0120092753
07-01-2011
Roberta J. McAlman, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (National Park Service), Agency.
Roberta J. McAlman,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 0120092753
Hearing No. 520-2008-00468X
Agency No. NPS-07-0057
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 20, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as an Information Technology (IT) Specialist at the Agency's Gateway National Recreation Area in Staten Island, New York.
On January 17, 2007, Complainant filed a formal EEO complaint alleging that she was subjected to harassment and a hostile work environment by the Chief of Information Technology (S1), who was her first level supervisor, on the bases of her race (African-American), sex (female), color (black), and in reprisal for prior protected activity. Complainant provided the following examples of the alleged discriminatory harassment:
1. on October 19, 2006, she received a notice of proposed removal;
2. on October 19, 2006, she was placed on a Performance Improvement Plan (PIP), and was given an unsatisfactory performance rating;
3. on July 19, 2007, S1 made her feel uncomfortable by pacing and standing over her while she was responding to a telephone caller;
4. on July 27 - 31, 2007, and in October 2007, S1 continually harassed her with regard to her work assignments;
5. on September 28, 2007, she was coerced to consent to a background investigation even though she had a security clearance that was effective until 2011;
6. on October 12, 2007, S1 continued to harass her with regard to her time and attendance;
7. on September 7, 2007, S1 responded to her unfavorably with regard to her Individual Development Plan (IDP), and she was placed on another PIP on October 25, 2007;
8. on December 18, 2007, she received a proposed suspension and subsequently was suspended without pay on January 14 - 18, 2008; and
9. her duties were changed from an IT Specialist to inventory assignments only.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for a decision without a hearing. Over Complainant's objections, on March 25, 2009, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ found that the evidence gathered during the investigation established the following undisputed facts. On December 13, 2005, S1 gave Complainant an unsatisfactory rating, failing her on two critical elements of her performance plan. As a result, on March 16, 2006, Complainant was placed on a 90-day Performance Improvement Plan (PIP). On October 19, 2006, S1 issued a memorandum to Complainant informing her that she had not performed successfully during the PIP period, and proposing her removal for unsatisfactory performance. On July 9, 2007, S1 issued notified Complainant that he had rescinded the PIP because too much time had elapsed since his original proposal and the fact that no final decision had been made. 1
On June 28, 2007, Complainant was placed on a new PIP. On July 18, 2007, S1 realized that Complainant, who was assigned to work on the Help Desk on certain days of the week, was coming in late and leaving early every day, leaving the Help Desk unattended. He met with Complainant and they signed an agreement detailing Complainant's tour of duty.
On August 10, 2007, S1 provided Complainant with a progress review under the PIP outlining performance deficiencies in three of five critical elements. On September 14, 2007, S1 provided Complainant with another progress review under the PIP outlining performance deficiencies in four of five critical elements.
In late September 2007, all the members of the Office of Information Technology, including Complainant, were notified by the Chief of Human Resources that their risk designation level had changed and they all needed enhanced background investigations. All employees were directed to complete the required paperwork for the background investigations by October 12, 2007. Pursuant to this process, on October 10, 2007, S1 ordered Complainant to complete background paperwork and have her fingerprints taken. All other employees in the office complied with this request. Complainant refused because she believed she already possessed a higher clearance. On October 12, 2007, S1 directed Complainant to give a copy of her clearance to a designated Human Resource Specialist by no later than October 15, 2007. On January 8, 2008, Complainant gave the required security clearance information to Human Resources.
On October 25, 2007, S1 gave Complainant an unsatisfactory performance rating in four out of five critical elements. Complainant was placed on a PIP for an additional 60 days.
After Complainant completed the 2007 PIP, he assigned her to work with himself and another employee to conduct the annual inventory of sensitive property (computers, monitors, printers, laptops, and digital cameras). Complainant had also been assigned to work on the inventory for the several prior years.
Based on these facts, the AJ found that Complainant did not establish a prima facie case of hostile environment harassment based on race, sex, color and reprisal. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment. The AJ determined that the fact that Complainant was struggling with her work performance does not transform her allegations into an actionable claim of harassment. The AJ noted that it was Complainant's unsatisfactory performance which led to an Agency determination to give her an unsatisfactory performance evaluation in 2006, and subsequently placed her on the various PIPs to improve her performance. Moreover, the AJ noted the incidents pertaining to time and attendance issues and security clearance were caused by Complainant not following the Agency's policy and procedures. Accordingly, the AJ determined that Complainant had failed to prove discrimination.
The Agency issued its final order adopting the AJ's decision. Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
As this is an appeal from an Agency's decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). 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. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider summary judgment 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).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond 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). "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). 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, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. � 1614.109(d) and (e).
After careful review of the record and consideration of the arguments presented on appeal, the Commission finds that summary judgment was inappropriate in this case. Genuine issues of material fact exist that can only be resolved through a hearing. There are significant unresolved issues surrounding the nexus between the raised bases and the alleged discriminatory events. While the AJ has outlined the chronology of events as undisputed facts, the reasons behind the described events clearly remain in dispute. While not expressly stated in his opinion, it appears that the AJ used the affidavits given during the investigation to resolve those disputes in favor of the Agency. During the investigation, S1 proffered legitimate reasons for each of the actions taken against Complainant. However, Complainant disputes each of those reasons and argues that S1's determinations about her performance were highly subjective and actually motivated by discriminatory factors. She argues that she had performed successfully as an IT specialist for over twenty years, including eight years with the Agency, and has a college degree in computer information systems. Complainant argues that her many years of experience call into question S1's credibility in finding she did not possess the knowledge, skills and abilities to perform as an IT Specialist and needed to be removed from employment. Complainant argues that S1 wanted to get rid of her in order to help a named Help Desk Coordinator (C1; white male) to become an IT Specialist, and as a consequence of this intent, demoted Complainant from IT duties. According to Complainant, C1 was a maintenance worker with no experience as an IT, and had been a Help Desk Coordinator for only one year. She also argues that S1 failed to follow proper procedures in issuing various performance and disciplinary actions, adding to their suspicious nature. For example, she asserts that the suspension he issued was more severe than called for under the Agency's progressive discipline procedures.
The nature of the debate on these matters is primarily one of the credibility of S1 and Complainant. Such credibility findings can only be resolved through determinations made during a hearing. Therefore, we conclude that the AJ's finding of no discrimination could not be reached except by conducting a "trial by affidavit" in order to resolve significant issues of conflicting evidence, an action that is not appropriate in a grant of summary judgment. In light of the disputed issues of material in this matter, issuance of a decision without a hearing was not warranted under 29 C.F.R. � 1614.109(g).
The Commission VACATES the Agency's final action and REMANDS the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's New York District Office the request for a hearing, as well as the complaint file, within thirty (30) 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 New York District Office. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 1, 2011
__________________
Date
1 During the investigation, S1 asserted that no final decision had been made on his proposal because the Administrative Officer, who needed to review the proposal, died, and by the time there was a replacement, too much time had elapsed.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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