01A31846
06-04-2004
Donald C. Benavidez, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Donald C. Benavidez v. Equal Employment Opportunity Commission
01A31846
June 4, 2004
.
Donald C. Benavidez,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 01A31846
Agency No. 0-0100075-DE
DECISION
Complainant timely initiated an appeal from a final agency order
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. For the following reasons, the Commission<1> VACATES
the agency's final order and REMANDS the case for further processing.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly granted
the agency's motion for summary judgment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Investigator, GS-0181-11 at the agency's Denver District Office
(DENDO). Complainant sought EEO counseling and subsequently filed a
formal complaint on October 3, 2001, alleging that he was discriminated
against on the bases of national origin (Hispanic) and reprisal
(prior protected activity under Title VII) when he was harassed by his
supervisor and with regard to the terms and conditions of his employment.
Further procedural history is incorporated into the statement of facts
which follows.
Complainant named as the alleged discriminating official the Supervisory
Investigator (SI) (Irish/Japanese). At the time of the first incident
alleged, SI was complainant's immediate supervisor. Shortly thereafter,
SI became the DENDO Intake Supervisor and supervised complainant's work
only as it related to Intake duties.
On July 13, 2001, complainant reported the harassment to the DENDO
Director. On July 18, 2001, complainant reported the harassment to
the DENDO Enforcement Manager. An investigation (non-EEO) commenced on
that date.
On July 31, 2001, complainant initiated EEO counseling. On October 3,
2001, complainant filed his formal complaint. On October 26, 2001,
the agency issued the letter of acceptance. On an unspecified date
thereafter, the complaint was assigned to an EEO investigator with the
agency's Office of Equal Opportunity (OEO).
On March 25, 2002, the DENDO Enforcement Manager submitted her report of
investigation to the DENDO Director. On June 12, 2002, agency issued SI
a letter of reprimand and advised complainant that he would no longer be
under SI's supervision. In July 2002 (date not specified), the agency
replaced SI as Intake Supervisor, thereby also removing complainant from
SI's supervision.
Complainant's specific allegations
Complainant stated that prior to the events at issue, he and SI had
an amicable relationship of over one year, frequently taking smoking
breaks and going to lunch together. Their relationship changed after
an incident in the fall of 2000, just before he was reassigned to a
different supervisor<2>. Complainant, who is also part Navajo, stated
that when he and SI were alone in SI's office, SI told him an offensive
joke about Native Americans and Mexicans.<3>
Complainant stated that he was �dumbfounded,� and that decided to
stop associating with SI except as necessary for work. Complainant
stated that SI pressured him to continue joining him for breaks and
lunches, and that after complainant declined several times he stopped.
Complainant noted that he quit smoking in December 2000 (and so no longer
took smoking breaks). He also indicated that he stopped going to lunch
with SI because SI always had to �be on top� in any conversation, and
would put him down. Complainant stated that after he began refusing
invitations to take breaks and go to lunch, SI started addressing him
as �boy,� both when they were alone and in front of other employees.<4>
Complainant stated that SI continued to address him as �boy� even after
complainant reported such conduct to management. Complainant stated that
if he was speaking with either of two female investigators, SI would
join the conversation and belittle complainant until complainant left,
such as addressing complainant as �little man.�<5>
Complainant also related that in June and July 2001 he received more
complex intake assignments from SI than his coworkers did, with a
higher number of �mail ins.� Complainant stated that in July, he was
required to get someone to cover for him when he left the office for a
doctor's appointment, but that two days later a non-Hispanic coworker
was not required to do so. Complainant stated that he was required to
cover for the other employee, and did not get a lunch break as a result.
Complainant stated that missing lunch was a concern because he had been
hospitalized the previous week for a diabetic condition, but he did not
know if SI was aware of that fact (it is not clear whether complainant
referred to the hospitalization or to its cause). Complainant stated
that he complained about the situation, and the next day SI gave him
back two Requests for Information (RFIs) to revise, which SI had never
done since becoming Intake Supervisor.
Regarding intake coverage, complainant stated that SI was aware that he
had been hospitalized the previous week. Complainant also stated that
during his intake weeks in June and July 2001 he was assigned all of
the �mail ins,� which are more time-consuming than other assignments.
