Beth M. Deyo, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 12, 2001
01990196 (E.E.O.C. Dec. 12, 2001)

01990196

12-12-2001

Beth M. Deyo, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Beth M. Deyo v. Department of the Treasury

01990196

12-12-01

.

Beth M. Deyo,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01990196

Agency Nos. 96-3276

97-3138

Hearing Nos. 160-97-8477X

160-97-8671X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency action

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.

ISSUE PRESENTED

The issue presented herein is whether the EEOC Administrative Judge (AJ)

correctly issued summary judgment in favor of the agency. The AJ found

that complainant failed to establish that she was discriminated against,

as alleged in complaint 1, on the basis of sex (female) when on May 8,

June 6, and June 26, 1996, management took actions creating a hostile

work environment and, as alleged in compliant 2, on the bases of sex

and reprisal (prior EEO activity)<1> when on August 29, 1996, management

asked personal questions resulting in a hostile work environment.

BACKGROUND

The record reveals that during the relevant time, Complainant was employed

as a Criminal Investigator at the agency's facility in Albany, New York.

On May 8, 1996, complainant's supervisor, the Resident Agent-in-Charge

(RAC), informed her that the Assistant Special Agent-in-Charge (ASAC)

made several inquiries about complainant. In particular, the ASAC

allegedly stated that �Its never been the same since women came on the

job;� complainant had been �sleeping� with her informants; and he wanted

information about complainant's status as a single mother, whether her

performance suffered, and about a recent surgery complainant had. Then on

June 6, 1996, the Supervisory Special Agent (SSA)<2> ordered complainant

into his office to discuss her marital status; after hour activities;

dependents; personal life; family life; her two-year old daughter and

how she handled day care; and her recent operation. Complainant also

noted that during the discussion, the SSA referred to her status as a

single mother as �her situation.� The SSA apparently also asked another

Special Agent to point out complainant's daughter to him when he noticed

a group of children from the agency's day care center. On June 26, 1996,

while complainant was on an assignment in Syracuse, New York, the ASAC

paged her inquiring why a two-day investigation was taking three weeks.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint (Complaint 1)

on September 18, 1996, alleging sex-based harassment.

After she contacted the EEO office in connection with Complaint (1),

on August 29, 1996, the RAC informed complainant that the ASAC had

made inquiries about complainant's situation in Albany. He wanted

to know if she had any family, close friends, or boyfriends in the

area. The ASAC also wanted to know the sex of complainant's child.

Believing that this was another incident of harassment, she filed a second

complaint (Complaint (2)) on March 12, 1997. At the conclusion of the

investigations, complainant was provided a copy of each investigative

file and requested a hearing before the AJ. The AJ issued a decision

without a hearing finding no discrimination.

As to complaint 1, the AJ noted that the agency asked questions about

complainant's time after work concerning allegations that she was not

working her overtime and was unavailable for duty agent assignments.

Apparently the Special Agent-in-Charge (SAC) referred the allegations

to Internal Affairs (IA) for investigation, however, IA declined to

investigate the matter. The SAC still asked the SSA to investigate

the situation. The AJ then concluded that complainant failed to

establish a claim of sex-based harassment in that, assuming complainant's

allegations are true, the conduct did not rise to the level of a hostile

work environment. As to complaint 2, the AJ again determined that the

incident alleged did not rise to the level of harassment. Accordingly,

the AJ issued summary judgment finding no discrimination.

The agency's final action implemented the AJ's decision. On appeal,

complainant contends, among other things, that the AJ incorrectly

determined that there were no genuine issues of material fact.

Specifically, complainant contends that the AJ relied on statements

by management officials which were contradicted within the record.

Accordingly, complainant requests that the Commission reverse the AJ's

determination. The agency stands on the record and requests that we

affirm its final action implementing the AJ's decision.

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.

As an initial matter, we find that the AJ improperly reviewed each

complaint separately. Clearly, complainant claims that all the

alleged incidents raised in Complaint 1 and Complaint 2 constituted

sex-based harassment. The AJ should have viewed all the incidents

raised together rather than in a piecemeal manner in determining

whether or not she established a claim of a hostile work environment.

See Meaney v. Department of the Treasury, EEOC Request No. 05940169

(November 3, 1994).

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 reviewed the record and relied on

the representations of the ASAC, the SSA, and other agency officials

who denied making the remarks alleged by complainant. Accordingly, we

find that the AJ improperly made credibility determinations in issuing

summary judgment in favor of the agency. Furthermore, it appears that

the record has not been developed as to why the ASAC chose to investigate

complainant's overtime usage when the IA's office denied his request to

conduct such an investigation.

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). As noted above, complainant alleged that

agency officials questioned her and pried into her personal life based

on her sex. The agency officials claim that they did not make any such

statements. In this situation, unresolved facts exist which require an

assessment as to the credibility of the various management officials,

co-workers, and complainant, herself. Therefore, judgment as a matter

of law for the agency should not have been granted.

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 agency in accordance

with this decision and the ORDER below.

ORDER

The agency shall submit to the Hearings Unit of the EEOC's New York

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

__12-12-01________________

Date

1 Complainant alleged unlawful retaliation

based on her filing of complaint 1 alleging discrimination in violation

of Title VII.

2 The record indicates that the SSA is the Group Supervisor of an

Investigative Group in Buffalo. He is not in complainant's direct

chain-of-command but still within the Special-Agent-In-Charge

organization.