0120070885
09-01-2009
Betty Prince, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service), Agency.
Betty Prince,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Indian Health Service),
Agency.
Appeal No. 0120070885
Hearing No. 560-2006-00099X
Agency No. IHS-001-06
DECISION
JURISDICTION
On October 24, 2006, complainant filed an appeal from the agency's
September 14, 2006 final order concerning 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. The appeal is deemed timely1 and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission VACATES the agency's final order and REMANDS the complaint
for an administrative hearing.
ISSUE PRESENTED
Whether genuine issues of material fact remain in dispute on this
complaint which require an administrative hearing?
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a temporary Housekeeping Aide at the agency's Lawton Indian
Hospital in Lawton, Oklahoma. On July 19, 2005, complainant contacted
an EEO Counselor, and filed a formal EEO complaint on October 4, 2005,
alleging that she was discriminated against on the basis of her sex
(female) when on July 19, 2005, she was subjected to harassment when the
Personnel Officer threatened to give her a written warning for missing
a staff meeting on July 18, 2005 (issue 1). Complainant amended her
complaint on October 19, 2005, to claim that she was being discriminated
against in reprisal for prior protected EEO activity arising under
Title VII when, on October 14, 2005, she was notified that her temporary
position as a Housekeeping Aide, WG-3566-3, was not extended, effective
October 28, 2005 (issue 2).2
On October 21, 2005, the agency issued a letter of partial acceptance
and partial dismissal of complainant's complaint. Issue 1 was dismissed
under 29 C.F.R. � 1614.107(a)(1) for failure to state a claim in that
the complainant had not suffered an adverse action. It was noted that
no written warning was ever issued to complainant for missing the meeting
on July 18, 2005.3 Issue 2 was accepted for investigation.
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 agency submitted a motion for a decision without
a hearing on July 17, 2006. Complainant submitted an objection to the
agency's motion on August 2, 2006, and an amendment to her objection
on August 3, 2006. The AJ assigned to the case granted the agency's
motion, and issued a decision without a hearing on September 7, 2006.
The agency subsequently issued a final order on September 14, 2006,
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
In her decision, the AJ adopted the agency's Statement of Undisputed
Facts. She found that complainant worked for the agency as a temporary
Housekeeping Aide and that in March 2004, LS became the Acting
Housekeeping Supervisor, and signed a recusal agreement not to supervise
complainant because they were related. In January 2005, the hospital's
new Administrative Officer (AO) was assigned to supervise complainant.
On October 12, 2005, AO notified complainant that her temporary position
would not be renewed when it expired, stating that she (AO) could not
adequately supervise complainant due to the demands of her position.
The AJ found that complainant was unable to establish a prima facie
case of retaliation because she was unable to show that AO was aware
of her prior protected EEO activity at the time that she decided not to
renew complainant's temporary Housekeeping Aide position. She concluded
that complainant had failed to establish that she had been subjected
to retaliation. The agency's final action implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant argued that her temporary appointment was not
renewed in retaliation for her filing EEO complaints, and was motivated
by sex discrimination in that the Housekeeping Supervisor wanted an
all-male staff. She contends that the different treatment of her began
in March 2004 when LS became her supervisor. She also contends that the
agency's stated reason for not renewing her appointment, that allowing
LS to supervise her would violate the agency's nepotism policy, was an
after-the-fact reason created to cover up the hostile environment created
by LS. Complainant also disputed that LS was actually her brother-in-law.
Complainant argued that a decision without a hearing was inappropriate
and that the case should be sent back to the hearings process to allow
further development of the record and a hearing to be held.