Complainant stated that since he reported SI's conduct, SI �glares�
at him. Complainant noted that he avoids SI, parking in a different
location, taking his lunch break earlier, leaving his door shut,
and going to SI's floor only when he has to. In the motion to amend
his complaint to include the �terms and conditions� allegation (which
was granted by the AJ), complainant stated that on April 2, 2002, he
complained to both his supervisor and the DENDO Deputy Director that SI
was treating him coldly and glaring at him. Complainant did not allege
constructive discharge in his complaint, but indicated that the reason
he did not do so was because he had found another job opportunity.
SI's response to complainant's allegations
In his July 27, 2001 interview, SI stated that he had a good relationship
with complainant until complainant quit smoking. SI stated that he
did use the term �boy,� but in such context as �Let's get rolling on
this, boys.� SI stated that he did not recall addressing complainant
as �little man,� and denied telling the offensive joke. SI stated that
he had no issues with people from other units visiting his subordinates,
and noted that he might join in the conversations.
SI stated that he distributes �mail ins� randomly for the most part,
with exceptions where an investigator has particular familiarity with the
charging party or the type of charge, or has worked a case previously.
He stated that he tries to ensure that everyone receives a share of the
easier assignments. SI stated that he has probably returned RFIs for
minor revisions to all of the investigators.
Regarding intake, SI stated that appointments are distributed by another
employee. SI stated that assignments can be changed if someone needs
to be out of the office, but noted that standard operating procedure
requires an employee who has advance notice of an absence to obtain
coverage. SI stated that when the comparative employee took leave,
it was a last-minute absence and they had enough coverage to handle
the work. He stated that he did not know at the time that Complainant
and another employee did not get to take lunch breaks, and that had he
known of the problem he would have done something about it (rescheduled
appointments or done an interview himself). SI noted that complainant
complains about everything that is not exactly equal. SI stated that
for the day complainant was going to be absent, he asked complainant to
obtain coverage because they were heavily booked and he did not know
how long complainant would be gone; further, if complainant returned
earlier than expected, he (complainant) would be able to attend a required
training session.
SI stated that he has been very supportive of complainant since
complainant started working at DENDO, and that he resents the allegations.
When asked whether he had any issue with complainant's national origin,
SI stated:
�No, absolutely not, that's ridiculous. In fact, I enjoy Don. Don's one
of those Denver Chicanos, that I grew up with here too as well when
I was going to school, so some of the stories that he's related to me
about growing up are fascinating because I know some of these people.
I was there in the late 60s early 70s, so no I have no concerns about
that at all, I have no concerns abut anybody's national origin.�
In his April 16, 2002 declaration, SI's account of the events at issue
was consistent with his interview, except that he added some details
regarding the absence of the comparative employee who was not required to
obtain coverage when taking medical leave. SI noted that the employee
received a call from her doctor's office nearby, telling her that there
had been a cancellation and if she could come right away the doctor
would see her.<6> SI also stated that he had selected complainant for
his position, had trained him for a year, had entertained complainant
in his home, and had given him encouragement.
Agency's response to the report of harassment
As noted above, within days of complainant's initial report, the
DENDO Enforcement Manager began an investigation into his allegations,
interviewing Complainant, SI, and a half-dozen other DENDO employees.
On March 25, 2002, the Enforcement Manager issued a report of her
investigation. It is noted that the delay in reporting her findings
was attributed to her involvement in a serious automobile accident,
on account of which she was on leave for approximately four months.
The Enforcement Manager concluded that SI had used the terms �boy�
and �little man,� noting that �boy� is �inherently offensive.� The
Enforcement Manager stated that she did not believe SI's denial that he
told the offensive joke, but noted that there were no witnesses and that
complainant had waited a year to say anything.<7>
On June 12, 2002, the Enforcement Manager issued SI a letter of reprimand.
She stated that while she did not believe his conduct amounted
to harassment, it nonetheless was inappropriate and unacceptable.
