0120112380
03-24-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120112380
Hearing No. 570-2009-00751X
Agency No. BLM-08-0489
DECISION
JURISDICTION
The Commission accepts, pursuant to 29 C.F.R. � 1614.405, Complainant's appeal from the Agency's March 2, 2011 decision concerning his 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 Agency adopted the decision of the EEOC Administrative Judge (AJ) which found no discrimination in a grant of summary judgment. We VACATE and REMAND for hearing.
BACKGROUND
Complainant, a GS-15, began working for the Agency in March 2005, in the Office of the Secretary, Bureau of Land Management (BLM). In April 2008, Complainant began working as a grade GS-15 Special Assistant in the BLM's Information Resources Management (IRM) Directorate. His first level supervisor was the Deputy Assistant Director (DAD) for IRM and his second level supervisor was the Assistant Director, IRM (ADIRM).
In his complaint, dated December 16, 2008, Complainant alleged that the Agency subjected him to discrimination based on race (Black/African American)1, sex (male), color (light brown), and reprisal (opposition prohibited personnel practices) when:
1. From May 2008 through September 2008, Complainant was continually subjected to a hostile work environment by the Assistant Director for Information Resource Management Directorate, which included yelling, pointing fingers, and belittling comments.
2. On August 4, 2008, the Assistant Director for Information Resource Management Directorate removed Complainant as the lead for hiring activities.
3. On September 19, 2008, Complainant was denied an opportunity for an award by the Assistant Director for Information Resource Management Directorate and the Deputy Assistant Director for WO500.
4. On October 27, 2008, Complainant was denied the opportunity to serve as Acting Assistant Director for Information Resource Management Directorate and Deputy Assistant Director.
5. On October 27, 2008, Complainant was excluded from team and staff meetings.
6. On December 2, 2008, the Deputy Assistant Director gave Complainant an employee performance rating of "fully successful."
After completion of the Report of Investigation (ROI), Complainant requested a hearing. Over the objection of Complainant, the AJ granted summary judgment in favor of the Agency.
Regarding Complainant's claim of a hostile work environment (claim 1), the AJ concluded that Complainant was not subjected to a discriminatorily hostile environment.
Addressing claim 2, the AJ found no evidence that the removal of Complainant's hiring duties was for discriminatory reasons and identified the evidence relied upon. The AJ noted Complainant's claim that he was removed from his hiring duties because the ADIRM told him that he should not hire African Americans. The AJ found that Complainant's recommendation to hire African Americans was approved by the ADIRM.
Concerning claim 3, the AJ determined that while Complainant disagreed with the rationale for giving the three employee awards, he produced no evidence, other than assertions, that the DAD and the ADIRM, who decided who would be award recipients, were motivated by discrimination in making their selections.
With respect to claim 4, the AJ determined that Complainant was not on the rotation list for the period from November 1, 2008 to September 30, 2009, because he was no longer a member of the management team. Because Complainant was no longer on the management team, he was not required to attend management meetings.
Regarding claim 5, the AJ found that Complainant's contention that he was not rated exceptional or superior as a result of discriminatory reasons, without more, did not create a genuine issue of fact that the rating was motivated by discrimination.
CONTENTIONS ON APPEAL
Complainant contends that summary judgment was not appropriate. He asserts that the reasons articulated by the ADIRM and the DAD for their actions raises credibility issues. He asserts that their statements were untruthful and he points to inconsistencies in their statements.
The Agency did not submit any argument on appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when the AJ finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). The 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.
Because this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review of the record, we find that this matter is not appropriate for summary judgment. A genuine issue of material fact exists as to whether the ADIRM directed Complainant not to hire African Americans and when he failed to follow the directive, the Agency engaged in retaliatory actions against him.
In his sworn statement, Complainant reported that in July 2008, he was responsible for hiring in the IRM Directorate. He explained that the ADIRM made statements that he should not hire African Americans and he opposed the directive. Complainant stated that his hiring of two African Americans became his downfall. The ADIRM denied that she had directed Complainant to do so. The ADIRM's denial conflicts with that of Complainant who alleged that after he hired the African Americans, the Agency retaliated against him by engaging in the other actions that are part of this claim. Complainant's statement, if true, could lead a fact finder to conclude that it was retaliatory animus that motivated the Agency's subsequent actions after Complainant failed to follow the hiring directive.
Although the Commission makes no judgment about the veracity of the statements, this is the type of evidence that is appropriate for cross-examination, elaboration, and credibility determinations. 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 EEO-MD-110, Chapter 7, � 1; see also 29 C.F.R. � 1614.109(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. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998); see also Chronisterv. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995).
Regarding the adequacy of the investigation, Complainant's sworn statement discloses that he had identified the Division Chief for IT Security (IT Chief) as having stated to him that the ADIRM had remarked to the IT Chief not to hire an African American woman. In his statement, Complainant noted that the IT Chief told him she would be a witness. The IT Chief was not interviewed by the investigator and there is no explanation in the record why the IT Chief was not interviewed.
Also, the Counselor's Report indicates that while on the elevator the ADIRM told Complainant not to recommend "Blacks" for hire. Complainant believed that he was being asked to discriminate.
The ADIRM denied, without elaboration, that she had made any statement regarding not selecting African Americans. She was not asked about the alleged elevator incident. The Counselor's Report also reflects that Complainant stated that on July 31, 2008, he was chastised by the ADIRM for his, and the DAD's, recommendation to hire two African American applicants. The Counselor's Report also reflects that the ADIRM told Complainant during their meeting that if the candidates were Black, she "did not want to hear it." The investigator did not ask the DAD about this alleged incident on July 31, although Complainant alleged that the DAD was present.
Complainant's complaint itself also discloses that he alleged that he told the Human Resources Manager that the DAD had researched an applicant for a Division Chief position on the internet and printed out the applicant's picture which showed the applicant as an African American. Complainant did not know whether the applicant was hired. The Human Resources Manager was not interviewed and the DAD was not asked about the alleged incident.
Here, conflicting statements require a trier of fact to weigh the statements of the participants, for example, regarding the alleged incidents in May and July 2008 in order to determine what occurred and thereafter make a finding regarding the existence of retaliatory animus. A hearing is therefore warranted. When a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. The evidence of the non-moving party must be believed at the summary judgment stage. Anderson v. Liberty Lobby at 255.
Having decided as we have, the Commission will not address whether Complainant was discriminated against on any other basis so as to avoid piecemeal adjudication of the complaint.
CONCLUSION
After careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's decision and REMANDS the matter to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Washington Field Office, 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 hold a hearing and 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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
March 24, 2015
__________________
Date
1 In a signed complaint, Complainant identified his race as Black/African-American and in his sworn telephonic interview, Complainant identified his race as African American and Caucasian.
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2
0120112380
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013