01A01665
09-26-2001
Joann W. Harris, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Joann W. Harris v. Department of Commerce
01A01665
09-26-01
.
Joann W. Harris,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A01665
Agency Nos. 97-55-0007-01
97-55-0113
Hearing Nos. 100-98-7366X
100-98-7386X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issue presented in complaint 97-55-0007-01<1> is whether complainant
has shown that the agency discriminated against her on the basis of race
(African-American) when, on June 24, 1996, she was detailed from the
position of Secretary, GS-318-09, Office of African and Near East to
the position of Secretary, GS-318-09, Office of Agreements Compliance.
In complaint 97-55-0113, the issue presented is whether complainant
has established that the agency discriminated against her on the
bases of race, age (DOB: September 26, 1947), and reprisal (for filing
complaint number 97-55-0007) when: she was not allowed to perform the
administrative tasks delineated in her position description; on January
9, 1997, she was held responsible for the disallowance of advance leave
granted by the Deputy Assistant Secretary (Deputy) to another employee,
on January 16, 1997, she was abruptly reassigned to a position in the
Office of Information Resources Management (OIRM) with responsibilities
at the lower GS-7 level and served as a backup to a lower-graded head
secretary with less experience; on February 13, 1997, she was reassigned
again to a position with Import Administration which has fewer career
growth opportunities; the Deputy did not support her efforts to obtain
copies of an employee's time and attendance records and in identifying
irregularities in these records; her duties continued to be reassigned
to other employees and her supervisor refused to meet with her to assign
new duties or share information; she was the only member of the Trace
Compliance Center and the Deputy's staff who did not receive a new
computer, software, or Lotus Notes training; and the Deputy treats her
leave requests differently than those of other non-African-American staff.
BACKGROUND
The record reveals that complainant, a Secretary, GS-09, who had been
assigned to the Office of Agreements Compliance at the agency, filed
formal EEO complaints with the agency on December 18, 1996 and March
12, 1997, alleging that the agency had discriminated against her as
referenced above. Essentially, complainant's claims of discrimination
fall into four categories: her reassignments, her duty assignments, time
and attendance, and computer equipment and training. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). The AJ issued a decision without a hearing, adopting the agency's
motion for summary judgment.
The AJ incorporated the agency's conclusion that complainant failed
to establish a prima facie case of discrimination. As to all claims,
the agency noted that complainant failed to demonstrate that similarly
situated employees not in her protected classes were treated differently
under similar circumstances. The agency also noted that the claims
regarding time and attendance did not affect her, therefore she failed
to show that she suffered any adverse action. The agency indicated that
complainant's failure to receive a new computer, software, or training
did not hamper her ability to perform her job and therefore she did not
show how she was treated differently. As to the claims regarding her
reassignment from Office of Agreements Compliance, the agency argued that
the official responsible for her transfers, the Director, was unaware of
her prior EEO activity. The agency's motion also noted that complainant
failed to establish a claim of unlawful harassment based upon age, race,
and/or reprisal in that the alleged incidents were not severe or pervasive
enough to create a hostile work environment.
The AJ further adopted the agency's statement of its legitimate,
nondiscriminatory reasons for its actions. The AJ also accepted the
agency's conclusion that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and/or retaliation.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that summary judgment in the case at hand illustrates
the unequal treatment between complainants and agencies. In response,
the agency requests that we affirm its final order.
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 he
concluded that there was no genuine issue of material fact in this case.
As to the claims regarding her duty assignments, complainant contends
that her duties were removed from her rather than the agency's argument
that they were reassigned based on complainant's failure to complete
her assignments. Complainant also notes properly that if she were not
performing her duties, why did the Deputy rate her as �Outstanding� on
her evaluation and gave her a monetary award for performance. The AJ
also relied on the agency's statement that the Director, rather than
the Deputy, was the responsible management official in reassigning
complainant from her position in Office of Agreements Compliance.
There is contradiction within the record. The Deputy averred that the
Office of Personnel was involved in the reassignment. Furthermore,
the Director stated in his affidavit that he consulted with complainant
before detailing her to a position which is normally occupied by a GS-7
secretary and her eventual reassignment to the Import Administration.
He noted that complainant wished to remain in the Office of Agreements
Compliance and mend her work relationship with the Deputy. The Director
decided to reassign complainant based on the recommendation made by the
Deputy who was aware of the complainant's EEO complaint. See Report
of Investigation (ROI), ex. 11. As to the issues involving computer
software and training and time and attendance, we find that complainant
does state a claim.
In finding no discrimination, the AJ relied on the representations of
management officials as provided in their affidavits which contradicts
complainant's affidavit. 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 agency 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 another complaint
with the agency, namely Agency No. 97-55-0007. Complainant appealed to
the Commission the agency's decision in that case, which was the subject
of EEOC Appeal No. 01981627. We vacated and remanded that complaint to
the agency to request a hearing before an EEOC AJ. Since the instant
appeal involves issues raised in EEOC Appeal No. 01981627, we also remand
the instant issue for consolidation with complainant's other complaint
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 is ORDERED to take the following action:
1. The agency shall consolidate this instant claim with the complaint
from EEOC Appeal No. 01981627 pursuant to 29 C.F.R. � 1614.606.
2. 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
____09-26-01______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that complaint 97-55-0007 consisted of four issues.
The agency investigated three of the four issues raised under complaint
number 97-55-0007. The remaining issue was consolidated with and
investigated under complaint number 97-55-0113. The issues raised in
complaint number 97-55-0007 are the subject of EEOC Appeal No. 01981627.