01995482
02-14-2001
Perviz Walji, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Perviz Walji v. U.S. Department of Agriculture
01995482
February 14, 2001
.
Perviz Walji,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01995482
Agency No. 96-0823, 97-0765
Hearing No. 100-98-8131X; 100-98-8132X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her complaint of unlawful employment discrimination in
violation of the Civil Rights Act of 1964, as amended, (Title VII)
42 U.S.C. �2000 e, and the Age Discrimination in Employment Act
(ADEA) 29 U.S.C. � 621.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges she was discriminated against on the basis of race
(Asian/Indian), national origin (East Indian), age (8/18/47), gender
(female), and reprisal when:
Her request for promotion was denied;
Her duties changed and she was given lower graded duties to perform;
Her working conditions were poor;
Her position was terminated;
She was not selected for positions which became available.
For the following reasons, we VACATE the agency's final decision and
REMAND the complaint for a hearing.
ISSUE PRESENTED
Whether the Administrative Judge's grant of summary judgment in favor
of the agency, was appropriate.
Background
The record reveals that during the relevant time, the complainant
was employed by both the Department of Agriculture (USDA) and the
U.S. Agency for International Development (USAID) as a Program Technical
Resource Specialist GS-11. She worked at the USDA's Development Resource
Division/International Cooperation & Development, Foreign Agriculture
Service, but as a Schedule B employee she was assigned to work for the
USAID under a Resource Support Services Agreement (RSSA).
Believing she was a victim of discrimination, the complainant sought EEO
counseling and, subsequently, filed a formal complaint on May 15, 1996 and
July 15, 1997. At the conclusion of the investigation, complainant was
provided with a copy of the investigative file and requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination.
The AJ concluded that the complainant failed to establish a prima facie
case of discrimination on any basis regarding her claim that she was
treated less favorably with respect to her working conditions. She
found that other employees were subjected to a cold work area and that
the complainant had been moved to a different location in response to
her complaints. She further found that the complainant failed to show
that discrimination played a part in any of the other actions taken by
the agency.
The AJ also concluded that the complainant's claim that her duties
were reduced was not due to discrimination but to the fact that it was
a way to keep the complainant employed by giving her the duties of an
employee who had recently left. <2> With respect to the complainant's
claim that the agency's failure to promote her was due to discrimination,
the AJ concluded that the agency credibly stated that her position was
targeted for elimination and that her supervisor's assignments were
efforts to retain the complainant in her position.
The AJ dismissed sua sponte the complainant's claim of discriminatory
termination as untimely raised. She found that the complainant was
terminated in January 1997 but did not contact an EEO counselor until
June 5, 1997.
The agency's final decision adopted the AJ's decision.
On appeal, the complainant contends, among other things, that the AJ erred
in concluding that she had dropped her claim relating to the change in
her duties and in her conclusion that she was not similarly situated
to the employee selected for the Energy and Environmental Technology
Specialist position. She contends that she was in the same branch as
that which hired for this position. The complainant contests the timing
of the agency's hiring for the position which she placed as occurring
in 1997 and not in 1996. She also contends that she made clear to
the appropriate hiring officials that she wanted to be considered for
vacancies which was all that was required of current employees to apply
for the position. She claims that her �application� was turned down
on several occasions because she was informed that there would be no
hiring. Finally, the complainant disputes the AJ's conclusion that her
termination claim was untimely raised, although she did not address why
she thought it was timely raised. She also disputed the dismissal based
on the fact that the agency had accepted the claim for investigation
without raising the issue.
The agency submitted no additional comments on appeal.
ANALYSIS AND FINDINGS
As a preliminary matter, we observed that the agency invoked the
argument that its actions were only dictated under contract by U.S.AID and
therefore, it should not be held responsible for the complainant's claims.
We have spoken on the application of Title VII where one employment
entity merely places employees with another. EEOC Enforcement Guidance:
Application of EEO Laws to Contingent Workers Placed by Temporary
Employment Agencies and Other Staffing Firms, No. 915.002, December
3, 1997 (Guidance). In the case at bar, the USDA acted as what can
be termed, a staffing firm to USAID when it placed the complainant
pursuant to the Resources Support Services Agreement (RSSA). As we
stated in this Guidance, the two employment entities which exercised
control over the complainant's employment in varying degrees had joint
responsibilities as joint employers under Title VII to comply with the
requirements of the non-discrimination statutes. Id. Here, the record
established that both agencies shared control over the complainant's
employment. USDA evaluated the complainant's performance whereas,
USAID decided to terminate the complainant's employment. USAID also
decided which Schedule B employees it wanted to retain and or rehire.
Both agencies contend that the other was responsible for determining the
complainant's duties. In all, the record evidenced that each agency had
some measure of control over the complainant's employment. Therefore,
the actions of both agencies must be evaluated in this case.
We also find that the AJ erred in dismissing the complainant's
termination claim as untimely raised. The Commission has held that the
time requirements for initiating EEO counseling could be waived as to
certain claims when the complainant has alleged facts which constitute a
continuing violation; that is, a series of related discriminatory acts,
one of which fell within the time period for contacting an EEO Counselor.
