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.