The agency's opposition brief argued that the Commission should affirm its
final order and the decision of the AJ. The agency's position is that
complainant had ample opportunity in the course of the investigation of
her complaint to dispute whether or not LS was her brother-in-law and she
failed to do so, and in fact referred to LS in her own affidavit as her
brother-in-law. The agency also argued that AO reasonably believed LS to
be complainant's brother-in-law, and that the hospital's Human Resources
staff informed her of this fact. Finally, the agency claimed that AO
did not become the Hospital Administrative Officer until January 2005,
was unaware of any of complainant's claimed prior EEO activity, and that
even if she was aware, the agency's legitimate, nondiscriminatory reason
has not been shown to be pretext for discrimination.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
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); Murphy
v. Department of the Army, EEOC Appeal No. 01A04099 (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 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 a decision without a hearing would be appropriate because
there was no genuine issue of material fact in this case. In finding
no discrimination, the AJ stated that there was no evidence in the file
to show that AO was aware of complainant's July 2005 EEO activity,
noting that the investigative file did not have a copy of the formal
complaint or of the EEO Counselor's report. The AJ also relied on
the agency's representations that AO decided not to renew complainant's
temporary appointment because she could no longer adequately supervise
complainant, and that LS was unable to supervise complainant because
they were "related."
We first note that if an AJ finds that the record before them is
inadequately developed or lacking in needed documentation, they have the
ability to order the agency to produce documentation that would aid the
decision maker in evaluating the merits of the complaint. See 29 C.F.R. �
1614.109(a) (once a hearing request is assigned to an AJ, the AJ assumes
full responsibility for the adjudication of the complaint, including
overseeing the development of the record); EEO MD-110, p.7-5. In this
case, where there was a question regarding whether or not AO was aware of
complainant's prior EEO activity, the EEO Counselor's report would be a
vital document to procure, and summary judgment would be inappropriate
at that point. We note that the investigative file submitted to the
Commission on appeal has a copy of a handwritten complaint dated October
4, 2005, although not accompanied by the usual agency formal complaint
"form," and a copy of the EEO Counselor's report, dated September 19,
2005 (at exhibit 4). The EEO Counselor's Report clearly shows that the
EEO Counselor reported that she had discussed complainant's informal
complaint with AO. The date of the EEO Counselor's discussion with AO is
not on the Counseling Report, but had to have occurred between July 20,
2005 (the date of initial contact) and September 19, 2005 (the date the
Counseling Report was completed and mailed to complainant).
"Prior EEO activity" for the purposes of a case of reprisal discrimination
does not just mean that an employee has filed a formal complaint in the
EEO process. Any activity which expresses that employee's opposition
to agency actions which they reasonably believe to be discriminatory, or
any participation in any aspect of the EEO complaint process, including
contact with an EEO Counselor or an informal complaint, qualifies as
prior EEO activity. See EEOC Compliance Manual, Section 8: "Retaliation"
(May 20, 1998). Therefore, AO's knowledge of complainant's EEO Counselor
contact in July 2005 was a material fact which was at issue. Record
evidence indicates that AO may have known of the contact through the
EEO Counselor's attempts to resolve the complaint at the informal level,
although AO testified in her affidavit that she did not. An affidavit from
the union representative (exhibit 12) references testimony complainant
provided at the EEO hearing of the only other female Housekeeping Aide,
who was also terminated. At hearing, it needs to be determined what AO's
understanding of "prior EEO activity" was, and when she became aware of
complainant's EEO activity.
The record also shows that complainant claimed to have filed complaints
in October 2004 and in December 2004 regarding what she believed was
discriminatory behavior on the part of LS. Complainant contended that
LS discriminated against the two females on the Housekeeping staff in
order to force them to resign so that he would have an all-male staff.
Any knowledge that AO may have had about complainant's complaints
(whether in the formal or informal EEO process or oppositional in
nature) would be material facts as well. Although AO did not assume
her Hospital Administrator position until January 2005, she was a member
of the hospital staff in the Finance Department in 2004 and presumably
did not come to her position as a "blank slate." The establishment of
facts regarding AO's knowledge about complainant's prior EEO activity
will necessarily impact complainant's ability to show a prima facie case
of reprisal discrimination.
