01A10552
09-25-2001
Edwin M. Silva, Complainant, v. Yolanda T. Wheat, Chairman, National Credit Union Administration, Agency.
Edwin M. Silva v. National Credit Union Administration
01A10552
09-25-01
.
Edwin M. Silva,
Complainant,
v.
Yolanda T. Wheat,
Chairman,
National Credit Union Administration,
Agency.
Appeal No. 01A10552
Agency Nos. NCUA-99-06
NCUA-98-15
NCUA-98-01
Hearing Nos. 370-A0-2122X
370-99-2130X
370-99-2131X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his complaints of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge
(AJ) properly determined that summary judgment in favor of the agency
was appropriate.
BACKGROUND
The record reveals that during the relevant time, Complainant was employed
as a Credit Union Examiner at the agency's Pacific Regional Office.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed formal complaints on October 10,
1997; July 10, 1998; and March 26, 1999. Complainant alleged he was
discriminated against on the bases of age (48), disability (Attention
Deficit Disorder), and reprisal (prior EEO activity) when management
placed him on a Performance Improvement Plan (PIP), denied him a
reasonable accommodation, rescinded a pre-existing accommodation,
closely monitored his work, and rated his performance as �Minimally
Successful.� At the conclusion of the investigation, complainant was
provided a copy of the investigative file and requested a hearing before
an EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing finding no discrimination.
The AJ concluded that complainant failed to establish his claim of
discrimination. The AJ initially determined that there were no material
facts in dispute. Furthermore, as to the claim that management closely
scrutinized his work, the AJ determined that complainant failed to show
that his supervisor (Supervisor) had taken any action in retaliation for
his prior EEO activity. Rather, the AJ determined that the Supervisor
was concerned about the quality of complainant's work and felt it was
prudent to monitor. As to complainant's claim that his reasonable
accommodation was rescinded, the AJ found that complainant merely
asserted that he suffered retaliation but that the Supervisor had not
actually rescinded his reasonable accommodation. Regarding the PIP,
the AJ found that the agency did not fail in its duty to provide a
reasonable accommodation. The AJ found to the contrary in that the
agency had been accommodating complainant's condition. The AJ then
found that complainant failed to establish that the agency's reason for
rating him as �Minimally Successful� was pretext. Complainant also
alleged that the Supervisor verbally harassed him. The AJ determined
that complainant failed to establish a prima facie case in that he
provided no evidence to show that there were similarly situated employees
outside of his classes who were afforded better treatment. Finally,
the AJ addressed complainant's overarching claim that the incidents
listed in his complaints constituted harassment. The AJ determined
that complainant failed to produce evidence that these events occurred
or that they were based on unlawful discrimination. Accordingly, the
AJ granted summary judgment in favor of the agency.
The agency's final action implemented the AJ's decision. On appeal,
complainant contends that the issue of reasonable accommodation dates
back to 1992. He has been diagnosed with ADD and has made numerous
requests for an accommodation. One such request was for more time
before being placed on a PIP. Complainant also claims that he made
requests for reasonable accommodations to allow him to improve his
performance, however, his Supervisor did not believe that they would
help. He, therefore, claims that the agency's denial of his requests
for reasonable accommodations kept him from improving his performance.
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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, 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, we find that the AJ erred when she
concluded that there was no genuine issue of material fact in this case.
In finding no discrimination, the AJ relied on the representations of
management officials as provided in their affidavits. As to complainant's
claim that his supervisor scrutinized his work closely, the AJ found that
the Supervisor did so because of complainant's performance problems.
The AJ never addressed the issue in terms of complainant's alleged
disability. Further, as to the agency's rescission of complainant's
reasonable accommodation, the AJ found that the Supervisor never
actually rescinded the reasonable accommodation while also noting that
the Supervisor stated that complainant was no longer entitled to the
requested accommodation. Despite the apparent contradiction, the AJ
determined that the Supervisor demonstrated his intention to continue
the reasonable accommodation. The AJ also used this determination to
find that complainant could not satisfy his performance requirements and
was placed on a PIP even with the reasonable accommodation. Finally,
the AJ found that complainant failed to substantiate his claim of a
hostile work environment based upon the disputed incidents. In doing so,
it appears that the AJ credited the Supervisor's version of the alleged
incidents over that of complainant's.
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 to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(d) and (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, there are simply too many
unresolved issues which require an assessment as to the credibility of
management officials and complainant. Therefore, judgment as a matter
of law for the agency should not have been granted.
Further, the Commission notes that complainant filed other appeals with
the Commission, namely Silva v. National Credit Union Admin., EEOC
Appeal No. 01972528 (November 1, 2000) and Silva v. National Credit
Union Admin., EEOC Request No. 05971113 (August 1, 2000). In those
decisions, the Commission remanded the complaints to the agency to
request a hearing before an EEOC AJ. The complaint in the instant matter
involves claims related to those raised in Appeal No. 01972528 and EEOC
Request No 05971113. Accordingly, we remand the instant complaint for
consolidation with the complaints remanded in EEOC Appeal Nos. 01972528
and EEOC Request No. 05971113, pursuant to 29 C.F.R. � 1614.606.
CONCLUSION
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 EEOC San Francisco
District Office for consolidation with the claims raised in EEOC Request
No. 05971113 and Appeal No. 01972528 and requesting 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
Hearings Unit of the San Francisco District Office 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
_____09-25-01_____________
Date