0120081815
09-25-2009
Delores Pritchett, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Delores Pritchett,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081815
Hearing No. 480-2007-00250X
Agency No. 5K0M06016
DECISION
On March 6, 2008, complainant filed an appeal from the agency's February
27, 2008 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 timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
VACATES the agency's final order.
ISSUES PRESENTED
Whether the Administrative Judge properly issued a decision without a
hearing in favor of the agency.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
a GS-5 Secretary (Office Automation), Fire Operations Organization,
452d Civil Engineering Squadron, Air Force Reserve Command, March Air
Reserve Base, California. On August 24, 2006, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of race
(African-American), color (black), and in reprisal for prior protected
EEO activity (arising under Title VII) when, on July 9, 2006, she was
reassigned from one unit at March Air Reserve Base [ARB] to another
unit at the same Air Force base, but within the same position, grade
and series. The agency maintained that there are three GS-5 secretaries
within the engineering squadron at March Air Reserve. Complainant,
an African American, worked in the fire department. C-1, a Hispanic
individual, worked in general engineering, and C-2, an Asian/Pacific
Islander, worked in the environmental branch of engineering. Management
decided to rotate the three secretaries so they could become proficient in
each other's duties. During the first phase of the rotations, complainant
was reassigned to the position in general engineering and C-1 was placed
in the fire department. C-2 was not initially reassigned. According to
the agency, this was because he had only been in the job for a year.
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. Over complainant's objections, the AJ assigned to
the case granted the agency's November 26, 2007 motion for a decision
without a hearing and issued a decision without a hearing on December
20, 2007.
AJ Decision
In her decision, the AJ initially indicated that in her Pre-Hearing
Report, complainant also raised the issues of denial of equal pay based
on color, retaliation and race; and, hostile work environment based on
race after she was reassigned. The AJ stated that she considered this
to be a de facto motion to amend. The AJ denied the motion to amend,
noting that the equal pay claim was untimely, coming in after the close
of discovery. The AJ also noted that the motion to add the claim of
hostile work environment was untimely, and was also unsupported by any
evidence that complainant could present a prima facie case.1
Addressing the reassignment issue, the AJ found that the agency
demonstrated that all of the GS-5 secretaries were treated similarly in
the sense that all were temporarily rotated out of their assignments to
other assignments within their GS-5 position description. The AJ found
that complainant could not establish a prima facie case of disparate
treatment. Complainant argues however, that the reassignment decision
actually constituted disparate treatment because she was the most
senior secretary and had the best GS-5 assignment prior to the decision
to rotate. This characterization was based on the fact that she had a
private office in her original assignment at the Fire Department while
the other GS-5s did not.
The AJ accepted, for purposes of her decision, that complainant's
assignment, prior to the reassignments, could be preferable to a
reasonable person with respect to the private office, but found that
complainant failed to show that her prior assignment was preferable with
respect to job duties or other terms and conditions. Finally, the AJ
found that complainant did not show that the temporary reassignment
was materially adverse, because at the time of the issuance of the
AJ's decision complainant's return to her prior position was imminent.
The AJ therefore, found no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she has established a prima facie
case of discrimination, and that the final order should be reversed.
She also contends that the reassignment was not temporary, noting that,
as of the date of the writing of her appeal brief (March 12, 2008),
she still had not yet been returned to her original position. Finally,
she disputes the AJ's refusal to allow her to add the harassment claim,
noting that she raised the issue of a hostile work environment in her
formal complaint.
In reply, the agency maintained that all three secretaries were
rotated through the other two secretarial positions, and, contrary to
the assertions in her appeal, complainant is now back in her original
position at the fire department. The agency asserts that the AJ properly
found that all three secretaries were treated similarly, and therefore
the complainant cannot make out a prima facie case.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency' decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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).
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). "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). 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, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
Judgment as a matter of law should not have been granted in this
case because this record contains genuine issues for trial. In her
decision, the AJ noted that in order to successfully show that there
is a dispute of material fact precluding granting the agency's Motion
on the bases of race and/or color, complainant must produce evidence
that the temporary reassignment within the GS-5 job duties at March ARB
constituted a sufficiently serious change in job conditions. The AJ
found that complainant did not make this showing, in part, because the
record indicated that the reassignment was only temporary. We find that
the AJ erred when she concluded that there were no genuine issues of
material fact in this case. Although the AJ describes the reassignment as
temporary, at the time of the AJ's decision, complainant had still not
been returned to the fire station. This was a period of one and a half
years. Additionally, the SF-50 form that reassigned her did not specify
that the reassignment was temporary. Because complainant's evidence must
be believed at the summary judgment stage and all justifiable inferences
drawn in her favor, we have to find that the reassignment constituted
a sufficiently serious change in job conditions.
Next, we find that there are genuine issues of credibility which
must be resolved at a hearing concerning the agency's articulation
of the legitimate, nondiscriminatory reason for the reassignment.
Specifically, management stated that the purpose of the reassignment
was to "cross-train" the three secretaries so that they would be better
equipped to fill in for one another when one of them was out sick or on
vacation. However, complainant indicated that no secretary ever filled
in for another, either before or after the reassignments. Finally, as
noted above, although management stated that the reassignments were only
temporary, complainant's SF-50 did not indicate that the reassignment
was merely temporary, and, complainant had still not been returned to
her original position after a year and a half had elapsed.
We find that this record contains genuine issues of material fact
and conflicting evidence that requires a credibility determination.
Accordingly, in this case, issuance of a decision without a hearing was
not warranted under 29 C.F.R. � 1614.109(g). The Commission VACATES the
agency's final order and REMANDS the matter for a hearing in accordance
with this decision and the ORDER below. 2
ORDER
The agency shall submit to the Hearings Unit of the Los Angeles 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 (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
______09/25/09____________
Date
1 This allegation relates to the reassignment in that complainant is
alleging that she was harassed by being reassigned to a location where
it was well-known that the people had "problems" with African-American
employees.
2 We note that complainant alleged a hostile work environment claim in
her formal complaint, and requested payment of equal wages as a remedy
in her formal complaint. Accordingly, the AJ erred by declining to
address those matters, and is instructed to address them on remand.
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0120081815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120081815