0120122037
02-06-2013
Linda Porter, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce, Agency.
Linda Porter,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce,
Agency.
Appeal No. 0120122037
Hearing No. 570-2010-00070X
Agency No. 105300221
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 15, 2012 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accountant at the Agency's Bureau of Economic Analysis (BEA) in Washington, DC.
On February 26, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (Black) when, on October 30, 2009, she was terminated from her position of Accountant, ZA-0510-III/01, during her probationary period.
At the conclusion of the Agency's investigation into her claims, 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 requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). On February 6, 2012, the Agency filed a Motion for Summary Judgment. Complainant filed an Opposition on February 24, 2012. On February 28, 2012, the AJ granted the Agency's motion for a decision for summary judgment.
Based on the investigation, the AJ found the following facts were "undisputed." On August 3, 2009, Complainant was hired into a competitive, career conditional appointment as an Accountant, ZA-0510-III/01, with the BEA subject to her satisfactory completion of a probationary period. Complainant was hired by the management officials who would become her first (Supervisor 1) (Asian male) and second (Supervisor 2) (Caucasian female) level supervisors. Complainant's Accountant duties required her to edit and review survey forms, and determine whether the forms were consistent, complete, and in compliance with reporting requirements.
Complainant worked with approximately seven other Accountants who hired around the same time as she was in the Direct Investment Abroad Branch (DIAB). Two out of the seven other accountants that were hired were African-American and one was female. Complainant was appointed at the ZA-III level with a salary of $65,000.00 dollars. No other accountant hired by Complainant's supervisor during this period began at as high a salary level as Complainant.
Beginning August 3 and ending August 21, 2009, Complainant participated in several group-training sessions given for all new employees. Complainant also sat with another accountant "to see how it works." The Lead Training Accountant (LTA) (Caucasian male) was assigned by the first and second level supervisors to train the new accountants, including Complainant. The LTA conducted one-on-one training sessions with Complainant. However, during Complainant's second week, the LTA informed Complainant that she was not on par with the other accountants who began work at the DIAB at approximately the same time.
The LTA completed an audit of a company's folder that Complainant had worked on. On or about October 9, 2009, Supervisor 1 and the LTA met with Complainant to discuss the issues/deficiencies. Complainant was presented with two written audit reports pointing out errors Complainant made in processing the 2008 BE-11 reports for two companies. Supervisor 1 told Complainant that her mistake was unacceptable and that she should correct it.
On October 14, 2009, Complainant reviewed the findings in the audit that had been prepared by the LTA. Complainant noticed that some of the errors/mistakes and changes that were identified had been made during the pre-editing phase by another accountant prior to Complainant's employment. Complainant later met with the LTA to discuss this fact and to also inform him some of the other changes she made were the result of a conference call that she had with him and the company's financial officer on or around September 16, 2009. The LTA acknowledged that he did not know about the pre-editing mistakes and that he had forgotten about the conference call when he conducted the audit.
Supervisor 1 asked the LTA to complete a second audit on a folder Complainant had completed. On or about October 15, 2009, Complainant met with the LTA, Supervisor 1 and Supervisor 2 about the audit. Supervisor 1 asked Complainant if she had questioned the company about the ownership, and Complainant responded that she had not because she did not get any errors from the system indicating that something was wrong. Supervisor 1 told Complainant that the LTA had informed him that he had instructed Complainant to call the company about ownership issues, and that Complainant did not follow his instructions. Before giving Complainant a chance to speak, Supervisor 1 stated, "This is unacceptable," and left the office. Complainant explained to the LTA and Supervisor 2 that she was never notified to contact the company. The LTA told Complainant that he told her to contact the company, but could not remember the time or day.
On October 30, 2009, Supervisor 1 terminated Complainant during her probationary period. The termination notice issued by Complainant's supervisor stated that on September 30, 2009, the "senior editor" (the LTA) directed Complainant to contact a company to clarify contradictory ownership issues, that subsequently the LTA discovered that Complainant changed the ownership percentages of the company without contacting the company, and that on October 15, 2009, Complainant acknowledged that she had not called the company. The letter also stated that on October 9, 2009, Supervisor 1 and the LTA met with Complainant and presented her with two written audit reports which directed Complainant to the numerous errors she had made in processing. The letter also stated that Complainant sent e-mails with incorrect grammar and sentence structure.
Based on this evidence, the AJ issued a summary decision finding no discrimination. In reaching this decision, the AJ determined that even if Complainant could establish a prima facie case, the Agency had articulated legitimate, nondiscriminatory reasons for Complainant's termination. Specifically, the termination letter identified several performance deficiencies, including: l) numerous errors on BE-11 reports; 2) failure to follow directions; and 3) incorrect grammar and sentence structure used in e-mails. The AJ acknowledged that Complainant had filed an Opposition arguing that the articulated reasons for her termination by the responsible Agency officials were not credible. The AJ, however, concluded that, after consideration of Complainant's "pretextual evidence," she failed to "raise a triable issue regarding the Agency's justification for her termination."
On March 15, 2012, the Agency issued its final order adopting the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 this case, we find that during the investigation, in her Opposition to summary judgment at the hearing level, and on appeal, Complainant has consistently asserted that the reasons proffered by the Agency for her termination were pretext for discrimination. With regard to the errors identified in several of her reports, Complainant asserts many of the mistakes were made by another accountant and other changes to the reports, later questioned by management, were approved by the LTA during a conference call. With regard to the claim that she failed to follow the LTA's instructions to contact the company in another audit, Complainant has consistently denied that she received such an instruction. During the investigation, the LTA conceded that he could not remember the time or day of the alleged instruction. Finally, Complainant denies that she used improper grammar and spelling in her emails and notes that the Agency failed to produces documentary evidence to support its claim. Complainant has requested that the credibility of the Agency's witnesses be determined through testimony and cross examination at a hearing.
Complainant also notes that her termination may have resulted from a bias against her because she notified management shortly after she was hired, that she needed to visit the nurse's station twice daily for 10-15 minutes to pump breast milk. She claims that right after she made this request, the LTA told her she was not "on par" with the other new accountants. Complainant claims that Supervisor 1 asked the LTA to monitor Complainant's departures from the office and make a log of her activities.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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).
In this case, we find that the AJ has made improper credibility determinations in finding no pretext without a hearing where he could observe the witnesses and hear their testimony subjected to cross examination. While the AJ has stated that Complainant did not provide adequate proof corroborating her own statements of what occurred, some of the evidence required by the AJ may simply not exist, and evidentiary determinations will rest heavily on credibility findings. For example, the AJ noted that Complainant did not have any corroborating proof for her contention that she was not instruction by the LTA for call the company in an audit, the event which the Agency seems to indicate precipitated the decision to terminate her. However, there is no indication by either party that anyone else would have any direct knowledge of this event other than Complainant and the LTA, so determining what actually happened will be a matter of deciding who is the more credible witness. Even if Supervisor 1 made the decision to terminate based solely on being told by the LTA that his instruction was not complied with, a determination must still be made about whether or not the LTA was motivated by discriminatory animus in reporting (and potentially lying about) this matter to management.
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, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (November 9, 1999); 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 25, 1995). In summary, there are simply too many unresolved issues concerning the reasons for the decision to terminate Complainant that require an assessment of the credibility of the various management officials, the LTA, and Complainant, herself. Therefore, judgment as a matter of law for the Agency should not have been granted in this case.
Accordingly, the Agency's final order adopting the AJ's decision in its favor by summary judgment is VACATED and the matter is REMANDED for further processing pursuant to 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 (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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
February 6, 2013
__________________
Date
2
0120122037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122037