The agency's legitimate, nondiscriminatory reason for not renewing
complainant's temporary appointment was AO's claim that she could no
longer adequately supervise complainant, and that LS was unable to
supervise complainant because they were "related." Affidavit testimony
in the record before us is that LS signed a recusal agreement in March
2004 not to supervise complainant because they were related. A copy of
that agreement is not in the record. Complainant's arguments on appeal,
and in her opposition to summary judgment, indicate that she was unaware
of such a recusal agreement, had never seen such a document, and that
for all intents and purposes, she was supervised by LS from March 2004
until approximately August 2005.
When AO informed complainant that she would not be renewing complainant's
temporary appointment, AO testified that she told complainant it was
because she could no longer adequately supervise complainant, and that
all housekeeping staff would be reporting to one supervisor, namely LS.
Complainant testified that she was told by AO that her non-renewal
was because she had refused to carry out tasks given to her by LS.
Her statement on appeal indicates that she was not informed that her
termination was due to the agency's nepotism policy until she filed
for state unemployment benefits some time later. An e-mail exchange
between AO and an agency HR specialist contained in the record (at
exhibit 37) calls into question whether it was the nepotism policy or
it was complainant's alleged refusal to perform tasks given to her by
LS that was the true reason for her non-renewal.
The agency's shifting reasons for the non-renewal of complainant's
temporary appointment are material to an analysis of whether complainant
was discriminated against. The agency has variously put forth that AO's
inability to continue supervising complainant, the supposed existence of
the recusal agreement, complainant's alleged refusal to carry out tasks
assigned by LS (which belies any "supervision" by AO), and the nepotism
policy (and its proper application in complainant's case) dictated that
complainant's temporary appointment not be renewed. If the AJ finds
that the agency's reasons are not supported by the evidence or that the
testimony in support of these reasons is not credible, complainant may
be able to show that the reasons were mere pretext for discrimination.
We also note that in complainant's opposition to a decision
without a hearing, she disputes that she and LS were related.
Several individuals testified that it was their belief that LS was
complainant's brother-in-law. Complainant disputed in her opposition
to summary judgment that she and LS are related. At one point in time,
apparently, LS was married to the sister of complainant's husband.
Evidence submitted with complainant's August 2, 2006 opposition to a
decision without a hearing shows that LS and complainant's sister-in-law
were divorced in 1982. Affidavit testimony refers to LS as not only
complainant's brother-in-law but also as the "significant other" of
complainant's sister-in-law, referencing a post-divorce cohabitation of
LS and the sister-in-law. The facts of this relationship, the application
of the agency's nepotism policy to this situation, and the beliefs of the
individuals involved in this situation as to their understanding of the
relationship are material facts at issue, which also call into question
the veracity of the agency's legitimate, nondiscriminatory reason.
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 25, 1995).
In summary, there are simply too many unresolved issues which require an
assessment as to the credibility of the various management officials,
co-workers, and complainant. Therefore, judgment as a matter of law
for the agency should not have been granted as to complainant's claim
of reprisal.
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 vacates 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 Commission's 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
___9-01-09_______________
Date
1 Complainant, through her attorney, also filed notices of appeal on
August 30, 2006, December 6, 2006, and September 17, 2008. The initial
notice of appeal on August 30, 2006, was prematurely filed; the October
24, 2006 notice was timely filed from the complainant's receipt of the
Administrative Judge's decision; the December 6, 2006 notice was timely
filed from complainant's attorney's receipt of the final agency decision
(FAD), resent to him on November 3, 2006; and the September 17, 2008
filing was sent following the attorney's receipt of a response from
the agency to an inquiry into the status of the case, which included
a copy of the FAD. The September 17, 2008 submission also included a
change of address for complainant's attorney. All submissions have been
consolidated into the instant appeal for consideration.
2 The record before us does not contain complainant's letter amending
her complaint, but does have the letter of acceptance/dismissal in which
the agency accepted the amended issue for investigation.
3 We affirm the agency's dismissal of issue 1 on the grounds of failure
to state a claim.
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0120070885
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070885