0120060487
02-15-2007
Edith Moore, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Edith Moore,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200604871
Hearing No. 1202004-00693X
Agency No. ARMTMCFE04OCT00
DECISION
On October 17, 2005, complainant filed an appeal from the agency's
September 19, 2005 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of an
unspecified EEO statute. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission reverses and remands the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Transportation Planning Specialist (Readiness Planner) at Fort Eutis,
Virginia. On September 11, 2003, complainant contacted an EEO Counselor
and filed a formal EEO complaint on September 28, 2004, alleging that
she was discriminated against on the basis of reprisal for engaging in
prior protected EEO activity under an EEO statute that was unspecified
in the record when:
1. on August 22, 2003, she was counseled for inappropriate dress; and
2. on December 15, 2003, she received a performance rating of
"Excellent" in 25-74% objectives.
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 timely
requested a hearing. The AJ issued a Notice of Intent to Issue a
Decision Without a Hearing. The agency argued that a decision without
a hearing was appropriate, while complainant objected. The AJ assigned
to the case issued a decision without a hearing on September 1, 2005.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
The AJ found the following facts: Complainant's immediate supervisor
(S1) was involved in complainant's prior EEO activity regarding a
non-selection claim. S1 stated that on August 11, 2003, complainant wore
shorts, a tee-shirt, no stockings, and open sandals to work. S1 called
complainant into her office, presented her with a copy of the dress code
policy, and advised her that if she was serious about being promoted to
a GS-13, she needed to dress for success. S1 stated that it was just
a discussion and that she rated complainant based on her assessment of
complainant's performance during the relevant time frame.
The AJ concluded that, viewing the evidence in the light most favorable
to complainant, she, nevertheless, failed to present any evidence
from which a reasonable fact finder could conclude that the agency's
actions were motivated by retaliatory animus. The AJ found that even
though complainant maintained that she was dressed appropriately in a
"skort," and not shorts, and had worn similar types of outfits before,
complainant failed to present evidence that calling her into the office
and advising her about proper business attire was designed to retaliate
against her for prior EEO activity. The AJ further concluded that while
complainant argued that she always received the highest ratings from her
previous supervisors, complainant offered no evidence to corroborate her
assertions that she deserved a higher rating. The AJ also found that
complainant failed to proffer evidence to show that her performance
was at the highest level during the relevant rating period. Finally,
the AJ summarily concluded that complainant failed to establish that
she was subjected to retaliatory harassment.
On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing. Complainant argues that a dispute exists as to whether
S1 took actions to retaliate against complainant. Complainant argues
that she established a prima facie case of retaliation and that the
AJ inappropriately weighted the evidence presented. Complainant also
argues that the AJ inappropriately applied the standard of hostile
work environment rather than a disparate treatment retaliation claim.
The agency argues that the AJ appropriately issued a decision without
a hearing because complainant failed to establish a prima facie case
of retaliation. Further the agency argues that complainant failed to
proffer evidence to demonstrate that the agency's articulated reasons
for its actions were a pretext for retaliation. The agency requests that
we affirm its final order adopting the AJ's finding of no retaliation.
Where the AJ has issued a decision without a hearing, we scrutinize
the AJ's legal and factual conclusions, and the agency's final order
adopting them, de novo. 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.B. (November 9, 1999). (an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will be reviewed de novo"). The Commission's
regulations allow an AJ to issue a decision without a hearing when 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. at 255.
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, a hearing is required. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without a hearing only upon a determination that the record has
been adequately developed for such disposition. See Petty v. Department
of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
In the instant case, we find that the AJ erred in issuing a decision
without a hearing. In viewing the facts in the light most favorable
to complainant, the record reveals that, on August 22, 2003, while
her EEO complaint regarding the non-selection was pending, S1 called
complainant into her office and informed her that her attire did not meet
the agency dress code and that shorts were not considered business attire.
Complainant stated that she never wore shorts to the office, but instead
wore "skorts," a split skirt resembling a full skirt that reaches down
to her knees. Complainant stated in her affidavit testimony that she
had worn the same outfit over the last five years and no one previously
mentioned that her attire was unprofessional. Complainant also documented
the instances when other individuals wore items that violated the dress
code presented to her by S1, but no one else had been spoken to by S1.
The affidavit testimony of the union Vice-President (UVP) revealed that
there was no dress code at the facility. The UVP stated the Headquarters
had a dress code, but that did not apply to the facility were complainant
worked.
With regard to her rating, complainant indicated that she always received
"exceptional ratings" and a "block one" rating on her performance
appraisals. On December 15, 2003, complainant received a performance
rating of "Excellent" in 25-74% of her objectives, which was lower than
she was rated the year before. Although complainant had a different
supervisor the year before, the performance appraisal was issued shortly
after the EEO Fact Finding Conference held on October 9, 2003, regarding
her prior EEO non-selection claim. All of S1's subordinates received a
"block one" rating, except for complainant. Complainant was also the
only subordinate to initiate EEO activity. Additionally, complainant
stated that S1 did not have performance meetings or any discussions that
could have been regarded as performance meetings with her.
We find complainant has established that genuine issues of material
fact exist, when taking the facts in the light most favorable to
complainant. The AJ erred when she weighed the facts as to whether
complainant was dressed appropriately for work or not. Although S1
stated that complainant was wearing shorts, complainant stated that
she wore "skorts," which she had worn previously. Further, the UVP
stated that no dress code existed and that he had seen others wearing
shorts and open sandals. More importantly complainant identified a
number of individuals under S1's supervision who wore jeans, capris,
and other casual wear regularly. Although S1 stated that individuals
dressed casually when they were moving boxes or traveling, we find that
complainant has established that a question of fact exists as to whether
a dress code existed at the facility and whether S1 applied it in an
even manner. Also, complainant established a genuine issue of whether
S1 was motivated by retaliatory animus since this discussion occurred
while complainant's initial EEO claim was pending.2
With regard to the lowered performance appraisal, it appears from
the record that a genuine issue of fact existed. Complainant provided
affidavit testimony that although she agrees that she met with S1, those
meetings were not performance counseling sessions. Complainant also
stated that during those sessions S1 did not provide her with any guidance
or indicate to complainant that she believed that her performance was
falling. Complainant also provided testimony contesting each rating that
was given. Although S1 articulates reasons for lowering complainant's
ratings, we find that taking the facts in the light most favorable to
complainant, given the specificity of complainant's responses to how she
believed she performed, complainant has proffered sufficient evidence
to establish that genuine issues of material fact exist. Additionally,
we find that the AJ erred by weighing the evidence of complainant and
S1 with regard to the performance appraisal.
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,
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."
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). In summary,
unresolved material issues remain. The AJ erred in granting the agency's
Motion for a Decision Without a Hearing.
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 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 (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
____2-15-07______________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 We note the Commission's policy on retaliation prohibits any adverse
treatment that is based on a retaliatory motive and is reasonably likely
to deter the charging party or others from engaging in a protected
activity. See EEOC Compliance Manual Section 8, "Retaliation" No.915.003
at pp. 8-13 (May 20, 1998).
??
??
??
??
2
01A60487
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120060487