0120090904
06-08-2009
Diane Hayman, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Diane Hayman,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120090904
Hearing No. 570-2008-00042X
Agency No. ED-2007-22-00
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 4, 2008 final action concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
The issue presented by this appeal is whether the instant EEO complaint
was appropriately adjudicated by summary judgment in favor of the agency.
BACKGROUND
Immediately prior to the period at issue, complainant was employed as
a Director of the Program Oversight Staff (POS), which was primarily
responsible for monitoring grants. At the time, six (ages 70, 67, 60,
58, 56 and 46) of the nine POS employees were located in the agency's
regional field offices. The remaining three (ages 33, 36 and 37)
were located in Washington. In June 2005, complainant (age 60)
was notified that the field POS employees were going to be relocated
and brought back to headquarters in Washington, D.C. The process of
the reassignment of complainant's staff began in 2006. At the time,
four of the six field staff decided to retire from the agency instead
of relocating to Washington. The remaining two employees relocated to
Washington. However, within a year, due to the transfer of some of the
remaining staff, the POS was left with only two employees. Consequently,
complainant received notification of a directed reassignment effective
March 19, 2007. As a result of the reassignment, complainant's duties
and responsibilities changed. In October 2007, the POS was re-staffed
with younger employees (ages 38, 28 and 25), and someone other than
complainant was placed in the Director position.
On March 23, 2007, complainant filed an EEO complaint alleging that the
agency discriminated against her on the basis of age when:
1. on November 30, 2006, she received notification of her directed
reassignment which was effective March 19, 2007; and
2. on November 30, 2006, her assignment of duties changed.
Following the investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On August 6, 2008, the AJ issued a Notice
of Intent to Issue a Decision Without a Hearing. The record reflects
that both parties responded to the AJ's Notice. On October 1, 2008, the
AJ issued a decision granting summary judgment in the agency's favor.
In reaching his decision, the AJ determined that the agency's reasons
for complainant's reassignment, proffered during the investigation,
were legitimate and nondiscriminatory. The AJ noted that according to
management affidavits provided during the investigation, a determination
was made that complainant no longer had a viable POS staff to supervise
and her skills were not being utilized. Therefore, a decision was made to
reassign her from her Director, POS position to a non-supervisory Program
Specialist position. Management also stated there was a need to improve
the outcomes on the Department's surveys on the Strategic Planning Staff,
and complainant had the requisite skills and experiences to accomplish
this task in the Program Specialist position. The AJ concluded that
complainant had not established that there was a disputed issue concerning
the agency's explanation for her reassignment that needed to be resolved
through a hearing.
The AJ next addressed complainant's allegation that, during June 2005,
that management decided to bring the POS staff in from the field
and reassign them to headquarters because the majority of the staff,
including complainant, was retirement eligible and the agency wanted
to re-staff POS with younger employees. The AJ found that six POS
staff members (all over 40 years old) located throughout the regions
were provided the option of relocating to headquarters and that two POS
staff members were actually relocated to headquarters during July 2006.
The AJ further noted that the fact that these two POS employees, as well
as complainant, all over 40, were assigned to headquarters as a result
of the AS's decision did not create an inference that complainant's POS
staff was reassigned to headquarters from the field in order to force
older employees, including complainant, to retire.
Finally, the AJ addressed complainant's allegation that, during October
2007, management decided to re-staff the POS with younger employees1 and
reassign someone other than complainant into the Director position because
of a bias against older employees. The AJ concluded that management
articulated legitimate programmatic reasons for centralizing the staff
in Washington and complainant had not offered evidence that created an
inference of age discrimination because of her age because the individual
who replaced complainant was older than she was.
On November 4, 2008, the agency issued its final action implementing
the AJ's decision. The instant appeal followed.
On appeal, complainant, through her attorney, argues that the AJ
improperly granted summary judgment in favor of the agency because
there are genuine issues of material fact. Complainant argues that
S2's explanation that she was reassigned because she no longer had a
POS staff to supervise and her skills were not being utilized "is less
than forthcoming, as it fails to mention that Appellant no longer had
a POS staff because it was taken away from her." Complainant argues
that during the relevant time, there were ten employees within POS
when notification was sent regarding the relocation to Washington DC.
