
ass";
c. On December 23, 2004, she requested time out of
the classroom to
complete her lesson and S1 denied the request;
d. On January 12, 2005, she was denied the
opportunity by S2 to receive
CPR instructor training even though three other employees received
training;
e. On January 27, 2005, she did not receive an
achievement certificate from
S2 for volunteering and providing training to the Spanish
cooks on classroom
dining;
f. On February 1 and 3, 2005, she was informed by
S1 that she was
prohibited from speaking Spanish;
g. On February 4, 2005, during a private conversation
with another
caregiver, she was interrupted by the
Administrative Assistant (AA) and
told not to speak Spanish;
h. On February 9, 2005, S2 came into her classroom
and touched her hair
and rubbed her back;
i. On February 9, 2005: (i) a
cabinet door fell on her foot, and S2 called
her husband to take her to the hospital instead of
providing her with a ride;
(ii) the injury compensation forms that were provided
to her were in Spanish,
not English; and (iii) when she was leaving the CDC,
S2 said, "It's a good thing
that it didn't land on your head"; and
j. On February 15, 2005, she was interrupted by AA
during a conversation
she was having with two other caregivers, and AA said, "Rosario, you
don't want to start another complaint issue."
On September 8, 2005, the agency issued a final decision dismissing
complainant's complaint for mootness and for failure to state a claim.
Agency's September 8, 2005 Final Decision, at 3-4. Complainant
subsequently appealed the agency's decision to the Commission and the
Commission remanded the complaint to the agency for further processing.
Kern v. Dept. of the Navy, EEOC Appeal No. 01A60426 (July 18, 2006).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an AJ. Complainant timely requested a hearing. The AJ
assigned to the case determined sua sponte that the complaint did not
warrant a hearing and, on May 9, 2007, issued a Notice of Intent to Issue
Decision Without a Hearing and requested that the parties submit their
responses. Administrative Judge's July 18, 2007 Decision (AJ Decision),
at 1. After receiving responses from both parties and over complainant's
objections, the AJ issued a decision without a hearing on July 18, 2007,
in favor of the agency. Id. at 1, 6. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged. Agency's August 28,
2007 Final Order, at 2.
In his decision, the AJ found that the investigative record had
been adequately developed, there were no genuine issues of material
fact, and he had no need to make findings of fact or credibility.
AJ Decision, at 2. Regarding complainant's non-selection claim,
the AJ found that complainant failed to adequately rebut the agency's
articulated, non-discriminatory reasons for its actions by showing that
her qualifications were clearly or significantly superior to those
of the selectees. Id. at 4-5. In the absence of such a showing,
the AJ noted, he was unwilling to substitute his judgment for that
of the selecting official in this case. Id. Regarding complainant's
harassment claim, the AJ found that complainant failed to demonstrate
that the agency's actions complained of were sufficiently severe and/or
pervasive to adversely affect a term or condition of her employment.
Id. at 5. In addition, the AJ found that the agency's Motion to Decide
Complaint on the Existing Record correctly stated the material facts
and applicable standards. Id. Finally, the AJ noted that conclusory
assertions that the agency's intentions and motivations are questionable
are not enough to withstand a summary judgment motion, and found that
complainant presented no direct evidence of discriminatory animus in
support of her allegations. Id. at 5-6.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. In response, the
agency states that complainant has raised no new issues or material
facts for consideration in her appeal and requests that we affirm the
AJ's decision. Agency's Appeal Brief, at 2.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)]
will be reviewed de novo"). This essentially means that we should
look at this case with fresh eyes. In other words, we are free to
accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
AJ's Issuance of a Decision Without a Hearing
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
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). "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). 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 110,
Chapter 6, p. 6-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(d)
and (e). After a careful review of the record, the Commission finds
that the AJ's issuance of a decision without a hearing was improper.
It is fundamental that a decision without a hearing may be rendered only
where there is no genuine issue of material fact between the parties.
Here, complainant's evidence directly contradicts the agency's evidence
on a number of important points, and the agency's evidence sometimes
contradicts itself. For example, the agency sought to justify
complainant's non-selection by adducing S3's affidavit testimony
that complainant was less qualified than the selectees. When asked
why complainant was not selected for the positions, S3 attested, "We
consider both the interview and the employee performance, during this
time period her performance was less than stellar." ROI, Exh. F-3, at 7.
In addition, S3 attested that she "advised her [complainant] that her
work performance needed improvement ... This was in February 2002."
Id. at 8. In response, complainant stated, "My evaluations do not
indicate that my performance was less than stellar, neither does [sic]
the notes and comment cards from the parents." Complainant's Rebuttal,
at 2. We note that there is nothing in the record to indicate that
complainant's work performance during the period of her non-selections
was sub-par. In addition, contrary to S3's statement about her February
2002 conversation with complainant about work performance, the record
reflects that complainant was not employed at the CDC until May 2002.
ROI, at 261-62. Further, S3 attested that interviews were used as a
screening / rating factor for the positions, but also attested that
"no record was found regarding these dates" in reference to when she
specifically interviewed complainant. ROI, Exh. F-3, at 6-7. The AJ
ignored this conflict in testimony, the obvious factual dispute it
creates, and the subsequent need to make a credibility determination.
In addition, the Commission determines that the record was inadequately
developed. There are discrepancies in the record regarding the positions
for which complainant was non-selected. Although the agency investigated
complainant's non-selections based on the positions cited in its claims
accepted for investigation (LR-30-02, LR-36-03, LR-26-04), complainant
attested that LR-36-03 was incorrect and that the correct position was
LR-43-04, Lead Education Technician, GS-1702-05. Complainant's Aff.,
at 6-7. Absent from the record is selection documentation regarding
LR-43-04. Further, complainant's affidavit and S3's affidavit reflect
differences in the selection dates and the selectees for LR-30-02.
Complainant attested that the selection dates were May 9, 2002, February
10, 2003, March 28, 2003 and that the selectees were AK, CT, and SM.
Id. at 7-8, 10. S3 attested that the selection date was September 26,
2002 and that the selectees were CT and MS. ROI, Exh. F-3, at 4-5.
Finally, we note that although the record contains vacancy announcements,
selectees' applications, and complainant's applications, there are no
notes or scoring sheets from S3 concerning her selection decisions.
In summary, there are genuine issues of material fact in dispute and the
record was inadequately developed. Therefore, judgment as a matter of
law for the agency should not have been granted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission VACATES
the agency's final order adopting the AJ's decision without a hearing
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 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 3, 2010
Date
1 Complainant attested that she was automatically promoted to the
Education Aid and Education Technician positions when she completed
the requisite training modules. Complainant's Rebuttal to Management's
Affidavits (Complainant's Rebuttal), at 2. Complainant was promoted,
by another selecting official, to Lead Education Technician under Merit
Staffing Certificate Announcement No. LR-26-05. Report of Investigation
(ROI), at 348.
2 Complainant is a U.S. citizen who identifies her national origin
as Spanish. ROI, at Exh. F-11, Complainant's Aff., at 4. At the CDC,
there are U.S. employees of non-Spanish national origin, U.S. employees
of Spanish national origin, and Spanish employees. ROI, at Exh. F-11.
3 Complainant's prior EEO activity refers to her initial contact with
the Human Resources Office on or about October 4, 2004, regarding the
instant complaint. Complainant's Aff., at 5-6.
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0120080154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080154