01A05821
08-29-2002
Katherine Sweeney, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Katherine Sweeney v. Department of Veterans Affairs
01A05821
08-29-02
.
Katherine Sweeney,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05821
Agency No. 982492
Hearing No. 170-99-8436X
DECISION
Complainant timely initiated an appeal from a final agency order
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., 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. For the
following reasons, the Commission reverses and remands the agency's
final order.
The record reveals that during the relevant time, complainant was
employed as a Associate Chief of Nursing Services Education (ACNSE) at
the agency's VA Medical Center in Lyons, New Jersey. Complainant sought
EEO counseling and subsequently filed a formal complaint on August 7,
1998, alleging that she was discriminated against on the bases of sex
(female) and age (D.O.B.: 7/19/46) when:
(1) her staff was reassigned to other services and her duties remained
the same;
(2) she received a satisfactory proficiency report for rating period
ending May 17, 1999, (she asserts that she should have been rated as
outstanding); and
(3) she was subjected to a hostile work environment by her supervisor
from October 2, 1997 to June 2, 1998.
Complainant maintained that her supervisor (S1) harassed her at various
times and dates from October 2, 1997, through June 2, 1998, by inter alia,
requiring her to attend staff meetings, requiring her to counsel employees
under her jurisdiction regarding lateness, by requiring her to attend
professional meeting, by not approving leave requests, by questioning
her use of emergency annual leave and planned sick leave, by reassigning
her staff, by refusing to allow complainant's secretary to be present in
S1's office for complainant's annual Proficiency Report without written
authorization from complainant, by giving her a Satisfactory rating on
the her Proficiency Report, and by yelling at her. Complainant contended
that S1 treated a male co-worker more favorably than she was treated.
Complainant is the nurse responsible for all the daily activities
and cumulative outcomes related to the Nursing Education Department.
The co-worker that she named as her comparator is the nurse responsible
for all of the daily activities and cumulative outcomes related to the
Ambulatory Care Department.
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 concluded that complainant failed to establish a prima facie
case of sex or age discrimination with regard to her allegation that
her staff was reassigned and that she received a satisfactory rating
on her performance appraisal, noting that complainant failed to show
that she was similarly situated to other male or younger employees.
The AJ found that the person that she named as similarly situated had
duties that were altogether different from those of the complainant,
although they were at the same level on the organizational chart and
reported to the same supervisor. The AJ found that the comparator was
responsible for managing a large corps of nurses while complainant
was responsible for managing educational programs. With respect to
complainant's allegation of harassment, the AJ found that complainant's
allegations of harassment were gender and age neutral and her failure
to show that she was treated differently than male or younger employees
regarding most of her allegations was fatal to her claim. The AJ also
found that complainant failed to show that her supervisor's actions were
so objectively offensive as to alter the conditions of her employment
and the incidents of which complainant complained were not sufficiently
severe and pervasive to constitute a hostile environment. The agency's
final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ erred
in dismissing the complaint without a hearing since the AJ misapplied
the substantive law on disparate treatment. Complainant maintains that
the comparative employee does not have to be complainant's conjoined
twin but only similarly situated to her in all relevant organizational
respects. Complainant contends that the comparator that she offered was
similarly situated to her in that they were the exact same level within
the organization and they both reported directly to S1. To support her
contention, complainant maintains that her Proficiency Rating was marked
down allegedly due to an agency consolidation while her comparator's
Proficiency Rating was not affected. Complainant contends that at the
very least, issues of material fact are in dispute.
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. 29 C.F.R. � 1614.109(g). 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's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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,
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 fact the complainant's
comparator was not similarly situated because they performed different
duties. The record shows however, that both complainant and the
comparator were managers who reported directly to S1, they were both held
to the same management standards, they both were annually evaluated by
the same proficiency system based on the same criteria of accomplishment,
both needed approval from S1 in order to take leave, use the VA shuttle
and attend professional conferences. Based on these facts, we find
that the AJ erred when he concluded that complainant was not similarly
situated to the named comparator. Further, we find that the documentary
and testimonial evidence establishes that there are genuine issues of
material fact concerning complainant's lowered performance appraisal.
Specifically, the record indicates that complainant's appraisal was
lowered due to an organizational change, yet the comparator's appraisal
was not lowered. Additionally, the record demonstrates that complainant's
request for leave made several days earlier for a doctor's appointment
was denied while her comparator's requests for leave made on the same
day was approved. As such we find genuine issues of material fact that
precludes summary judgment. We also note that the record contained issues
of credibility which should have been resolved in an evidentiary hearing.
We conclude that summary judgment was inappropriate and complainant is
entitled to a hearing on the complaint.
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 7, page 7-1; see also
29 C.F.R. � 1614.109(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 EEOC Philadelphia
District 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
____08-29-02______________
Date