07A20058
02-25-2002
William M. Johnson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
William M. Johnson v. Department of the Navy
07A20058
February 25, 2002
.
William M. Johnson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 07A20058
Agency Nos. 97-00168-004; 98-00168-003
Hearing Nos. 120-98-9710X; 100-98-8074X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his 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 Social Worker GS-185-12, at the agency's National Naval
Medical Center, Bethesda, MD. Complainant sought EEO counseling and
subsequently filed two formal complaints on June 3, 1997 and October
27, 1997<1>, alleging that he was discriminated against on the bases
of race (African-American), color (Black), and reprisal for prior EEO
activity when:
(1) his second level supervisor spoke to him in a hostile, sharp, loud
voice on two occasions on March 14, 1997;
(2) his supervisor questioned him about the status of his disability
retirement status;
(3) his supervisor told him he was no good to the Social Work Department
and recommended he take leave until he retired;
(4) his supervisor told him he would receive a lower performance rating;
(5) he was required to bring medical documentation for taking sick leave
at the time of a retreat.
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 issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant failed to establish discrimination by
a preponderance of the evidence, noting that there was no evidence of
adverse treatment as a result of the complainant's EEO activity, there was
no discipline issued as a result of complainant's non-attendance at the
retreat and that complainant's supervisor exhibited a confrontational and
agitated communication style with others. She further found complainant
failed to proffer a set of facts which tended to show his supervisor's
actions were based on race, color or his EEO activity, that the actions
were sufficiently pervasive or abusive to constitute harassment or that
any harmful action was taken against him in conjunction with the alleged
harassing incidents. Finally, the AJ's decision imposed sanctions in
the form of attorney's fees against the agency for failing to appear
for a pre-hearing conference and for failing to submit a pre-hearing
statement in accordance with her Scheduling Order.
The agency's final action did not implement the AJ's decision requiring
it to pay attorney's fees as a sanction for failing to appear for a
pre-hearing conference The agency appeals the AJ's decision on that
issue. The agency implemented the AJ's decision issuing summary judgment
in its favor. It argued that the complainant did not prove he was
subjected to adverse treatment in retaliation for his protected activity
or that he was subjected to harassment that was severe or pervasive or
that altered his working conditions.
On appeal, complainant contends, among other things, that the AJ
erred by making credibility findings favoring the testimony of the
agency's witnesses and in not holding a hearing to consider contradictory
statements of those witnesses as well as the statement of other witnesses.
He further contends that the AJ incorrectly found he was not subjected
to adverse treatment in the form of discriminatory harassment which was
so severe it caused him to use sick leave, to be hospitalized and to
take an early retirement.
ANALYSIS AND FINDINGS
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 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, 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 largely relied on the
representations of management officials as provided in their statements
to the investigator.
The standard for determining whether harassment is legally actionable
is, generally speaking, the harassment would not have occurred but for
the employee's race, color, sex, national origin, age, disability, or
religion. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment,
complainant must show the existence of four elements: (1) he is a member
of a statutorily protected class; (2) he was subjected to harassment
in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Our review of the record in this case indicates opposing affidavits of
at least two witnesses who corroborated complainant's claim that he
was treated differently than his co-workers in his interactions with
his supervisors. For example, complainant's co-worker, a fellow social
worker, noted in her statement that she observed complainant's supervisor
(R1) speak to him in a loud and demeaning manner during a meeting and that
R1 was always more critical of complainant's work than he was of others.
She noted that R1 also behaved the same way towards an Acting Division
Director who was also African American. She characterized R1's behavior
as creating a hostile atmosphere.
Similarly, the Acting Division Director stated that she observed
a confrontation between complainant and his second line supervisor
(R2) in which R2 was aggravated and annoyed about a situation that she
believed should not have occurred in light of her communications with R2.
Her statements also tended to corroborate complainant's claim that the
incidents were severe when she stated that the exchange had a physical
effect on the complainant who was �holding his head and sweating� and that
she was �gravely concerned with his appearance.� Further suggestive of
the severity of the incidents, was evidence that complainant had to be
hospitalized for his high blood pressure as result of his interactions
with R2 that day. Thus, there was evidence on both sides of the issue
which should have been appropriately weighed during an evidentiary
hearing.
