Billy J. Williams, Complainant,v.Hershel W. Gober, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 16, 2000
01a03176 (E.E.O.C. Oct. 16, 2000)

01a03176

10-16-2000

Billy J. Williams, Complainant, v. Hershel W. Gober, Secretary, Department of Veterans Affairs, Agency.


Billy J. Williams v. Department of Veterans Affairs

01A03176

October 16, 2000

.

Billy J. Williams,

Complainant,

v.

Hershel W. Gober,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03176

Agency No. 972190

Hearing No. 160-98-8255X

DECISION

Billy J. Williams (complainant) timely initiated an appeal from a final

agency decision (FAD) concerning his 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405).

Complainant alleges he was subjected to harassment on the bases of race

(African-American), color (black) and religion (Baptist) when:

(1) on or about June 4, 1997, he was told not to discuss religion at

work;

on or about November 31, 1996, he was asked not to wear a hat in the

office building;

his supervisor stated that his wife was �taken by a Black man;�

on or about March 5, 1997, he was falsely accused of entering incorrect

data into the computer;

his supervisor made a remark about a movie, quoting the phrase �Head

Nigger in Charge;�

on or about April 28, 1997, he was required to write false information

on a report of contact;

on or about May 8, 1997, he was told to write a report of contact

explaining an error concerning a wrong date;

on or about July 11, 1997, he was told that if he accepted a new

position, he would be �watched under an hour glass� by a new supervisor;

and

on or about July 11, 1997, the Service Chief (SC) told him that SC had

heard that complainant was involved in an EEO complaint.

BACKGROUND

The record reveals that complainant, a clerk at the agency's Boston,

Massachusetts Medical Center, filed a formal EEO complaint with the agency

on July 3, 1997, alleging that the agency had discriminated against him

as referenced above.

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's

allegations were not sufficient to establish that he was subjected to a

hostile or abusive work environment. The agency adopted this recommended

finding of no discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ was incorrect in finding that

the allegations he raised did not create an abusive or hostile work

environment. He contends the agency's actions created an environment

which made it more difficult for him to perform his job.

In response, the agency argues that whether the agency's actions created

an environment which made it more difficult for complainant to perform

his job is not the standard for establishing harassment. The agency

notes that the AJ set forth the correct standard for determining

whether a work environment is hostile or abusive�the frequency of the

discriminatory conduct; its severity; whether it is physically threatening

or humiliating or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance. The agency reiterates

that complainant failed to establish that he was subjected to harassment.

Finally, the agency notes that the appeal appears to be untimely filed,

as the FAD was received by complainant's representative on February 18,

2000 and the appeal was not filed until March 22, 2000, three days late.

ANALYSIS AND FINDINGS

As an initial matter, we note that this appeal was timely filed.

Although complainant's representative received the FAD on February 18,

2000, complainant himself did not receive the FAD until March 11, 2000.

Commission regulations state that if the complainant is represented by

an attorney of record, the time period for filing an appeal with the

Commission shall be calculated from the receipt of the required document

by the attorney. See 29 C.F.R. � 1614.402(b). In all other instances,

the time within which to appeal is calculated from the receipt of the

required document by the complainant. See id. The representative in

the case at hand is a non-attorney representative and it is therefore

complainant's receipt, not the representative's, that triggers the

time limits. Complainant's appeal is therefore timely.

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 United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of the

non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st

Cir. 1988). In the context of an administrative proceeding under Title

VII, summary judgment is appropriate if, after adequate investigation,

complainant has failed to establish the essential elements of his or

her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173

(3d Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

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 rendered a decision without a hearing. We are most troubled by the

remarks made by complainant's supervisor, including the comment that the

supervisor's wife was �taken by a Black man� and the comment regarding the

phrase �Head Nigger in Charge.� While the AJ, apparently relying on the

supervisor's affidavit that he did not mean these comments in a demeaning

way, found that these comments, along with the other actions alleged by

complainant, did not rise to the level of harassment, such a finding turns

on the credibility of the supervisor and the other witnesses involved.

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(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 supervisor,

co-workers, and complainant, himself. Therefore, judgment as a matter

of law for the agency should not have been granted.

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 decision and REMANDS the matter to the agency in

accordance with this decision and the ORDER below.

ORDER

The complaint is remanded to the Hearings Unit of the New York District

EEOC office for scheduling of a hearing in an expeditious manner.

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 (K0800)

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)(Supp. V 1993). 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 (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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

October 16, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.