Twylah Jagielo, Complainant,v.Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMar 15, 2005
01a44045 (E.E.O.C. Mar. 15, 2005)

01a44045

03-15-2005

Twylah Jagielo, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.


Twylah Jagielo v. Department of Commerce

01A44045

3/15/05

Twylah Jagielo,

Complainant,

v.

Carlos M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A44045

Agency No. 01-53-00127

Hearing No. 100-A3-7235X

DECISION

Complainant timely initiated an appeal from a final agency order

concerning her 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. For the following reasons, the Commission VACATES

the agency's notice of final action and REMANDS the matter for a hearing.

I. BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a former Training Program Coordinator with the Department of Commerce

at the agency's Bureau of Economic Analysis. Complainant sought EEO

counseling and subsequently filed a formal complaint on August 15,

2001, alleging that she was discriminated against on the bases of race

(African-American), national origin (Hispanic), sex (female), and reprisal

for prior EEO activity when:

(1) on December 19, 2000, she learned that she was not selected for a

Program Analyst position;

since January 2001, when the Foreign Training Program (FTP) was

discontinued, complainant has been limited to support staff level

assignments and her supervisor has denied her request for work in the

Economics or Administrative Specialist series, substantive participation

in newsletters and other professional level meetings and activities;

complainant discovered that while in the FTP she was performing the

same work as two males who are paid more than she;

complainant was not invited to attend or participate in any meetings

related to the restructuring of the FTP;

complainant was denied training;

on July 31, 2002, complainant's supervisor told her participation in

a pending class complaint would not get her a promotion or any other job;

the agency discontinued the program to which she is currently

assigned;<1>

she was directed to relocate her office space; and

on January 25, 2002, the Chief of the Income Branch, removed her personal

files relating to her EEO complaints.

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's decision consisted of one line,

granting the agency's motion for summary judgment. The agency's final

action implemented the AJ's decision.

On appeal, complainant contends that the AJ's failure to justify her

decision with findings of fact and conclusions of law denied complainant

due process.

The agency argues that complainant failed to establish a prima facie case

of discrimination on any of the alleged bases for any of her allegations.

Alternatively, the agency states its nondiscriminatory reasons for the

alleged employment actions and argues that complainant has failed to

prove pretext.

II. LEGAL STANDARD

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the

Navy, EEOC Request No. 05950351 (December 14, 1995).

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 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." 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).

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, in

appropriate instances, to examine and cross-examine witnesses." See Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(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).

III. ANALYSIS

After a careful review of the record, we find that the AJ erred when

she granted the agency's motion for summary judgment because genuine

issues of material fact exist in the record and the record requires

further development.

When the facts are viewed in a light most favorable to the complainant,

the record supports a finding of discrimination. Complainant alleged

evidence that both her first-line and second-line supervisors

while working in FTP intended to retaliate against her for prior

EEO activity. Complainant alleged direct evidence of her first-line

supervisor's discriminatory intent. She averred that he told her that her

participation in a class action suit against the agency would prevent her

from receiving favorable treatment, such as promotions. Complainant,

furthermore, presents circumstantial evidence that her second-line

supervisor at FTP had discriminatory animus against her based on reprisal.

She avers that her second-line supervisor, the Chief of the Income Branch,

improperly sifted through her personal files and removed complainant's

personal EEO documents from her office in the presence of complainant and

over her objections. The record reveals further that complainant's FTP

first-line and second-line supervisors were either directly involved or

would have had a strong influence over the negative employment actions

alleged by complainant. These alleged facts, if proven, could establish

a prima facie case of retaliation.

The agency denies that complainant's first-line supervisor made

the alleged statement. The agency, furthermore, contends that while

complainant's second-line supervisor moved several boxes in the process of

helping complainant move to a new office he did not remove any documents

from complainant's possession.

Genuine issues of material fact therefore exist. A hearing is required

to cross-examine complainant and her two supervisors, to assess their

credibility, further develop the record and weigh the evidence.

IV. 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 reverses the

agency's final action and remands the matter to the agency in accordance

with this decision and the Order below.

ORDER

The agency shall submit to the Hearings Unit of the EEOC's Washington

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. 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

___3/15/05_______________

Date

1Complainant specifically alleges that

following the closure of FTP, she was relegated to an administrative

position not commensurate with her qualifications and without career

enhancing value. Report of Investigation (ROI), Ex. 35, pg. 7.