The number of incidents, we note, should not have been limited to
those 4 incidents formally stated in the complaint but should also have
included background evidence proffered by the complainant as well as other
witnesses in their testimony. As stated before, the finder of fact must
consider the totality of the circumstances in determining whether unlawful
harassment occurred. Harris v. Forklift Systems, supra. In addition,
as the agency indicated, complainant has another complaint pending
regarding a series of incidents occurring in 1996, predating the instant
complaints. On remand, the third complaint<2> should be consolidated
with the complaints at issue herein in accordance with our regulations
requiring the consolidation of complaints. 29 C.F.R. �1614.606.
Regarding complainant's claim of reprisal, complainant produced
evidence which when viewed in the light most favorable to him created
an inference of discriminatory reprisal by showing that he engaged in
protected EEO activity, his supervisors (both R1 and R2) were aware of
his protected activity, he received a lower performance evaluation and
less favorable treatment in his communications with his supervisors, and
the protected activity occurred near the time of the alleged incidents.
See Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). Therefore, we find that the AJ erred in concluding
there was not enough evidence to support his claim of reprisal and that
summary judgment for the agency was appropriate. We further find error
in the AJ's conclusion that the complainant was required to demonstrate
he was subjected to an adverse employment action in connection with
his reprisal claim. The Commission's policy prohibits any adverse
treatment that is based on a retaliatory motive and is reasonably
likely to deter the complainant or others from engaging in a protected
activity. Whitmire, supra. With this in mind there was enough evidence
to infer discriminatory animus on the part of the agency's managers such
that the issue should not have been decided based on summary judgment.
It bears repeating 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 6-1; see also
29 C.F.R. �� 1614.109(d) and (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 his 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, there are unresolved
issues which require an assessment as to the credibility of the various
management officials, co-workers, and complainant, himself. Therefore,
judgment as a matter of law for the agency should not have been granted.
Sanctions
The agency argued on appeal that the Commission does not have the
regulatory authority to order sanctions in the form of attorney's fees
other than to a prevailing party. The agency did not contest that it
failed to appear for a prehearing conference as ordered by the AJ or that
it failed to submit its prehearing statement in the time prescribed by
the AJ. 29 C.F.R. �1614.109(d)(3) provides the AJ with broad discretion
in the conduct of hearings and the development of the record and gives
the AJ the authority to issue certain sanctions such as drawing adverse
inferences and taking such other actions as s/he deems appropriate.
See also Stull v. Department of Justice, EEOC Appeal No. 01941582
(June 15, 1995). This includes the authority to require the payment of
attorney's fees and costs as a sanction in appropriate circumstances.
Comer v. Federal Deposit Insurance Corporation, EEOC Request No. 05940649
(June 3, 1996); see also MD 110, Chapter 11-11. Therefore, we find the
AJ's order for sanctions based on the agency's failure to comply with a
Scheduling Order and an order to appear for a pre-hearing conference was
proper and an appropriate exercise of her authority under our regulations.
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 REVERSES
the agency's final action and remands the matter to the appropriate
hearings unit in accordance with this decision and the Order below.
The instant action will be
consolidated with the complainant's third complaint for joint
consideration by the AJ of all of the complainant's claims.
ORDER
1. The agency is hereby Ordered to comply with the AJ's Order requiring
that it pay complainant's attorney's fees as a sanction for failing to
appear for a pre-hearing conference and failing to submit a prehearing
statement in accordance with the AJ's Scheduling Order.
2. The agency shall submit to the Hearings Unit of the Baltimore District
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, 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
February 25, 2002
Date
(1In the agency's brief responding to that part of the AJ's decision it
decided to implement, it noted that complainant had a third complaint
filed November 1996 which was pending Commission review on a petition for
reconsideration. The Commission issued a decision denying reconsideration
on February 19, 1999. Johnson v. Department of the Navy, EEOC Request
No. 05981017.
2Complainant's third complaint was appealed to the Commission based
on the agency's dismissal of two out of five issues of discrimination.
The Commission affirmed the agency's dismissal of the two leaving three
to be investigated.