01A13715
06-19-2002
Lannie Prince, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Lannie Prince v. Department of State
01A13715
June 19, 2002
.
Lannie Prince,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A13715
Agency No. EPO-D54
Hearing No. 100-AO-7962X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the bases of her sex (female), race (Black),
and reprisal (filing a prior EEO complaint) when:
(1) In October 1997, she was relocated from her enclosed office space
to a walled cubicle.
She also alleges she was subjected to reprisal only, when:
Effective July 1, 1999, her duties as an EEO Counselor Coordinator were
assigned to a co-worker; and,
The agency assigned an enclosed space to the co-worker who assumed
complainant's EEO Counselor Coordinator duties, giving that individual
the privacy that was taken away from complainant in October 1997.
For the following reasons, we reverse and remand the agency's final
decision.
The record reveals that, at all relevant times, complainant was employed
as an EEO Specialist,
GS-12, at the agency's Office of Equal Employment Opportunity and
Civil Rights (EEOCR). In 1995, complainant's third-level supervisor
(S3) assigned her the duties of EEO Counselor Coordinator. S3 also
asked complainant whether she would like to move to a large office
(with windows) located next to hers, which complainant accepted.
Subsequently, a GS-15 (Asian-American male) was detailed to EEOCR, and
was initially assigned the office of a GS-13 (White female) who was on
detail to the White House at the time. Upon the return to EEOCR of the
GS-13 employee, the GS-15 employee was assigned to complainant's office.
Complainant was moved to a small cubicle, which she says had been used
for files and supplies, and has inadequate lighting. Believing that she
was a victim of discrimination, she filed a formal EEO complaint with
the agency on October 10, 1998 alleging discrimination and reprisal, as
referenced above. Subsequently, on November 9, 1999, after complainant's
duties as EEO Counselor Coordinator were taken from her and given to
a GS-9 employee who was a secretary at the time, complainant filed an
amendment to add the two additional allegations of reprisal.
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,
finding no discrimination.
The AJ found that complainant failed to timely contact an EEO Counselor
and that complainant gave no explanation for why she failed to contact
the EEO counselor until approximately four months after the date of
the first alleged discriminatory event, or why she failed to contact
a Counselor regarding issues two and three until approximately five
months after they occurred. The AJ proceeded to conclude that dismissal
of the complaint was appropriate under EEOC Regulation 29 C.F.R. �
1614.105(a)(1), which requires that complaints of discrimination be
brought to the attention of the EEO Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory, or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. Finally, the AJ summarily stated that, �[i]n the
alternative, ... the agency articulated legitimate, nondiscriminatory
reasons for its actions [which complainant] failed to establish were
.... pretextual.� The agency's final decision adopted the AJ's decision.
On appeal, complainant contends, through her attorney, that the AJ
erred when she granted the agency's motion for summary judgment.
Complainant maintains that S3 has subjected her to harassment on
the bases of her race, sex and prior filing of an EEO complaint.
Specifically, complainant argues that her contact with an EEO Counselor
was not untimely. Complainant correctly notes that the Commission
has held that a complainant who wishes to file an EEO complaint need
not necessarily contact an EEO counselor in order to start the process,
but may contact �any official logically connected with the EEO process.�
See EEO MD-110, Ch.2(I)(A), n.1., citing Kinab v. Department of Defense,
EEOC Request No. 05990249 (May 6, 1999); Floyd v. National Guard Bureau,
EEOC Request No. 05890086 (June 22, 1989). Complainant contends that the
office policy in EEOCR holds that EEO matters within the EEO office itself
are to be raised with the Office of the Legal Advisor for Employment
Matters (OLA). She contends that
she timely contacted an individual in OLA to request to be assigned to
an EEO Counselor. Complainant argues that she also timely contacted
an individual logically connected with the EEO process, in reference
to her second and third allegations. Complainant also contends that
there are genuine issues of material fact in dispute and that the agency
is not entitled to judgment as a matter of law. The agency concedes,
on appeal, that complainant did timely contact an EEO counselor, but
still asks that we affirm the FAD on the basis that complainant failed
to establish a prima facie case of discrimination or reprisal, and that
she did not establish that the agency's reasons were pretextual.
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 complainant did
timely contact an EEO counselor. Additionally, there are genuine issues
of material fact in this case. Specifically, complainant contends,
and the agency denies, that the challenged actions were motivated
by a discriminatory animus toward her race and sex, as well as by an
intent to retaliate against complainant based on her prior EEO activity.
Complainant also proffered testimony from witnesses to the effect that
management's reasons are pretextual. The AJ erred in issuing summary
judgment in sole reliance on the assertions of the agency officials.
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(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
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 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
June 19, 2002
__________________
Date