01A15098
03-26-2002
Terri Haynes, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Terri Haynes v. Social Security Administration
01A15098
March 26, 2002
.
Terri Haynes,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A15098
Agency No. 99018055A
Hearing No. 280-AO-4014X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency order
concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
VACATES the agency's final action and REMANDS the complaint for a hearing.
ISSUE PRESENTED
Whether the Administrative Judge (AJ) properly issued a decision without
a hearing granting summary judgment to the agency.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
in a temporary position as a Service Representative (GS-962-07) at the
agency's District Office, Independence, MO facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on February
4, 2000, alleging that she was discriminated against on the basis of
disability (chronic back and leg problems) when, on January 29, 1999,
complainant was terminated because she was not converted to the permanent
position of Service Representative (GS-962-07).
Complainant alleges that during her initial interview for the temporary
position she told the District Manager (DM) that she had a disability
and could not lift anything weighing over twenty pounds. On February 3,
1997, complainant was hired and started work in her temporary position.
Complainant's first line supervisor was the Assistant District Office
Manager (AD). During her employment complainant went into the hospital
with serious back pain. Complainant states that while in the hospital
she spoke to DM, her second line supervisor, and was told her temporary
position was extended to January 29, 1999. Complainant states that
during her employment DM approved sick leave and advanced sick leave,
and AD recommended her for leave donation. Complainant alleges that
her leave slips referenced back pain.
DM, in her affidavit, states that she became aware of complainant's back
problem after complainant had started work. Further DM states that she
believes that AD called complainant while complainant was in the hospital.
AD states in her affidavit that she became aware of complainant's
disability a few months after complainant's employment began.
On December 10, 1998, the AD came and got complainant and they went to
DM's office. Once there, DM advised complainant that another co-worker
(no disability) was being chosen and not complainant for the available
permanent position. It is the complainant's affidavit testimony and the
affidavit testimony of DM and AD as to what was said at this meeting which
requires the Commission to reverse and remand the agency's final order.
Complainant testified that DM stated in the meeting that the co-worker
was chosen because of the co-worker's past agency experience and because
complainant's back required complainant to find a job closer to home.
DM testified that she did not tell complainant that because of her back
she needed to find a job closer to home. AD testified that complainant
was not told she was not converted to a permanent position because of
her disability.
AD also testified that complainant required a lot of supervisory time;
that she asked a lot of questions; and that she needed to be counseled
for excessive talking at work and the level of her conversations.
DM testified that she converted the co-worker to permanent because the
co-worker required little supervision to perform her duties; that the
co-worker was a self-starter; and because of the co-worker's prior
agency experience. DM testified that complainant required a lot of
supervision and did not have the agency experience that the co-worker
had as a Benefits Authorizer.
At the conclusion of the investigation, complainant was provided 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 analyzed the complaint under the
McDonnell Douglas standard. The AJ assumed arguendo that complainant is
disabled and that the agency articulated legitimate, nondiscriminatory
reasons for its action in not selecting complainant to be the permanent
employee. The AJ also found that complainant was treated differently than
the co-worker. The AJ found that complainant had presented no evidence
of pretext and concluded that complainant had failed to establish that
she was discriminated against when she was not converted to permanent
employment. The agency's final action implemented the AJ's decision
CONTENTION ON APPEAL
Complainant did not file any statement in support of her appeal.
The agency requests that we affirm its final action implementing the
AJ's decision.
ANALYSIS AND FINDINGS
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, summary judgment
is not appropriate. 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.
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).
The complainant testified that DM stated, in part, that because of
complainant's back, complainant needed to find a job closer to home.
Since DM testified that she did not tell complainant that because of
her back she needed to find a job closer to home, and AD testified that
complainant was not told she was not converted to a permanent position
because of her disability, a genuine issue of material fact had been
raised. If complainant's evidence is believed and all justifiable
inferences are drawn in her favor the outcome of the case could be
affected.
By stating that DM attributed the nonselection in part because of her
alleged back disability, the complainant has alleged "direct evidence"
of discrimination which, if true, would change an analysis of the
case from a McDonnell Douglas Corp. analysis to, initially, a �direct
evidence� analysis. TWA v. Thurston, 469 U.S. 111 (1985)(Direct evidence
of discrimination eliminates the need to apply the McDonnell Douglas
Corp. v. Green (411 U.S. 792 (1973) shifting burdens of proof). Direct
evidence of discrimination is �evidence, which, if believed, proves the
existence of the fact in issue without inference or presumption.� Randle
v. LaSalle Telecommunications, Inc., 874 F.2d 563, 569 (7th Cir. 1989).
Direct evidence may be any written or verbal policy or statement made by
the agency 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 at p. 6
(July 14, 1992). The statement that the complainant alleged, if found
to be credible, would meet this standard and be factual evidence that
establishes bias on the part of the agency. If no direct evidence
of discrimination is found in a case, then the analysis set forth in
McDonnell Douglas Corp. v. Green is followed.
The AJ did not address DM's alleged statement. The statement
would establish, without inference or presumption, that disability
discrimination was a factor in complainant's nonselection. Therefore,
the AJ's decision did not address the first step of discrimination
analysis and went directly to the McDonnell Douglas analysis. See Kubick
v. Department of Transportation, EEOC Appeal No. 01973801 (July 9, 2001)
(finding a statement by a supervisor that a complainant was "too crippled
to be selected for a temporary supervisory position" was direct evidence
of discrimination). Furthermore, when discrimination has been proven by
direct evidence, the burden which shifts to the agency is more stringent
than just articulating a legitimate reason for its adverse action.
The agency can rebut such successful direct evidence only by proving by
a preponderance of the evidence that the same decision would have been
reached even absent the discriminatory factor. Bell v. Birmingham Linen
Service, 715 F.2d 1552, 1556-1557 (11the Cir. 1983)
It is recognized that DM denied making the biased statement and AD
collaborated the denial. However, in crediting the denial or in not
considering complainant's statement, the AJ would have had to necessarily
determine whether the direct evidence of discrimination was or was
not believable. Like all evidence, its credibility cannot be presumed
but must be evaluated. Further, if credible, the DM's statement is
sufficiently linked to the adverse action as to constitute direct
evidence that complainant was not selected because of her disability.
Although DM denied making the biased statement, the AJ would have to
determine whether the direct evidence of discrimination is credible.
We note that 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(d) and (e). �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 is an unresolved
issue which requires an assessment as to the credibility of the various
management officials, co-workers, and complainant, himself. Therefore,
judgment as a matter of law for the agency should not have been granted.
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, we find that there is a
genuine issue of material fact in this case concerning whether complainant
was discriminated against when she was not selected for the permanent
position. The Commission VACATES the agency's final order and REMANDS
the matter to the appropriate hearing unit for further action consistent
with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the St. Louis 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 (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
March 26, 2002
Date