0120082252
01-08-2010
Linda A. Bomske, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Linda A. Bomske,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082252
Hearing No. 541-2006-00146X
Agency No. 2003055420051033454
DECISION
On April 11, 2008, complainant filed an appeal from the agency's March
12, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission VACATES the agency's final order.
ISSUE PRESENTED
Whether this record contains genuine issues of material fact and/or
credibility which require resolution at a hearing before an EEOC
Administrative Judge.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Certified Ophthalmic Technician GS-7, step 10, at the Denver,
Colorado VA Medical Center. On June 20, 2005, the Clinical Coordinator
retired under the Voluntary Early Retirement Authority and her position
was abolished. Complainant, therefore, began doing the work of two
positions. On or around March 6, 2006, complainant learned her position
would not be upgraded. On September 14, 2005, complainant filed an
EEO complaint (subsequently amended to add issue (2)), alleging that she
was discriminated against on the basis of reprisal for prior protected
EEO activity [under Title VII and the Rehabilitation Act] when:
(1) on or about June 22, 2005, she was assigned the duties of two
positions; and
(2) on or about March 6, 2006, management officials informed complainant
that her upgrade/promotion was denied, and her supervisor stated, "I'm
not going to keep this a secret, it was because of your grievance/EEO's
against management."
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's November 22, 2006, motion for a decision
without a hearing and issued a decision without a hearing on February
28, 2008.
AJ Decision
At the outset, the AJ noted that attempts to settle the instant
matter were not successful. The AJ then noted, "Rather than setting
forth a recitation of background facts that duplicate those in the
Agency's statement, I attach hereto the Agency's Motion for Findings
and Conclusions Without a Hearing and I adopt and incorporate into
this decision the statement of facts contained therein as if set
forth verbatim in this decision." The AJ then found that complainant
established a prima facie case of retaliation. The AJ further found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. The AJ found that management denied that they allowed the
Clinic Coordinator to retire so that complainant would have to perform
additional duties as a way to retaliate against her. The AJ found that
management also denied that complainant's EEO activity was related to the
reclassification decision to keep her position at a GS-7, stating that
the reclassifier had no knowledge of complainant's prior EEO activity,
was not supervised by the relevant management officials, nor was the
reclassification analysis influenced in any way by the Ophthalmology
Section Chief (C1) or the Acting Chief of Staff and Chief of Ambulatory
Care (AC). With regard to the alleged comment attributed to C1 about
management's motivation for not upgrading complainant's position,
C1 denied that complainant's prior EEO activity had any role in the
decision making process or in the reclassification process.
The AJ then found that the record contained no evidence of pretext,
noting that "[i]t undisputed [sic] the reclassifier had no knowledge
of Complainant's prior EEO activity nor is there any evidence he was
influenced in some inappropriate way by [management] or any other
management official to reach a decision which prohibited the Agency
from reclassifying Complainant's position into a GS-9 position due to
Complainant's prior EEO activity." The AJ found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant points out that the AJ found that she established a
prima facie case of retaliation, and additionally contends that the case
ought to have proceeded to hearing. In response, the agency contends
that the AJ properly issued a decision without a hearing in its favor.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing 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." 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). "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).
Judgment as a matter of law should not have been granted in this case
as the record contains genuine issues which must be resolved at trial.
The AJ found that complainant established a prima facie case of reprisal,
and that the agency articulated a legitimate, non-discriminatory reason
for its actions. Specifically, complainant began performing additional
duties when the Clinic Coordinator left because complainant had the
knowledge and background to take over those duties. Additionally,
management re-wrote complainant's position description, however,
a classification specialist from another facility concluded that the
position should not be classified at a higher level. Accordingly, the
remaining question is whether the agency's reasons are merely pretexts
for retaliatory animus.
In ruling on a Motion for a Decision Without a Hearing, the evidence of
the non-moving party must be believed and all justifiable inferences
must be drawn in the non-moving party's favor. Therefore, the AJ was
required to credit complainant's statement that C1 told her that she
was being required to perform additional work because of [her] prior
EEO/grievances.1 In addition, we note that when the EEO investigator
asked C1 whether he made the statement attributed to him in issue (2),
he replied as follows:
A. I didn't say that it was specifically because of her EEOs I don't
think initially. What I was told by a couple of people was that because
of Linda's past record, that management felt that -- I guess management
was hesitant to upgrade her. That's what I was told.
Q. And who told you this?
A. It was [the Chief of Human Resources Management Service] (HR). I was
also told by (AC) that as well.
Q. Okay. Do you know when you were told this? Was it during the process
where you were revising her position description or -
A. No. It was around the time -- it was after I had submitted it and
around the time when I was starting to try and find out what the status
was, you know, why hadn't we heard anything yet. And so I was talking
to I believe [AC] and [HR] to try and find out what the status was,
and I was getting reports back that it was -- wait, actually, it was
[HR]. I didn't talk to him until after, after the ruling or whatever
had been handed down that there would not be a pay increase.
Q. Okay. Now can you tell me exactly what AC said to you that led you
to believe they were hesitant to upgrade her because of her activity.
A. [AC] said to me that his sense was that - and I don't think he was
directly involved in any of the decision-making -- but his sense was
that he was on my side, that he agreed with me, you know, with what I
was saying that Linda was helping us keep the clinic running in a smooth
fashion, but that she also had a lengthy track record of problems as an
employee. And that's what he said to me. He didn't say that she's filed
EEOs or that she's had these types of claims in the past. He said that
she's had problems as an employee and that he thought that it might be
difficult to get a significant pay grade or pay raise as a result of
that.
And I believe that what I communicated to Linda was and what [AC] said
to me was probably in confidence, so I probably shouldn't have relayed
it to Linda, because I don't think he was saying it to me thinking that
it should go straight to Linda.
Affidavit of C1, at 35-36.
There is clearly an issue of credibility that must be resolved as
to whether the agency's articulated reasons are merely masks to hide
retaliatory animus. We note that the AJ also erred in crediting the
agency's assertion that no one with knowledge of complainant's EEO
activity had any influence over the classification process, as that
is a genuine question of material fact for trial, namely, whether any
official with knowledge of complainant's prior EEO activity had influence
over the desk audit and/or the results of the classification process.
In this case, a reasonable fact-finder could conclude that retaliatory
animus motivated the agency's conduct.
CONCLUSION
In this case, 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 for a hearing in accordance with this
decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Denver 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 (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
__01/08/10________________
Date
1 Complainant stated in response to the agency's interrogatory #1: "When
my PD was evaluated and found to remain the same, I inquired to [C1]
how this is possible since I am performing the work of two individuals
of which one of us was two full grades higher. He told me that it was
because of my prior EEO/grievances."
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2
0120082252
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120082252