Petuniav.Rosier, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionDec 18, 2007
0120060524 (E.E.O.C. Dec. 18, 2007)

0120060524

12-18-2007

Petunia V. Rosier, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.


Petunia V. Rosier,

Complainant,

v.

Michael B. Mukasey,

Attorney General,

Department of Justice,

(Federal Bureau of Investigation),

Agency.

Appeal No. 0120060524

Hearing No. 100-2005-0139X

Agency No. F-04-5821

DECISION

On October 31, 2005, complainant filed an appeal from the Administrative

Judge's (AJ) decision on 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.,

and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq. The appeal is deemed timely and is accepted pursuant to 29

C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES

the AJ's decision and REMANDS this complaint for further processing.1

On November 5, 2003, complainant filed an EEO complaint alleging

that she was discriminated against and harassed on the basis of race

(African-American) when: (1) her supervisor (S1; white) failed to train

or recognize her as the Assistant Team Captain (ATC) upon her arrival

to the agency's Quick Response Team (QRT); (2) S1 did not communicate or

interact with her on an official basis and undermined her authority; (3)

her work performance became the subject of car pool discussions between

S1 and the Unit Chief (UC; white); (4) she was temporarily removed as

the ATC in order to receive training while a White female was chosen

as the Team Captain of a second team; (5) she received a "mammie towel"

imprinted with a picture of a Black woman and two (2) Black children as

a Christmas gift from her UC, while a White woman received a "country"

towel.2

Complainant also alleged discrimination and harassment due to her race,

disability (back and neck impairments; stress), color (light skin) and

retaliation for prior EEO activity when: (1) on or about February 13,

2004, her UC denied her request to be transferred out of the team; (2)

on or about February 4, 2004 and April 6, 2004, she was not afforded

travel special assignment opportunities to the agency's Miami Division

or the Los Angeles Division; (3) on or about March 2, 2004, inappropriate

comments regarding the EEO process were made by S1 and a coworker during

a meeting she attended; (4) during a meeting with her UC on March 16,

2004, her UC wanted to take notes although this was not her practice

in previous meetings; and (5) since February 10, 2004, S1 and her UC

continue to exclude her from performing her duties as the ATC; do not

notify her of meetings to ensure her attendance and do not permit her

to conduct administrative work for the team.

At the conclusion of the investigation, 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 timely

requested a hearing. The AJ assigned to the case determined pursuant

to the agency's Motion for a Decision Without a Hearing (Motion) that

the complaint did not warrant a hearing and over the complainant's

objections, issued a decision without a hearing on September 19, 2005.

When the agency failed to issue a final order within forty days of receipt

of the AJ's decision, the AJ's decision finding that complainant failed

to prove that she was subjected to discrimination as alleged became the

agency's final action pursuant to 29 C.F.R. � 1614.109(i).

The AJ found that the agency's Motion correctly stated the material facts

and applicable legal standards, such that there were no genuine issues

of material fact or credibility which required resolution at a hearing.

As such, the AJ found that summary judgment in favor of the agency was

appropriate for the reasons stated in the Motion. The AJ also stated

that the agency's Motion indicated that complainant failed to rebut the

agency's articulated nondiscriminatory reasons for its actions, namely:

(1) complainant was found to have poor performance issues; (2) agency

management engaged in actual instances or attempts to provide complainant

with training; (3) complainant made several trips to Los Angeles; (4)

management's admittedly racially insensitive gift(s) were not motivated

by discriminatory animus and did not create a hostile work environment.

The AJ further found that complainant failed to establish that she was

a qualified individual with a disability under the Rehabilitation Act.

As such, the AJ granted the Motion. As noted, the agency failed to

issue a final order within 40 days of the issuance of the AJ's decision.

On appeal, complainant alleged that: (1) the AJ erroneously concluded

there were no genuine issues of material fact or credibility which

required a resolution at hearing; (2) the AJ weighed the evidence of

record without observing the credibility of the witnesses at hearing;

(3) the AJ failed to consider the facts in a light most favorable to her;

(4) while the AJ conceded that the "mammie towel" as described above was

a racially insensitive gift, he completely discounted the evidence; (5)

the AJ found that complainant's Statement of Facts in Material Dispute

as constituting conclusory assertions, but he failed to explain how

the facts were conclusory; (6) the AJ improperly prevented complainant

from receiving due process and an opportunity to develop the record by

denying her requests for discovery. The agency responded to complainant's

appeal, requesting that the Commission affirm the AJ's decision without

a hearing.

In rendering this appellate decision we must scrutinize the AJ's legal

and factual conclusions, and the agency's final order adopting them,

de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on

an appeal from an agency's final action shall be based on a de novo

review . . ."); see also EEOC Management Directive 110, Chapter 9,

� VI.B. (November 9, 1999). (providing that an administrative judge's

"decision to issue a decision without a hearing pursuant to [29 C.F.R. �

1614.109(g)] will be reviewed de novo"). This essentially means that we

should look at this case with fresh eyes. In other words, we are free

to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,

factual conclusions and legal analysis - including on the ultimate fact

of whether intentional discrimination occurred, and on the legal issue

of whether any federal employment discrimination statute was violated.