Complainant further argues that just before the relocation in 2006, there
were eight employees within POS and "interestingly, five of the eight
employees were eligible for retirement." Complainant argues that in her
memo, AS stated that once the POS staff was relocated to Washington DC
"the employees would 'be able to collaborate more closely with program
and policy staff and provide more effective monitoring training workshops
to OPE." Complainant argues that none of AS's plans were accomplished.
Complainant argues that AS's decision "to abolish the unit and eventually
restaff it with younger employees raises a question of fact as to its
true intent in this case. Even more unsettling and confusing is the
fact that the Appellant, the most qualified person to head the Program
Oversight Staff, as she had prior experience, was never asked to head
the Program Oversight Staff after it was restaffed."
ANALYSIS AND FINDINGS
As this is an appeal from an agency's decision issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's 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. 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 does not sit as a
fact finder. Id. 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. A disputed 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. Catreet, 477 U.S. 317,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of a case. If a case can only be resolved by
weighing conflicting evidence, a hearing is required. 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. 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." Redmond 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).
In the instant matter, we note that complainant, on appeal, contends that
the AJ improperly determined that it appeared from a review of the record
that the agency's proffered programmatic reasons for its decision to
centralize the POS in Washington were legitimate and nondiscriminatory.
The AJ was also persuaded that the proffered reason for complainant's
directed reassignment - that there was no longer a viable POS staff
for her to manage - was also nondiscriminatory. However, complainant
has argued that the agency's explanation of the programmatic reasons
for the relocation of POS is undermined by the fact that the agency
allowed the program to remain inactive once it arrived in Washington,
gradually pushing out the remaining employees. She asserts it was not
until all the former staff had left POS and complainant was reassigned
that the decision was made to re-staff POS. Therefore, complainant
argues that the reasons for the relocation of POS were plainly false
and the decision was made to force out the older employees within POS
and replace them with younger employees.
Furthermore, complainant argued that, in justifying her directed
reassignment, the agency simply stated that the decision was made
because she had no staff. Complainant asserts that that this reason is
self-serving as it was management that made the decision to deprive her of
her staff for what she asserts were discriminatory reasons. Complainant
stated "there is a suspicious reason why Appellant had no staff, why POS
was relocated, why POS was never restaffed under Appellant's supervision
and why POS was reorganized under the supervision of [new Director of
POS] when the Appellant was clearly the most qualified individual to fill
that position." Complainant argued that the fact that the new director
of POS "is also within the protected class was merely a tactic used by
the Appellee to conceal its intention to do away with the Appellant and
her aging staff."
After careful review of the record and consideration of the arguments
presented on appeal, the Commission finds that summary judgment was not
appropriate in this case as genuine issues of material fact exist that
can only be resolved through a hearing. There are significant unresolved
issues surrounding the decision by agency management to relocate the
POS from the field to headquarters. Agency management has detailed
seemingly legitimate programmatic reasons to centralize the program.
However, little explanation has been given as to why the program,
once it arrived in Washington, was allowed to languish with no staff
for over a year, accomplishing none of proffered reasons for the move.
Complainant asserts this occurred in order to drive the remaining older
staff, including herself, out of the POS, so that it could be eventually
re-staffed with younger employees. The reason proffered by management for
complainant's directed reassignment is also in dispute. While management
states complainant was reassigned because she had no staff, complainant
argues that she had no staff because the agency took affirmative steps
to make sure she had no staff in order to get rid of her. It appears
that this circular debate can only be resolved through credibility
determinations made during a hearing. There also exists considerable
dispute over why complainant was not returned to the POS Director when
it was re-staffed. One management official seems to state that he did
not believe complainant wanted the position. Another asserts the person
eventually placed in the position was better qualified than complainant
for the position. Complainant disputes both proffered reasons. Finally,
we note that even the agency concedes in its brief on appeal that there
are significant disputes between the parties as to what management
actor made what decision and when. Therefore, the AJ's finding of no
discrimination could not be reached except by resolving significant
conflicting evidence, an action that is not appropriate in a grant of
summary judgment. In light of the disputed issues of material fact on
the instant record, 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
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Washington
Field Office the request for a hearing, as well as the complaint file,
within thirty (30) 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 of the Washington Field Office. 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
June 8, 2009
__________________
Date
1 It is not clear from the record whether or not the re-staffed POS
continued to operate solely in the agency's Washington headquarters or
whether there were some assignments to the field.
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0120090904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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