01A14896
06-20-2002
Willie J. Mincey, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Willie J. Mincey v. Department of the Air Force
01A14896
June 20, 2002
.
Willie J. Mincey,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14896
Agency No. AR000010558
Hearing No. 370-98-2521X
DECISION
Complainant timely initiated an appeal from a final agency action
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. Complainant alleges he was discriminated against
on the basis of race (Black) when he was not selected for an assignment
assisting the Software Engineering Branch.
For the following reasons, we VACATE and REMAND the agency's final order.
QUESTION PRESENTED
Whether the Administrative Judge's decision granting summary judgment
to the agency was proper.
BACKGROUND
The record reveals that during the relevant time, Complainant was employed
as a Production Controller at the agency's McClellan Air Force Base in
Sacramento, California. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on July 29, 1997. 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 abandoned his claim of disparate
treatment and instead alleged disparate impact in the agency's
implementation of its decisions to reassign personnel. Based on this, the
AJ determined that complainant failed to identify a neutral policy which
caused a disparate impact on African Americans. She further concluded
that the assignment of complainant's co-worker (E1) to assist the Software
Engineering Branch did not result in an enhancement of E1's career as
complainant alleged and there was no factual basis for complainant's
claim. The record did not indicate that E1's additional website duties
were beneficial to her career or that complainant suffered any deprivation
or harm as result of E1's assignment, according to the AJ. In addition,
the AJ concluded that complainant failed to offer any evidence that the
agency's reasons for choosing E1 for the assignment was a pretext for
discrimination. That is, the agency stated it gave E1 the assignment
because her original assignments had been transferred to another section
and E1 was physically located near the unit where she was assigned.
The agency's final action implemented the AJ's decision finding no
discrimination.
On appeal, complainant contends that he too had a reduced workload as
a result of the effects of the closure of parts of the base as did E1.
He also questioned the credibility of the agency's statement that E1
lost all of her original assignments because of a memo issued indicating
that E1 would still be working with the employee who was given some of
her original assignments in addition to working her new assignments.
The agency argues that the AJ's decision is supported by the evidence in
the record and should be upheld. Specifically, the agency argues that
the additional duties E1 was given were fairly de minimus because they
consisted of updating the office web page for 2 hours per day or less.
In addition, the agency argues that complainant provided no evidence
to support his contention that other Caucasian employees who had been
reassigned, were given assignments based on discrimination. The AJ's
conclusion that these decisions were made ad hoc based on the relative
workloads and location of his schedulers was not disputed by anything
other than complainant's speculative statements.
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.
The record indicated that the AJ solicited additional affidavits from
the agency and the complainant outside of those contained in the Report
of Investigation and improperly conducted a �trial by affidavit�.
In particular, the AJ requested additional written testimony on the
role of complainant's supervisor in reassigning E1, as well as other
employees complainant alleged were given preferential assignments.
She requested S1 to state why he did not give complainant the assignments
in question in light of his statement that his workload was also reduced
also inviting complainant to file a responsive affidavit on the issue.
We conclude that the parties responses to the AJ's questions were subject
to credibility findings which were more appropriately addressed in an
evidentiary hearing.
In addition to this, the record indicates a question of fact whether
the agency's legitimate non-discriminatory reasons were credible or
were a pretext for discrimination. For instance, the agency claimed
that the reason E1 was given the assignment to work with the Software
Engineering Branch was that she did not have any assignments left,
yet, S1's statement indicated that only 2 of her assignments had been
eliminated due to base closure activities. He further indicated that 3 of
her assignments were given to another employee; E2, even though S1 had
stated that he did not want to affect the workload of other employees.
Consequently, the AJ should have examined the credibility of S1 on the
issue of his selection of E1 for the new assignments.
The AJ concluded that the assignments given to E1 did not result in any
apparent benefit to her career but there was at least a question of fact
in light of evidence that E1 would be working with a newly established
unit and that she was given additional duties outside of her position
description. S1 and the supervisory Electronic Technician (S2) both
stated that E1 had only minimal additional duties but such testimony
should have been the subject of cross-examination and should not have
been accepted at face value.
Finally, the agency did not deny complainant's contention that other
Caucasian employees had been given assignments which ultimately resulted
in promotions or considerations for positions in other units. Such facts
raise the question how others achieved their promotional opportunities
in this office and whether it was applied in a non-discriminatory manner.
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(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 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). Therefore, based on the record
before us, we conclude that judgment as a matter of law for the agency
should not have been granted.
After a full 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 agency in accordance with this
decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of San Francisco 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
June 20, 2002
Date