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.