01985519
06-27-2001
Oliver Mercier, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Oliver Mercier v. Department of the Navy
01985519
6/27/01
.
Oliver Mercier,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01985519
Agency No. DON-95-00151-052
Hearing No. 170-97-8082X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the bases
of age (68 at the time), and national origin (French) when:
(1) in March 1995, he was not selected for official travel (�TDY�)
to the Pearl Harbor Naval Shipyard; and
on March 15, 1995, he was subjected to harassment by his Rigger
Superintendent when he made the statement �we need riggers� in response
to complainant's request for the TDY.
For the following reasons, the Commission VACATES the agency's final
decision and REMANDS the complaint for a hearing.
The record reveals that complainant, then a Rigger at the agency's
Philadelphia Naval Shipyard, filed a formal EEO complaint with the agency
on April 19, 1995, alleging that the agency had discriminated against him
as referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Upon receipt of the case, the
AJ determined the case was moot due to the closure of the Philadelphia
Naval Shipyard, and remanded the case to the agency. The agency rejected
the AJ's determination and returned the case to the AJ. Thereafter,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of age or national origin discrimination. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
employees sufficiently younger than complainant were treated differently
under similar circumstances. In fact, the record revealed that 20 of the
26 Riggers selected for the TDY assignment in Hawaii were over the age
of 40. Furthermore, two of the individuals selected for the assignment
were age 61 and 62.
In sum, the AJ found that complainant failed to present sufficient
evidence that would establish an inference of age or national origin
discrimination. In that regard, the AJ examined the undated affidavit of
one of complainant's witness. Therein, the witness averred that �on three
or so occasions� in 1993 and 1994, he heard complainant's Superintendent
make the following comments �in the presence of� complainant: �Why
don't you retire f�ing Frenchman,� and �you're too old to go on a trip
to Hawaii, old man.� Although the AJ denied the agency's Motion to
Exclude the affidavit, the AJ found the statements, allegedly made two
years prior to the events in question, were not causally related to the
issues at hand.
The AJ then concluded that complainant established a prima facie case of
national origin discrimination because the agency was unable to determine
the national origins of those Riggers selected for the assignment.
As such, the AJ concluded non-French individuals were selected for the
TDY assignment.
The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that
complainant's Superintendent did not select complainant for the assignment
because complainant was then assigned to the hangar deck of the USS
Kennedy, and as such, his skills were needed on the USS Kennedy.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that
although evidence revealed complainant was referred to by co-workers
and the Superintendent as �Frenchie,� such constituted only awareness of
complainant's national origin, and was not evidence of a discriminatory
motive. The AJ further found that complainant presented insufficient
evidence that complainant's qualifications were �observably superior�
than those selected for the TDY assignment.
As for complainant's allegations that he was harassed when his
Superintendent stated to him, �we need Riggers� after complainant
requested the TDY assignment, the AJ found complainant failed to establish
he was subjected to harassment because of his age or national origin.
On June 18, 1999, the agency issued a final decision that adopted the
AJ's recommended decision. On appeal, complainant contends that the
AJ erroneously determined that his witness' affidavit was not evidence
of a discriminatory motive. Complainant argues that there should be a
hearing to determine the credibility of the witnesses.
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.
In finding no discrimination, the AJ determined that the testimony
of complainant's witness was not evidence of a discriminatory motive.
In the affidavit provided to the AJ, complainant's witness states that
he heard the complainant's Superintendent state, �You're too old to go
to Hawaii� and why don't you retire you f----ing Frenchman.� Assuming
the validity of these statements, complainant has presented direct
evidence of discrimination. Direct evidence of discriminatory motive
may be any written or verbal policy or statement made by a respondent
or a respondent official that on its face demonstrates a bias against
a protected group and is linked to the complained of adverse action.
Revised Enforcement Guidance on Recent Developments in Disparate Treatment
Theory, EEOC Notice No. 915.002, p. 5 (July 14, 1992). We therefore find
the AJ erred when she determined these statements were not evidence of
a discriminatory motive.
Furthermore, in finding no genuine issue of material fact, the AJ credited
the agency's position that complainant was needed at the USS Kennedy.
However, statements contained in the Report of Investigation from
the Foreman indicate that the facility could have gotten by without
complainant. In light of this and other statements, we find complainant
raised a genuine dispute as the agency's reasons for not selecting him
for the TDY.
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 agency shall submit to the Hearings Unit of the Philadelphia EEOC
District 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 (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 (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
06/27/01
Date