Karin Tucker, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 26, 2001
01984015 (E.E.O.C. Jun. 26, 2001)

01984015

06-26-2001

Karin Tucker, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Karin Tucker v. Department of the Army

01984015

June 26, 2001

.

Karin Tucker,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01984015

Agency No. GFBF 09607 G0510

Hearing No. 100-97-7933X

DECISION

Complainant timely initiated an appeal from a final agency action

concerning her complaint 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. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. Complainant alleges she was discriminated against

on the basis of age (DOB February 24, 1944) when she was not selected

for the position of Sports Specialist.

For the following reasons, we REVERSE and REMAND the agency's final order.

The record reveals that during the relevant time, complainant was

employed as a Recreation Assistant under detail to the position of Sports

Specialist at the agency's Athletics/Sports Branch, Community Recreation

Division, 6th Area Support Group, Stuttgart, Germany. Complainant applied

for the position of Sports Specialist but the position was offered

to a younger candidate (DOB June 1, 1964) effective August 18, 1996.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on September 13,

1996. 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 address whether complainant had established

a prima facie case of age discrimination, but concluded that the agency

proffered legitimate, nondiscriminatory reasons for not selecting

complainant. The AJ found that the selecting official (RMO) determined

that on or around July 5, 1996, complainant had engaged in knowing

misconduct regarding her time and attendance record-keeping which caused

him to lose confidence in her integrity, and thus fitness for the position

in question. In reaching this conclusion, the AJ adopted the agency's

argument and noted that, while complainant denied engaging in misconduct,

whether in fact she had done so was not a genuine issue of material fact.

Instead, the AJ found, the determinative factor was RMO's state of mind,

and whether or not his belief that complainant had engaged in misconduct

was a reasonable one. The AJ found that complainant had failed to show

that RMO's belief in complainant's misconduct was unreasonable, and

also failed to show that age was a determinative factor in the selection

process. The agency's final action implemented the AJ's decision.

On appeal, complainant contends, among other things, that summary judgment

was improper because the question of whether complainant's behavior

constituted misconduct was a material issue of fact. Complainant further

contended that the AJ erroneously considered the evidence in the light

most favorable to the agency, instead of considering it in the light

most favorable to complainant, the party opposing summary judgment.

On appeal, the agency essentially reiterated many of the arguments

it raised before the AJ, specifically arguing that whether or not

complainant actually engaged in misconduct was not a material issue

of fact and that the determinative factor was RMO's state of mind in

believing that she had when she was not offered the position. The agency

further argued, however, that the AJ correctly issued a summary judgment

decision because complainant had not submitted any documentary evidence

that her nonselection was based on age discrimination. In addition, the

agency stated �[s]ince [complainant] could not prove by a preponderance

of the evidence that [the agency's] actions were a pretext for unlawful

discrimination,� summary judgment was proper. The agency 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 nonmoving party must be

believed at the summary judgment stage and all justifiable inferences

must be drawn in the nonmoving 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 by RMO who stated that his reason

for not selecting complainant was because of her misconduct. The AJ

essentially made a credibility determination in favor of the agency,

and against complainant who denied that she had engaged in misconduct.

While we agree that RMO's state of mind is relevant, determining what that

state of mind was necessarily required making a credibility determination.

Given that RMO was both the individual who disciplined complainant for

misconduct and was the selecting official, we agree with complainant

that it was error for the AJ to give credence to RMO's inherently

self-serving statements. We note that, while the AJ correctly addressed

the reasonableness of RMO's belief in complainant's misconduct, the

incorrect standard was applied. The AJ found that complainant had failed

to show that RMO's belief in complainant's misconduct was unreasonable.

In order to defeat summary judgment, however, complainant was merely

required to show that a reasonable person could find that RMO's belief

was unreasonable. Since complainant and her husband denied that her

behavior was anything other than standard practice at the agency,

we find that a reasonable person could believe that RMO's belief that

complainant engaged in misconduct was an unreasonable one.

We note further that if complainant can establish that she did not in

fact engage in misconduct, she will have gone a long way in establishing

pretext, given that the position was offered to a younger applicant.

The Supreme Court has found that evidence sufficient to discredit an

employer's proffered nondiscriminatory reasons for its actions, taken

together with the complainant's prima facie case, may be sufficient

to support a finding of discrimination. Reeves v. Sanderson Plumbing

Products, Inc., 120 S. Ct. 2097 (2000).

We note that the agency's position, as argued in its Brief to the

Commission, misconstrues the applicable standard of production for the

nonmoving party in opposition to summary judgement. The agency cites

Celotex, 477 U.S. 317, 324, for the proposition that in order to defeat a

motion for summary judgment, complainant must produce proper documentary

evidence to show that the nonselection was based on age discrimination.

In fact Celotex, imposes no such requirement on the nonmoving party.

Instead, the case holds that �the nonmoving party [is required] to go

beyond the pleadings and by her own affidavits [or similar evidence]

designate specific facts showing that there is a genuine issue for

trial.� Id. at 324. We find that complainant has met this requirement by

submitting an affidavit from her husband asserting that she did not engage

in misconduct and that her behavior was standard practice at the agency.

The agency further contends that in order to defeat a summary judgment

motion, complainant must �prove by a preponderance of the evidence that

[the agency's] actions were a pretext for unlawful discrimination.�

In fact, however, a motion for summary judgment is defeated merely by

showing the presence of a genuine issue of material fact. See generally

Anderson, 477 U.S. 242, Celotex, 477 U.S. 317; Hughes v. United States

Postal Service, EEOC Appeal No. 01A00168 (April 20, 2000).

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, because the issue

of whether complainant engaged in misconduct requires an assessment as

to the credibility of RMO, various co-workers, and complainant herself,

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 (M0900)

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

June 26, 2001

__________________

Date