01A10467
04-24-2002
Mary Ann Johnson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Mary Ann Johnson v. Social Security Administration
01A10467
April 24, 2002
.
Mary Ann Johnson,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A10467
Agency No. 98-0125-SSA
Hearing No. 170-99-8123X
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission vacates
the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Teleservice Representative (TSR) at the agency's Jersey
City, New Jersey, facility. Complainant and six other TSRs,<1> filed
formal complaints alleging that they were discriminated against on
the basis of religion (presumably various) when they were not granted
the accommodation of being permitted to earn religious compensatory
time in lieu of taking annual leave or leave without pay (LWOP) for
religious observances. Religious compensatory time is time earned
when an employees works additional time beyond the regular work hours.
Employees �bank� this time for later use.
At the conclusion of the investigation, complainants were provided
a copy of their investigative file and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued one decision for all
complainants without a hearing finding no discrimination.
The AJ concluded that complainants failed to establish a prima facie
case of religious discrimination, finding that none identified their
�bona fide religious belief or have shown how such belief presented
a conflict with any employment requirement of the agency.� However,
�assuming such a conflict did exist, [the AJ found] that the Complainants
have failed to establish a prima facie case of discrimination based on
religion because the preponderant evidence of record does not show that
[complainants] were penalized in any way because of such conflict.�
Moreover, the AJ concluded that the agency proffered legitimate,
nondiscriminatory reasons for denying complainants the ability to earn
religious compensatory time. Namely, the managers of the Jersey City
Teleservice Center (TSC) state that they were directed, pursuant to
a national decision to curtail telephone traffic to its smaller TSC
facilities like Jersey City, to cancel credit and religious compensatory
time. In reaching this conclusion, the AJ noted that no complainant
was denied a leave request as an accommodation. The AJ further noted,
inexplicably, that complainants were allowed �a total of eight (8) pay
periods or sixteen (16) weeks to offset each occurrence of leave used
for religious observances,� which is the very thing complainants are
complaining they were not able to do.
The agency's final action implemented the AJ's decision. On appeal,
complainants contend, among other things, that the grant of summary
judgment was inappropriate because material facts remain in dispute and
the AJ did not correctly evaluate the record evidence. Specifically,
complainants argue that they were not permitted to �work off� time
used, that there were tasks available for compensatory time work, and
that a prima facie case is clearly established by the record evidence.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision.
ANALYSIS
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 the AJ erred when she
concluded that there was no genuine issue of material fact in this case.
As a threshold matter, the AJ needs to address whether all credit and
compensatory time was canceled or just religious compensatory time.
The record, while not conclusive on this issue, suggests that in fact
only religious compensatory time was canceled specifically, as there
is no evidence that any other type of credit or compensatory time was
canceled.<2> Moreover, the AJ concluded complainants were allowed to
pre-earn or post-make-up religious compensatory time during the time
in question, but such a conclusion is directly contrary to the very
basis of each complaint. Another example of the AJ resolving disputes
in favor of the agency, contrary to the law on summary judgment, is
that the agency has not contested whether complainants hold a bona fide
religious belief. Thus, the AJ should have presumed they do for purposes
of summary judgment.
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 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, material facts remain in dispute.
Therefore, judgment as a matter of law for the agency should not have
been granted. Accordingly, 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 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
April 24, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
1 All seven complaints were consolidated before the EEOC Administrative
Judge, who issued one decision. However, the agency issued separate
final actions and each appeal was docketed separately. See EEOC Appeal
Nos. 01A10464; 01A10465; 01A10466; 01A10468; 01A10469; and 01A10470
(________________, 2002).
2 We direct the AJ to more recent case law dealing with similar
issues of discrimination as applied to the privileges (i.e., overtime
and compensatory time) of employment. See Baum v Social Security
Administration, EEOC Appeal No. 01A05985 (March 21, 2002).