0120082671
11-13-2008
Dorothy Carswell, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Dorothy Carswell,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120082671
Agency No. 07-009
Hearing No. 570-2007-00752X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 25, 2008 final order concerning her 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.
During the period at issue, complainant was employed as a Financial
Analyst, GS-1160-12, at the agency's Office of Public Housing in Atlanta,
Georgia.
On November 6, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against
her on the basis of race (African-American) when, on August 3, 2006,
her co-worker prevented her from performing her professional work
responsibilities, impacting her performance and creating a hostile work
environment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing.
The record reflects that on January 30, 2008, the AJ heard arguments on
the agency's Motion for Decision Without a Hearing, and orally issued
a bench decision granting the agency's motion. The AJ determined that
based on the evidence of record, complainant experienced an unpleasant
altercation when a co-worker (C1) yelled at her, pounded the table and
blocked her egress from the rear exit, thereby forcing complainant to
use the front exit. The AJ further found that the evidence, construed
in the light most favorable to complainant, did not show that she was
subjected to harassment sufficiently severe or pervasive so as to render
her work environment hostile, and did not show that C1 was motivated
by race or age discrimination in connection with the altercation.
The AJ found that the agency was not liable for the actions of C1
since it was the first and last incident of this type that complainant
experienced and the agency largely shielded complainant from further
contact with C1. The AJ concluded that complainant did not prove, by a
preponderance of the evidence, that the agency's proffered reasons for
its action were a pretext for discrimination, i.e., did not establish
her claim of discrimination. The AJ indicated to the parties that
the bench decision would be typed as a separate transcript which would
be edited and signed. Thereafter, the AJ received four phone messages
from complainant expressing a desire that he cease processing her case
because she intended to file a civil action in the U.S. District Court.
The AJ instructed complainant to put her request in writing.
The record reveals that complainant sent the AJ a memorandum dated January
30, 2008 that reflected her previously stated intent. Subsequently,
the AJ issued a document titled "Order of Dismissal" dated February 8,
2008, dismissing complainant's hearing request.
On February 21, 2008, the AJ issued another document titled "Final
Judgment of the Administrative Judge." Therein, the AJ stated that the
February 8, 2008 Order of Dismissal was vacated and that the instant
complaint was dismissed for the reasons previously expressed in the
Order.1 The AJ further stated "The Notice to the Parties and Compliance
with Final Agency Action, which describe the steps that the parties
should take should they chose to pursue the matter further is attached
to this decision and the deadlines therein shall begin to run from the
current date."
Thereafter, complainant filed a motion requesting that the AJ
rescind certain language in his February 8, 2008 Order of Dismissal.
Specifically, complainant asserted that she informed the AJ that the
agency was harassing and intimidating her witnesses but the AJ failed to
take appropriate action. Complainant further stated that this convinced
her that she would not receive a fair hearing and that it was for that
reason that she elected to withdraw her hearing request. Complainant was
seeking to have the Order of Dismissal amended to reflect this scenario.
On April 7, 2008, the AJ issued a document titled "Order Denying the
Complainant's Motion to Revise the Record." Therein, the AJ determined
that complainant's assertion that he dismissed her hearing request in
direct response to his handling of this issue was "a gross distortion
of the record." Specifically, the AJ stated that complainant argued
strenuously that her complaint should be heard but that she changed her
strategy abruptly after he issued an oral bench decision granting the
agency's motion for a decision without a hearing. The AJ determined
that complainant had no right "to insist that the administrative judge
actively assist her in such distortion of the record by giving a truncated
description of the procedural history of the case."
On April 25, 2008, the agency issued a final order, implementing the
AJ's dismissal of the instant complaint during the hearing process.
In response to complainant's appeal, the agency contends that complainant
has not shown that the AJ ruled inappropriately on any matter. The
agency further contends that complainant's arguments were unfounded and
inaccurate. Finally, the agency contends that the AJ properly determined
that there was no genuine issue of material fact requiring a hearing.
In a sur-reply to the agency's response, complainant contends that
the agency included erroneous statements which were not supported by
credible evidence in the record. Complainant requests that the Commission
overrule the agency's final action implementing the AJ's finding of no
discrimination.
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.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
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 (S0408)
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. 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
November 13, 2008
Date
1 The AJ's February 21, 2008 order essentially re-issued his February 8,
2008 order, but had the effect of extending the parties' time to act
thereon.
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0120082671
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082671