The Enforcement Manager noted that SI had previously been disciplined
(letter of reprimand and suspension) for similar conduct which did not,
however, involve allegations of national origin discrimination.<8>
Also on June 12, 2002, complainant was advised that he would no longer
be under SI's supervision, although this change was not effected until
SI was replaced as Intake Supervisor sometime in July 2002. It is not
apparent from the record whether SI's replacement as Intake Supervisor
was connected to the events of this case.
Returning to the procedural history of the case, on June 18, 2002,
the agency issued the report of investigation for complainant's EEO
complaint. On July 15, 2002 complainant requested a hearing before an
Administrative Judge (AJ). On August 1, 2002, the case was assigned to
a contract AJ.<9> On October 9, 2002, the agency filed a motion for
summary judgment. On October 24, 2002, complainant filed a reply and
cross-motion for summary judgment.
On November 6, 2002, the AJ granted the agency's motion and issued a
decision finding no discrimination. The AJ determined that there were
no genuine issues of material fact, and granted the agency's motion
for summary judgment while denying complainant's cross-motion. The AJ
found that, construing the evidence in the light most favorable to the
complainant, the conduct of complainant's supervisor did not rise to the
level of harassment. The AJ further found that even if the conduct did
constitute harassment, the agency had undertaken prompt remedial action,
and therefore was relieved of liability. The agency's final action,
issued August 8, 2003, implemented the AJ's decision.
On appeal, complainant maintains that his supervisor's conduct in fact
rose to the level of harassment. Complainant argues that the agency
took no action for eleven months, during which time the harassment was
on-going. The agency's reply brief reiterates arguments raised below:
that the conduct complained of did not constitute harassment; that it
took prompt corrective action; and that the supervisor's conduct was
not motivated by discriminatory animus.
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. 29 C.F.R. � 1614.109(g). 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'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, summary judgment
is not appropriate. In the context of an administrative proceeding,
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, the Commission finds that the AJ
erred in granting the agency's motion for summary judgment. Review of
the record reveals genuine issues of material fact: there is a dispute
between the parties as to the frequency and duration of the objectionable
conduct (occasional and infrequent versus frequent and on-going); there
is a dispute as to the occurrence of the most egregious example of the
harassment which can be resolved only by a credibility determination;
and the allegation of retaliatory conduct on the part of the SI has
not been fully addressed. Further, if the evidence is viewed in the
light most favorable to complainant � that is, if his statement of the
events is taken as true � SI's conduct appears sufficiently severe and
pervasive to have created a hostile work environment. In addition, based
on the record presently before the Commission, it is unclear whether
the corrective action taken by the agency was effective in ending the
objectionable conduct. Moreover, the absence of the Enforcement Manager
following an automobile accident may explain, but does not excuse,
the agency's delay in investigating the harassment. It was therefore
inappropriate for the AJ to grant summary judgment to the agency.
The Commission notes 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, in appropriate instances, to examine and cross-examine
witnesses.� See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); 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 her claims.� 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). In summary, there are genuine issues of material fact
which cannot be decided without assessing the credibility of complainant,
co-worker witnesses, SI, and the other agency officials involved in
this matter. Therefore, judgment as a matter of law for the agency
should not have been granted.
CONCLUSION
After a careful review of the record, including complainant's arguments
on appeal and the agency's response, 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 the appropriate EEOC field
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 (OF) 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
June 4, 2004
__________________
Date
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from those
offices charged with in-house processing and resolution of discrimination
complaints. For purposes of this decision, the term �Commission� or
�EEOC� is used when referring to the adjudicatory authority, and the term
�agency� is used when referring to the respondent party to this action.
The Chair has recused herself from participation in this decision.
2Once the reassignment became effective, SI supervised complainant only
with regard to intake matters.
3A witness stated that complainant related the joke to her, although he
apparently sanitized the language for her benefit. It is noted that
the joke, as recounted by complainant in the record, included vulgar
language and patently racist content.
4Several such instances are corroborated by witnesses.
5At least one such occurrence is corroborated by a witness.
6This assertion was corroborated by a statement from the employee,
who stated that she used two hours of leave plus her lunch hour.
7It appears that complainant in fact waited approximately nine months
to report the offensive joke.
8 Elsewhere in the record, the Enforcement Manager characterizes this
past conduct as �sexist.�
9The Administrative Judge in this case is not an employee of the
respondent agency.