See Reid v. Department of Commerce, EEOC Request No. 05970705 (April 22,
1999); McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986).
It is necessary to determine whether the acts are interrelated by a
common nexus or theme. See Vissing v. Nuclear Regulatory Commission, EEOC
Request No. 05890308 (June 13, 1989); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990); Maldonado v. Department
of the Interior, EEOC Request No. 05900937 (October 31, 1990).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
In this regard, the first complaint concerned the agency's failure to
promote the complainant and its downgrading of the complainant's duties.
The agency's purported reason for undertaking both actions was that
it contemplated terminating the complainant's employment. Although
technically, the complainant did not raise the issue to an EEO counselor
within the regulatory time period, the facts suggest that the agency's
actual termination of the complainant in January 1997 was interrelated
with the incidents raised in the first complaint and should have been
considered as such by the AJ.
Summary Judgment
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 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 the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d 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, we find that the AJ erred
when she concluded that there was no genuine issue of material fact
in this case. A close examination of the record indicates that the
complainant offered sufficient evidence on each of her claims to raise
an inference of race, national origin, age and reprisal discrimination.
More specifically, the complainant produced enough evidence on the issue
of disparate working conditions to create an inference of discrimination.
She testified that she was subjected to more severe working conditions
which was supported by at least one other co-worker who testified
that the complainant's work area was colder than that of anyone else.
Furthermore, the agency admitted that a summer intern was given an
office when the complainant did not have one and that the complainant
shared space with employees of lower grades. In addition, the agency's
reasons for why the complainant could not use the resource room should
have been the subject of credibility findings where the complainant
directly contradicted the agency's contention that she did not need
to use the equipment in the resource room by naming the projects which
required that she use specialized equipment. For this reason we find
the AJ erroneously made a credibility finding in the agency's favor.
The record also discloses enough evidence to raise a question of fact
on the issue of the agencies' failure to promote the complainant.
The administrator of the RSSA contracts described in detail the steps
she took in conjunction with the personnel office to convert other
Schedule B employees favored by USAID officials to extend them past
the terms of their appointments. These employees who were not members
of the complainant's protected group<3> were given additional duties
along with promotions during the same time the complainant�s position
was being targeted for elimination and her duties were reduced.
Moreover, if, as the agency contends, positions were advertised during
both 1996 and 1997, there is a question whether the agency experienced a
reduction in force, as it contended. The agencies'<4> advertisement of
new positions that the complainant contends included positions similar to
her own, also calls into question its contention that it had to reduce
the complainant's duties and terminate her position. On the issue of
the complainant's termination, the record reflects that the complainant
was the only one to be terminated which is enough, in our view, to raise
the inference of discrimination.
We also conclude that the complainant produced enough evidence to
raise the inference that she had applied for open positions but was
not considered due to discrimination. On this issue, the complainant
testified that she expressed her interest to those employees responsible
for hiring. A close examination of the language used in the agency's
announcement for various open positions indicates that the agency required
�Qualified, interested FAS staff [to] contact the listed ICD program
officer to express interest/be considered for a listed �new reimbursable
or Schedule B assignment.� This language raises the inference that simply
expressing interest verbally as the complainant had done was sufficient
and that others applied in this way. The refusal of the agency to
then consider the complainant for the positions in which she expressed
interest raises the inference that she was being subjected to different
application procedures than other employees and that the agency's reasons
for not considering her were a pretext for discrimination.
Finally, we conclude that the complainant established a prima facie case
of reprisal because she established an inference of a causal connection
between her filing of an EEO complaint in May 1996, the termination of
her employment in 1997 and the agencies' refusal to consider her for
another position. To further support the inference of discrimination,
we note the record indicated that the complainant was the only employee
who had been terminated and had filed an EEO complaint.
The Commission has stated in no uncertain terms, that truncation of
the hearing 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.�
See 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 sum, the record before us
contains unresolved issues which require an evaluation of the credibility
of witnesses and a weighing of the evidence. Therefore, we conclude that
the AJ erred in granting summary judgment and that this matter should
be set down for a hearing on all of the complainant's claims.
CONCLUSION
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 Hearings Unit of
the EEOC in accordance with the ORDER below.
ORDER
The complaint is hereby ORDERED remanded to the Hearings Unit of the
Washington Field Office, EEOC, for scheduling of a hearing in an
expeditious manner. The AJ should consider whether the USAID needs to
supplement the record with additional evidence in light of our ruling
that it shares EEO responsibility in this case. The agency is directed
to submit a copy of the complaint file to the Washington Field Office
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
as directed. 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 (K0900)
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)(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 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).
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
2/14/01
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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2The AJ stated in her Findings and Conclusions that the complainant
dropped her claim surrounding the change in her duties but then considered
the claim in her decision. The complainant disputes that she dropped
the claim at all.
3At least one employee who was �converted' and promoted was also female
which effectively undermines the complainant's argument that the agency's
reasons were pretextual.
4We are unable to decipher which agency advertised open positions as
both agencies engaged in finger pointing but we leave the determination
to the AJ during the hearing.