01993439
09-26-2001
Rowena Hardrick, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.
Rowena Hardrick v. Social Security Administration
01993439
September 26, 2001
.
Rowena Hardrick,
Complainant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01993439
Agency No. SSA 0406-97
Hearing No. 120-98-9533X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges she
was discriminated against on the bases of race (Black) and sex (female)
when she was subjected to continued harassment by a coworker, from July
or August 1996, which created a hostile work environment.
The record reveals that complainant, a secretary in the Office of
Program and Integrity Reviews at the agency's Baltimore, Maryland,
facility, filed a formal EEO complaint with the agency on May 21,
1997, alleging that the agency had discriminated against her as
referenced above. Complainant and the alleged harassing co-worker
(CW) had a landlord-tenant relationship, outside the agency, which
entered into litigation in District Court. Complainant states that as
a result of this litigation, CW began harassing her in the workplace.
The specific incidents of harassment complainant alleges include: on two
separate occasions having personal legal documents left on her desk where
others could read them; CW returning from a court date and telling other
employees that he just �screwed� her in court; finding photos on her desk
overturned; and CW approaching her in the hallway, leaning over toward
her face and �laugh[ing] viciously.� Complainant states she approached
management regarding the harassment but the agency took no action.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report 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 complainant
failed to established a prima facie case because she could not show
that any of the discriminatory actions alleged were on account of
race or sex. The AJ states that none of the incidents complained of
had any overt indicia of racist or sexist motivation, thus there was
no direct evidence of discrimination. Further, the AJ concluded that
complainant's allegations do not constitute race or sex-based harassment
in that complainant did not show that any similarly situated employees,
outside her protected classes, were treated more favorably than she.
In the FAD, the agency adopted the AJ's finding on no discrimination.
On appeal, complainant argues that the AJ erred in issuing summary
judgment as there are genuine issues of material fact still at issue.
The Commission's regulations allow an AJ to issue a decision without a
hearing when she finds that there is no genuine issue of material fact
or credibility after applying the proper legal analysis. 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 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.
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 were no genuine issues of material fact in
this case. The record contains a number of conflicting statements from
complainant and CW, as well as from management officials. There are
also conflicting accounts as to whether the agency took any corrective
action when complainant reported the alleged harassment. Further, the
record contains statements made by CW during his interview which may
lend credence to complainant's claims. These are precisely the type
of issues that are appropriate for cross-examination, elaboration and
credibility determinations.
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(c) and (d). 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, there are unresolved issues which require
an assessment as to the credibility of the various witnesses. Therefore,
judgment as a matter of law for the agency should not have been granted.
After a careful review of the record, the Commission REVERSES the agency's
final decision and REMANDS the matter to the agency in accordance with
this decision and the ORDER below.
ORDER (E0900)
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.
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
September 26, 2001
__________________
Date