See id. at Chapter 9, � VI.A. (explaining that the de novo standard of

review "requires that the Commission examine the record without regard to

the factual and legal determinations of the previous decision maker,"

and that EEOC "review the documents, statements, and testimony of

record, including any timely and relevant submissions of the parties,

and . . . issue its decision based on the Commission's own assessment

of the record and its interpretation of the law").

We must first 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 the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

The Commission determines that, in the instant case, genuine issues

of material fact are in dispute. In this regard, the record contains

evidence that there were several incidents which could have constituted

a hostile work environment. We note that the record demonstrates that

complainant filed an EEO complaint in November of 2003. One month

later, in December of 2003, the UC gave complainant the gift of a

"mammie towel," an event which the AJ himself found was an "admittedly

racially insensitive gift." Given the proximity in time between the EEO

complaint and complainant's receipt of the "mammie towel," and given

the race of the UC and other perceived racially insensitive comments

made by S1 which were not challenged by the UC (i.e., addressing Black

employees as "you people" and making condescending comments about her

use of language), we concur with complainant's argument that the UC's

intent behind giving the gift is suspect and should have been explored

at a hearing.3 Further, we note that the AJ summarily concluded that

complainant failed to rebut the agency's statement that the gift of the

"mammie towel" was not racially motivated. However, we find no basis

upon which the AJ made this finding, as there has been no evidence of

record developed regarding any reason(s) other than racial discrimination

that complainant, as a Black employee, received the "mammie towel,"

which the AJ conceded was racially insensitive, and a White employee

received a racially neutral towel as a Christmas gift. We find the UC's

explanation of "innocent yet critical error" in giving the "mammie towel"

to complainant and other Black employees to be a genuine issue of material

fact for which credibility determinations at hearing are necessary by

the AJ. We further find that complainant's receipt of the "mammie towel"

may be harassment sufficiently severe or pervasive so as to constitute

a hostile work environment based on her race; however, the AJ summarily

dismissed this allegation by complainant without further discussion.

In addition, we find there is a dispute regarding whether management at

the facility (specifically, the UC) adequately addressed the treatment

of complainant by S1. Complainant alleged that she was subjected to a

hostile work environment in both of her allegations of discrimination.

However, the AJ summarily found that management's behavior did not rise

to the level of creating a hostile work environment. The record indicates

that when complainant raised the issue of her discriminatory and harassing

treatment by S1, the UC did not address her concerns. Essentially, we find

that there are genuine issues of material fact regarding the response of

the UC to complainant's allegations, and the reason(s) the UC was allowed

by the agency to address and investigate complainant's allegations of

harassment and discrimination made in her first EEO complaint after the UC

had been responsible for giving complainant a racially insensitive gift.4

The Commission further finds there is a dispute in the record over whether

complainant in fact received the training she requested, and whether

this training was necessary for complainant to perform her position.

Finally, we note that there is a dispute in the record over the reasons

for management's denial of a transfer from the QRT to another team so she

could get away from the allegedly racially hostile environment. We concur

with complainant's allegation that the rationale of S1 for denying the

transfer is legitimately in dispute, given the other allegations of

discrimination and harassment by agency management in the record.

In light of the disputed issue of material fact on the instant record,

issuance of a decision without a hearing was not warranted under 29

C.F.R. � 1614.109(g). Therefore, the Commission VACATES the AJ's finding

of no discrimination and REMANDS the matter for a hearing in accordance

with this decision and the ORDER below.

ORDER

The agency shall submit to the Hearings Unit of the Washington Field

Office the request for a hearing within fifteen (15) calendar days of the

date this decision becomes final, regarding the matter raised in claim

(3). The agency is directed to submit a copy of the complaint file to

the Hearings Unit of 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 to the Hearings

Unit of the Washington Field Office. Thereafter, the Administrative

Judge in the Washington Field Office shall issue a decision on claim

(3) 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).

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

___12/18/07________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 According to complainant, the towel she received "had images of two

Black children with white circled lips and a Black lady with white

circled lips on it." Complainant also said that written on the label

were the words, "mammie towel."

3 We note that complainant did not allege retaliation as a basis of

discrimination with regard to her receipt of the "mammie towel," but

she alleged that incident was racial discrimination and was part of a

pattern of harassment due to a hostile work environment.

4 The record indicates that after complainant informed the UC of the

allegedly harassing behavior by S1, the UC stated, apparently in jest,

that S1 was "guilty" and laughed; complainant then questioned the UC

about her ability to be fair to her when she also was supervising S1, a

personal friend. Complainant alleged that the UC protected and insulated

S1 in derogation of complainant's rights.

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0120060524

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120060524