01a10190
01-12-2001
Martha Johnson, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Martha Johnson v. Department of Agriculture
01A10190
January 12, 2001
.
Martha Johnson,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A10190
Agency No. 98-0203
Hearing No. 100-AO-7382X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.<1>
Complainant alleges she was discriminated against on the bases of race
(Caucasian) and reprisal (prior EEO activity) when: (1) she was notified
of a proposed five (5) day suspension without pay in December of 1997,
and she was then suspended for five (5) days in January of 1998; and (2)
she was subjected to a hostile work environment between November of 1996
and September of 1998 in the form of: (a) the denial of a retroactive
grade increase; (b) usurping of her authority over her subordinates;
(c) a marginally successful performance rating; (d) the aforementioned
five (5) day suspension; and (e) an involuntary directed reassignment to
another position. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission VACATES the agency's final
action.
The record reveals that during the relevant time, complainant was
employed as a GS-343-11/6 Management Analyst in the agency's Office of
the Deputy Administrator, Dairy Programs, Agricultural Marketing Service
in Washington, D.C. Believing she was a victim of discrimination due
to the agency's actions described above, complainant filed a formal
EEO complaint with the agency on December 9, 1997. At the conclusion
of the investigation, complainant received 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 regarding allegation (1), that complainant met her burden
of demonstrating that she engaged in prior protected activity and
agency officials were aware of this activity, but she failed to meet
her burden of establishing that a similarly situated employee not in
her protected class was treated more favorably. The AJ further found
that the agency articulated legitimate, nondiscriminatory reasons for
issuing the five (5) day suspension, namely that: (1) complainant
had a history of interpersonal relationship problems which led to
complaints by her subordinates; (2) she had an admitted violation of
the agency's employee code of conduct; and (3) there were documented
performance issues which resulted in the issuance of the suspension.
See Investigative Report, at Exhibit 12(a). Regarding allegation
(2), the AJ found that complainant met her burden of establishing a
prima facie case of a hostile work environment. However, the AJ found
that the agency articulated legitimate, nondiscriminatory reasons for
the actions taken against complainant. See Investigative Report, at
Exhibits 7-10, 12-14. As a result, the AJ concluded that there were no
genuine issues of material fact which required resolution at a hearing,
and that summary judgment in favor of the agency was appropriate as
the totality of the record failed to sustain complainant's allegations.
The agency's final action implemented the AJ's decision.
On appeal, complainant restates arguments previously made in opposition
to the agency's motion for summary judgment and contends that the AJ's
failure to specifically address the issue of pretext requires a remand.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final action.
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 United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 , 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of
the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103 ,
105 (1st Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
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, the evidence contained therein
reveals that complainant has provided sufficient evidence, which,
if credited, could demonstrate that the agency's articulated reasons
for suspending complainant are pretextual. For example, the agency
suspended complainant in part for Insubordination and Unauthorized Use
of a Tape Recorder, as the agency found that complainant's supervisor
asked complainant to turn off the tape recorder which was recording their
conversation, and complainant failed to do so. However, complainant has
alleged and provided documentation that her supervisor did not ask her
to turn off the tape recorder, and further, that the agency deliberately
attributed words to complainant's supervisor asking complainant to turn
off the recorder which she did not say. In addition, complainant has
contended as evidence of pretext that the agency would not have suspended
her for events which occurred on May 9, 1997, which took place six months
before the proposed suspension and no discipline was proposed. As such,
complainant alleges that it was the tape recorder incident on October 1,
1997 for which she was suspended, and we find that the factual evidence
presented on this issue is in dispute. After consideration of the
record, we disagree with the AJ's finding that there were no genuine
issues of material fact which require resolution at a hearing and find
that there is sufficient evidence which, if credited, could establish
that the agency's articulated reasons were more likely than not a pretext
for discrimination.
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 64
Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. �� 1614.109(c) and (d)). "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. 059
40578 (April 23, 1995). In this case, the material fact of whether
complainant was harassed and improperly suspended based on reprisal is
still in dispute. Therefore, judgment as a matter of law for the agency
should not have been granted in this case.
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 VACATES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner. 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
January 12, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.