01A11774
06-27-2002
Ethylene Crenshaw, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Bureau of Land Management Agency.
Ethylene Crenshaw v. Department of the Interior
01A11774
06-27-02
.
Ethylene Crenshaw,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Bureau of Land Management
Agency.
Appeal No. 01A11774
Agency No. LLM-99-045
Hearing No. 100-AO-7505X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her 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. Complainant alleges she was discriminated against
on the bases of race (African American), color (Black), sex (female)
and reprisal (prior Title VII activity) when:
on or about December 24, 1998, she was not selected for participation
in the agency's Congressional Fellows Program;
in December 1998, she was informed that she was not selected for
the Database Administrator (DBA) position in Information Resources
Management Services;
during Fiscal Year 1998, she did not receive an award for her
accomplishments;
during Fiscal Year 1998, she was continuously harassed regarding parking
expenses incurred during a detail;
on or about December 30, 1998, she was counseled by her then supervisor
(RMO1: African American, Black, female, prior EEO activity unknown)
that she needed to work on her interpersonal skills;
she was forced to work in a hostile environment where management
permitted coworkers to discuss her in a negative manner;
for a three year period a Program Manager (RMO2: Caucasian, White,
male, prior EEO activity unknown) made discriminatory comments about
complainant to other employees;
agency officials did not respond to her request for an Individual
Development Plan in November 1998;
she was denied training since November 1998;
she was a victim of reprisal for past EEO complaints filed in 1991,
1992, and 1996; and
she suffered extreme stress and anxiety as a result of past
discriminatory practices.
For the following reasons, we reverse and remand the agency's final
action.
The record reveals that during the relevant time, complainant was employed
as a Computer Specialist at the agency's Springfield, Virginia, and
Washington, DC facilities. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on April 16, 1999. 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 did not specifically state whether complainant established prima
facie cases of race, color, sex, or reprisal discrimination, but in a
footnote, the AJ did state that complainant had not established that
the relevant management officials were aware of complainant's prior EEO
activities. The AJ further stated that the agency proffered legitimate,
nondiscriminatory reasons for some of its actions. Specifically, the AJ
noted the following: complainant was not selected for the Congressional
Fellows Program because she lacked the requisite experience and the
selectee was better qualified; the DBA position was never filled; no
awards were given to any employees detailed to the office in question;
and the reassignments and details were provided to complainant at her
request. The AJ then concluded that the totality of the record failed
to sustain complainant's claim that she was discriminated against under
any of her alleged bases.
The agency's final action implemented the AJ's decision. From this
decision complainant appeals. On appeal, complainant contends that the
AJ erred in granting summary judgment because there are material facts
at issue in this case. Specifically, complainant argues that one of
her witnesses (CW1: African American, Black, female, prior EEO activity
unknown) directly contradicted the agency when she testified during the
investigation that complainant's interpersonal skills were excellent.
Complainant further argues that CW1 and another witness (CW2: White,
White, male, prior EEO activity unknown) directly contradicted the
agency's contention that there was no hostile work environment when they
stated that complainant was subjected to a hostile work environment
and further, that complainant's problems in the workplace were due to
her race and sex. The agency stands on the record and requests that we
affirm its final action implementing the AJ's decision.
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 he
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 Motion for Summary Judgment.
The AJ essentially made credibility determinations in favor of the agency
and its witnesses, who stated that complainant's reassignments and duties
were at her request, and against complainant and one of her witnesses,
who said that complainant was discriminated against based on her race,
color, and sex. (Report of Investigation, Exhibit 15, p. 8).
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
the various management officials, co-workers, and complainant, herself.
Therefore, judgment as a matter of law for the agency should not have
been granted.
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
___06-27-02_______________
Date