0120080253
09-25-2008
Dellah S. Walker, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Dellah S. Walker,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120080253
Agency No. FSIS-2005-01266
Hearing No. 560-2006-00195X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 15, 2007 final decision concerning her
equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant worked as a Food Inspector for the
Food Safety and Inspection Service, stationed at Farmland National Beef,
in Dodge City, Kansas. In her formal complaint, complainant claimed that
she was the victim of unlawful employment discrimination in reprisal for
prior protected activity when (a) she received a fully satisfactory
(FS) rating; (b) her work was scrutinized, and her supervisor (SR)
raised his voice; and (c) SR inquired about her EEO activity.1
Following an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On August 27, 2007, the AJ held a hearing
and issued a decision, finding that the agency did not discriminate
against complainant as to claims (a) and (b) and that the agency
discriminated against her as to claim (c). As a remedy for claim (c),
the AJ ordered that the agency consider disciplinary action against S1,
that S1 receive EEO training concentrating on discrimination in reprisal,
that the agency post a notice, and that the agency pay $9,313.50, in
attorney's fees and costs. The agency accepted and agreed to implement
the AJ's decision and award.
Regarding claims (a) and (b), the AJ found that complainant failed to
show a causal connection to her prior EEO activity.2 However, the AJ
assumed, arguendo, that complainant established a prima facie case of
discrimination based on reprisal, and found that the agency articulated
legitimate, nondiscriminatory reasons for its actions: complainant's work
merited a FS rating (claim (a)); and SR routinely examined the work of
his staff and spoke loudly due to the noise level in the facility (claim
(b)). The AJ also found that complainant did not demonstrate pretext.
Regarding claim (c), the AJ found that S1's inquiry into complainant's
EEO activity constituted retaliatory discrimination.3 While the AJ
noted that complainant was not deterred from future EEO activity, an
agency has a continuing duty to promote the full realization of equal
employment opportunity in its policies and practices in every aspect
of agency personnel matters. 29 C.F.R. � 1614.102. The AJ found that
agencies must, among other matters, ensure that its managers promote and
enforce a vigorous equal employment opportunity program. 29 C.F.R. �
1614.102(a)(5); Pruette v. USPS, EEOC Appeal No. 01951567 (March 3,
1998).
The Commission has held that the actions of a supervisor may be per se
reprisal where s/he intimidates an employee and interferes with his/her
EEO activity in any manner. See Binseel v. Department of the Army,
EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Department of
the Army, EEOC Request No. 05920778 (June 4, 1993). We find that S1's
comments to complainant constituted a per se violation of Title VII
and the Commission's regulations by interfering with her rights to
pursue remedies for violations of equal employment opportunity laws.
42 U.S.C. �2000e-3(a); 29 C.F.R. � 1614.101(b); see Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the decision of the AJ.4
Accordingly, the agency's decision is affirmed. The agency is directed
to comply with the order below.
ORDER
To the extent that the agency has not already done so, the agency is
ordered to take the following remedial actions:
A. Within sixty (60) days of the date this decision becomes final,
the agency shall conduct two (2) hours of training for SR addressing his
responsibilities with respect ensuring equal employment opportunity and
eliminating discrimination in the federal workplace. The training shall
place special emphasis on the prevention and elimination of retaliatory
discrimination. The Commission does not consider training to be a
disciplinary action.
B. Within sixty (60) days of the date this decision becomes final,
the agency shall consider appropriate disciplinary action against SR and
report its decision. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. The Commission does not consider training to
be a disciplinary action.
C. Within sixty (60) days of the date this decision becomes final,
the agency is directed to pay complainant's counsel $9,313.50, in
attorney's fees and costs.
D. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation and evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post the attached notice in its employee area
at Farmland National Beef, Dodge City, Kansas. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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
__09/25/2008________________
Date
1 SR admitted that his inquiry referenced a recent call he received from
an EEO Counselor in regard to the instant complaint. Complainant added
issue (c) by amendment to the instant complaint following SR's comments
to her.
2 As noted by the AJ, to demonstrate a causal connection using temporal
proximity, the separation between the employer's knowledge of the
protected activity and the adverse employment action must be very close.
See Clark County School District v. Breeden, 532 U.S. 268 (2001) (holding
that a three-month period was not proximate enough to establish a causal
nexus); EEOC Compliance Manual, Section 8, Retaliation, pp. 8-18 (there
must be proof that the acting agency official(s) took the action at
issue because of complainant's prior protected activity and sought to
deter complainant or others).
3 The AJ referred to a Commission decision in Sanders v. Department
of Education, which is properly cited as EEOC Request No. 0519990744
(October 13, 2000).
4 In her appeal statement, complainant restated the AJ's factual
summation, correcting items that she asserted were incorrect; however,
none of the corrected facts affect the AJ's conclusions of law and award
of remedy.
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0120080253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080253