0120100051
04-02-2010
Francine Plummer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Francine Plummer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120100051
Agency No. HS-07-FEMA-002635
Hearing No. 570-2009-00058X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 1, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events at issue, complainant (black female, over age
of 40) was employed by the agency as a Program Analyst, GS-13, with the
Federal Emergency Management Agency (FEMA). Sometime prior to February
2006, complainant reported to management officials that she was offended
by the fact that her first level supervisor (Supervisor 1, black male)
continually called complainant and two of her coworkers "Angry Black
Women." Supervisor 1 admitted to using the continued use of the term,
stating it was an attempt to coax the women into being "self-effacing."
As a result of the concerns she raised to management about Supervisor 1,
complainant was removed from his supervision and placed on a detail.
In February 2006, complainant was detailed to the Administrative Support
Services section. The memorandum from the Deputy Director of the
Logistics Branch effectuating the detail indicated, in pertinent part,
that complainant was placed "into the acting supervisory role of Unit
Leader for the Cadre Deployment Unit, not to exceed 120 days. . . . This
action is necessary to provide the Logistics Branch with an authorized
supervisor to manage the Cadre Deployment Unit." The supervisory position
to which complainant was detailed was a GS-14 position. However, because
complainant was not formally detailed to the position, she was not
afforded the pay or benefits of a GS-14 employee. Complainant asserts
that she requested that paperwork (SF-50/52) be prepared to officially
place her in the detail, but it was not done.
The parties dispute the extent to which complainant performed supervisory
duties while serving in the detail. According to complainant,
she was granted "signature authority" to authorize official travel,
approve travel vouchers, approve time and attendance reports, authorize
I.D. banding, and approve credit card purchases. Complainant did not
have this authority prior to her detail. According to the manager who
gave complainant this authority, only supervisors had the authority
to approve time and attendance and travel vouchers. Complainant also
issued all work assignments to the employees in her unit. The agency,
on the other hand, claims complainant was only a team leader, who made
work assignments, but was not authorized to perform supervisory duties.
Although the detail was originally set to end in 120 days, by November
2006, complainant was still in the position. However, complainant
continued to be concerned that she had not been placed in a GS-14
position, and in the fall 2006, met with the agency's EEO Director to
discuss the matter. The EEO Director subsequently met with the Acting
Chief, Logistics Branch in November 2006 concerning complainant.
On December 1, 2006, shortly after the meeting, the Acting Chief,
Logistics Branch, officially removed complainant's supervisory duties
by email, and reassigned complainant under the direct supervision of
the Acting Chief, Business Management Division.
Complainant remained under his supervision until October 1, 2007, when
Supervisor 2 because her first level supervisor. Complainant alleged that
shortly after Supervisor 2 became her supervisor, they had a one-on-one
meeting during which Supervisor 2 told complainant that management
had told her (Supervisor 2) that she should watch what she said to
complainant because complainant was known for filing EEO complaints.
Supervisor 2 denies making this statement, instead indicating that she
told complainant that management had warned her to watch what she said to
all employees because, due to her military background, she could have a
"gruff" tone of voice.
Complainant also alleges that on September 26, 2007, she and her former
supervisor (Supervisor 1) had a conversation about complainant's
non-selections for several promotions. According to complainant,
Supervisor 1 told her that management was "blackballing" her from getting
a promotion because she had gone to the EEO office the year before.
Complainant subsequently emailed Supervisor 1 and asked him to put this
in writing. Complainant alleged that shortly thereafter, Supervisor 1
walked up to her, grabbed the collar of her shirt with both hands and
began shaking her, asking her why she had sent the email, and denying he
ever said she was being "blackballed." Complainant later reported the
incident to agency security. An investigation was conducted and report
issued, but complainant, despite requests, asserted she was not told
the results of the investigation, but was required to continue to work
in the same office as Supervisor 1 and attend the same meetings with him.
Complainant subsequently filed an EEO complaint over these matters
alleging discrimination on the bases of race (African American),
sex (female), age (over 40), color (black)1 and reprisal for prior
protected activity. Following the investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On August 14, 2009,
the AJ issued a decision by summary judgment in favor of the agency.
On September 1, 2009, the agency issued its final action fully
implementing the AJ's decision. The instant appeal followed.
The AJ defined complainant's claims of discrimination as involving the
following issues:
1. In February 2006, complainant was promised a promotion to GS-14
as the Logistics Cadre Manager, and was assigned higher-lever duties,
but was never promoted.
