0120090136
05-15-2009
Iris E. Torres, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Iris E. Torres,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120090136
Hearing No. 430-2007-00400X
Agency No. 07-66094-00179
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 4, 2008 final order concerning
her equal employment opportunity (EEO) complaint alleging 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.
ISSUE PRESENTED
Whether the instant EEO complaint was appropriately adjudicated by
summary judgment in favor of the agency?
BACKGROUND
On October 31, 2005, complainant was hired as a Medical Officer
(Pediatrics), GS-0602-14, at the agency's Naval Hospital, Marine Corps
Air Station in Cherry Point, North Carolina, subject to a one-year
probationary period. At the time of her appointment, complainant was
the only civilian doctor in her unit. In July 2006, complainant sought
EEO counseling asserting that her first level supervisor had created a
discriminatory hostile work environment for her based on her national
origin (Hispanic/Puerto Rican) and sex (female) and cited to a number
of incidents involving screaming at her and comments he made, as well
as issues concerning office assignments and work hours. The supervisor
identified by complainant left for another assignment shortly after she
sought counseling, and complainant withdrew her informal complaint.
On October 18, 2006, the agency issued complainant a letter of termination
effective immediately. Complainant again sought EEO counseling.
On December 28, 2006, complainant filed a formal EEO complaint in which
she claimed that agency management discriminated against her on the
bases of national origin (Hispanic/Puerto Rican), sex (female), religion
(Catholic), and/or in reprisal for prior EEO activity (the July/August
2006 EEO counseling) when:
(1) management terminated her during her probationary period effective
October 18, 2006;
(2) between June 30 and July 10, 2006, the Director of Medical Services
told her on several occasions that her supervisor's problem with her was
because she was Hispanic, a woman, a civilian and possibly a Catholic;
and
(3) the former Executive Officer and Commanding Officer told her that
they could not do anything about her supervisor's behavior because he
was leaving the hospital.
On March 12, 2007, the agency accepted claim (1) for investigation.
The agency dismissed claims (2) and (3) pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO counselor contact and because complainant
withdrew her prior informal EEO complaint concerning these issues in
August 2006.1
Following the investigation into claim (1), complainant requested a
hearing before an EEOC Administrative Judge (AJ). On February 20, 2008,
the agency filed a Motion for a Decision Without a Hearing. On March 10,
2008, complainant filed a Response to the agency's motion. On July 30,
2008, the AJ issued a decision without a hearing, pursuant to 29 C.F.R. �
1614.109(g), in favor of the agency. The AJ determined that the agency's
stated reasons for complainant's termination-performance deficiencies
and failure to demonstrate teamwork and professional behavior-appeared
legitimate and nondiscriminatory. The AJ went on to conclude that, based
on the record evidence, complainant failed to prove that the agency's
proffered reasons for her termination were pretext designed to mask
discriminatory animus because of her national origin, sex, religion
and/or prior protected activity.
In reaching her decision, the AJ disagreed with complainant's assertions
that she was never counseled about her performance or conduct issues.
The AJ determined that the evidence showed that management discussed these
matters with her through meetings, e-mail correspondence and memorandum.
The AJ further found that while these communications may not have
expressly warned complainant that continued problems could result in
termination, complainant was on notice that she had to successfully
complete her probationary period in order to have a permanent career
appointment. In reaching the conclusion that no discrimination occurred,
the AJ observed that complainant was the only newly hired civilian
doctor and surmised that management's military background and lack of
civilian personnel experience may have contributed to difficulties in
addressing the concerns of a non-military doctor. The AJ determined
that personality issues, misunderstandings between military and civilian
policies, and misconceptions of "civil" behavior plagued complainant's
employment at the agency and resulted in her eventual termination.
On September 4, 2008, the agency issued its final order fully implementing
the AJ's decision. The instant appeal followed.
On appeal, complainant, through her attorney, argues that the AJ "found,
with little explanation, that the agency's proffered reasons for its
actions 'appear' legitimate and offered speculative reasons other than
discrimination that might have been the reasons for the Complainant's
termination, including several reasons not even advanced by the agency."
Complainant also argues that the agency "has to do more in advancing
its grounds than simply making an assertion. There must be a reasonable
factual basis for the agency's argument and no basis in the record for
questioning these reasons. That has not been met in the current case."
Complainant argues that while there were no criticisms of her skills
as a Medical Officer, she was terminated based on alleged issues with
adapting to the agency's environment. Furthermore, complainant argues
that she never refused to do any of the work assigned to her.
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).
Summary judgment was not appropriate in this case as genuine issues
of material fact exist that can only be resolved through a hearing.
In the instant matter, we note that complainant, on appeal, contends
that the AJ improperly determined that it appeared from a review of
the record that the agency's reasons for complainant's termination were
legitimate and nondiscriminatory. In this regard, we note that the AJ
has not elaborated on precisely how the agency's proffered reasons for
its actions were legitimate. Complainant has argued that the agency's
stated reasons for the termination were simply not true. For example,
she noted that one of the reasons proffered in the termination letter
was inadequate performance, such as her refusal or failure to take
back-up calls. Complainant argues, however, that she never refused to do
assigned work, even though she may have objected that the amount of calls
was greater than what she was told when hired. Complainant stated "thus
[the Medical Director] would have the Judge believe that he . . . simply
wished to terminate the Complainant for objecting that the amount of
calls was greater than what she was told when hired. It is inherently
unlikely that it is normal procedure to terminate a physician simply
for voicing an opinion."
Complainant argues that there is a strong inference of reprisal in this
case because the agency terminated her just a few months after she sought
EEO counseling and without any prior history of problems relating to her
professional competence. We note that during the investigation, agency
management officials provided evidence that contradicts complainant's
assertion that performance issues had not been discussed with her prior
to the termination. The AJ resolved this conflicting evidence in favor of
the agency in rendering her decision. However, as noted above, decisions
by summary judgment require resolving such conflicts in favor of the
non-moving party, which in this case was complainant. Complainant also
asserted that the agency's argument that the Medical Director, who was
responsible for issuing the notice of termination, was not aware of her
prior protected activity was not credible. Complainant argued that she
personally informed him that she regarded the treatment by her supervisor
as discriminatory. Complainant stated that the Medical Director's
relationship with her changed after she initiated EEO counseling in
July/August 2006 and "he began gathering information at that time to
justify his termination of [her]."
Therefore, the Commission determines that, under the circumstances of this
case, the AJ's finding of no discrimination could not be reached without
resolving conflicting evidence and making credibility determination,
actions that are not appropriate in a grant of summary judgment. In light
of the disputed issues of material facts on the instant record, issuance
of a decision without a hearing was not warranted under 29 C.F.R. �
1614.109(g).
The Commission VACATES the agency's final order and REMANDS the matter
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Charlotte,
North Carolina District Office the 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 Charlotte District
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, 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
May 15, 2009
__________________
Date
1 The AJ did not specifically rule on the correctness of this partial
dismissal. However, a fair reading of claims (2) and (3) reveal they
are not really separate claims, but are background evidence offered in
support of complainant's claim that her termination was discriminatory.
They should be considered in any further adjudication of the termination
claim.
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0120090136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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