Edith Moore, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 15, 2007
0120060487 (E.E.O.C. Feb. 15, 2007)

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).

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01A60487

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120060487