2. In April 2007, the position of Supervisory Program Specialist
(GS-301-14), advertised under Vacancy Announcement RB-07-299-LBT, was
cancelled and resubmitted with additional criteria, which complainant
alleges was done to disqualify her.2
3. In August 2007, she discovered she was not selected and denied
the opportunity to interview for the position of Deputy Management and
Program Analyst (GS-342-14) under Vacancy Announcement RB-07-0433-LBY. The
selectee was a Caucasian female.3
4. In 2007, the new Director of the Business Management Division told
complainant she was warned to watch what she said to complainant because
complainant was known to file EEO complaints.
5. On September 26, 2007, a co-worker grabbed her clothing around her
neck, shook her and stated he needed to speak with her.
During the hearing process, we note that complainant added an additional
claim, that was not addressed by the AJ as follows:
6. Complainant's supervisory duties were removed effective
December 1, 2006, when management learned that she had spoken to
the EEO office about the grading of her detail.
The AJ found that there were no genuine issues of material fact or
credibility that required resolution at hearing. Therefore, he found
the case appropriate for a decision without a hearing. Based on the
evidence of record, the AJ concluded that complainant did not prove,
by a preponderance of the evidence, that the agency's proffered reasons
for its actions were a pretext for discrimination.
On appeal, complainant, through her attorney, argues that the AJ
improperly granted summary judgment in favor of the agency because there
remain genuine issues of material fact that can only be resolved through
a hearing. Complainant further argues that the AJ failed to address
several of her allegations and applied the incorrect legal standard to
her allegations of retaliation. Complainant argues, for example, the
AJ erred when he held that Supervisor 2's statement that she was told
watch what she said around complainant because complainant was known
for filing EEO complaints was not an adverse action and that complainant
could not prevail on her retaliation allegation. Moreover, complainant
asserts that there are disputed reasons for how the investigation into
the alleged assault was handled.
Furthermore, complainant argues that there are material disputes of
fact as to why the agency failed to process the necessary paperwork to
award her a higher-graded temporary position for performing supervisory
duties and later removed her from the position. "[Complainant]
performed in a supervisory position and it is undisputed that the agency
did not provide her with additional compensation for serving in the
supervisory detail...They are genuine because a fact finder could find
that [complainant] was performing supervisory duties, and those duties
were removed after [complainant] contacted the EEO office regarding not
being paid as a supervisor."
ANALYSIS AND FINDINGS
As this is an appeal from an agency's decision issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
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. Catreet, 477 U.S. 317,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of a 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 summary
judgment only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmond 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). "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). 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, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
After careful review of the record and consideration of the arguments
presented on appeal, the Commission determines that summary judgment
was inappropriate in this case. Genuine issues of material fact exist
that can only be resolved through a hearing. There are significant
unresolved issues surrounding the nexus between complainant's race, sex,
age and prior protected activity and the alleged discriminatory events.
There exists considerable dispute over whether complainant was actually
detailed to a supervisory position, why no official paperwork was
completed and why the supervisory duties were removed from her after she
contacted the EEO office regarding her not being paid as a supervisor.
All of the conflicts go to the heart of complainant's claims and can
only be resolved through a hearing.
In addition, complainant's claims of interference with her pursuit of her
EEO rights also present genuine issues of material fact. For example,
complainant and Supervisor 2 differ considerably in what was said in
their conversation, making credibility determinations critical. We note
in that even in her affidavit, Supervisor 2 seems to give conflicting
information, initially writing, "I did say to her that I was warned by
management to watch what I said to her," and then crossing out the word
"her" and replaced it with "all my employees." There is also significant
dispute over how and why the agency handled complainant's report of
assault by Supervisor 1 and whether or not he told her that she was being
"blackballed" by management because she had gone to the EEO office about
her pay on the detail.
Based on a thorough review of the record, we conclude that the AJ's
finding of no discrimination could not be reached except by resolving
significant conflicting evidence, an action that is not appropriate in a
grant of summary judgment. In light of the disputed issues of material
fact on the instant record, issuance of a decision without a hearing
was not warranted under 29 C.F.R. � 1614.109(g).
CONCLUSION
For the reasons stated above, the Commission VACATES the agency's final
action and REMANDS the matter to the agency for further processing in
accordance with the ORDER below.
ORDER
The instant complaint (as now defined in this decision to include claims
1, 4, 5 and 6) is remanded to the agency for further processing. The
agency shall submit to the Hearings Unit of the EEOC's Washington Field
Office a request for a hearing, as well as the complaint file, within
thirty (30) 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 of the Detroit Field Office.
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 2, 2010
__________________
Date
1 The record reflects that complainant later withdrew color as a basis.
2 On appeal, complainant asserts that on May 21, 2009, she requested that
the AJ reframe the issues and specifically withdrew her non-selection
claims. Therefore, we will not address claims (2) or (3) further in
this decision.
3 This claim has been withdrawn. See note 2.
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0120100051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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