01984186
07-06-2001
Fawn T. Dare, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Fawn T. Dare v. Department of the Air Force
01984186
07-06-01
.
Fawn T. Dare,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01984186
Agency No. AR000980208
Hearing No. 100-96-7925X
DECISION
INTRODUCTION
Complainant filed an appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning her claim that the agency discriminated against her in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in
accordance with 29 C.F.R. � 1614.405.
ISSUES PRESENTED
Whether the complainant was discriminated against on the bases of
her race (Asian), color (yellow), sex (female), and national origin
(Vietnamese) when, since December 1994, she was: (1) denied the position
of Logistic Management Specialist/Branch Chief, GS-12; (2) subjected to
a hostile work environment; (3) denied an accurate position description
reflecting supervisory duties; (4) denied the duties and responsibilities
of Branch Chief/Supervisor; (5) given conflicting orders regarding who
her immediate supervisor was; (6) denied Civilian Personnel Supervisor
training; (7) denied Civilian Personnel Management training; (8) given an
�Excellent�rating rather than �Outstanding� in August 1995; (9) informed
on August 17, 1995, that her leave would be approved by B-1, a military
member; and (10) provided a new performance plan that deleted all of
her supervisory duties and responsibilities on or about December 19, 1995.
BACKGROUND
Complainant filed a formal complaint against the agency on January 18,
1996. Following an investigation, complainant was provided a copy of
the investigative file and notified of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant requested such
a hearing, but on January 15, 1998, the AJ determined that summary
judgment was appropriate. The AJ, in determining that this matter
could be disposed of without a hearing, found that complainant failed to
establish unlawful discrimination. The agency issued a final decision
on March 23, 1998, which adopted the AJ's findings and recommendations.
This appeal followed.
Complainant registered with the agency's Priority Placement Program (PPP)
as a military spouse preference eligible in July 1994. Subsequently, she
was offered, and accepted, the position of Logistic Management Specialist,
GS-346-12, in the Directorate of Systems Management, Air Force Pentagon
Communications Agency. Complainant and her supervisor, A-1, were
the only civilian employees in the division. Because the performance
plan issued to complainant for the rating period ending June 30, 1995
included supervisory performance elements, she was nominated to attend the
Civilian Personnel Management Course (training course). Her training
was subsequently disapproved, however, after the Personnel Office
discovered that she was not a supervisor. According to complainant,
she had been advised by representatives of the Personnel Office and her
supervisor that she was accepting a supervisory Branch Chief's position.
According to complainant, she would not have accepted the position had
she known it was not a supervisory slot. Complainant maintained that her
supervisor, once he was advised by the Personnel Office that her position
was not supervisory, did not give her a supervisory position description
with commensurate duties. Instead, he changed her performance plan by
removing all supervisory performance elements.
Complainant maintained that she was subjected to a hostile work
environment because she was not recognized as the chief and other branch
members rejected her. She also said that she received conflicting
information about who her supervisor was and was concerned that B-1,
a Master Sergeant, was designated to supervise her and to approve her
leave and training. She also maintained that her supervisor promised
the position to C-1 (Caucasian male), a retiring Air Force member,
but could not give him the position because of her placement in the PPP.
Complainant testified that A-1 told her that, although she had the
capability to do the job, he hesitated to put her into the position
because she was very different as compared to her co-workers. He also
told her, she stated, that she had a different work ethic and intimidated
the others. Complainant took this to mean that she was Asian and the other
employees were white. She also mentioned a document she discovered that
was entitled �MS. DARE COME TO JESUS.� This document was written by B-1.
According to complainant, the document proved that she was discriminated
against based on her national origin because one of the entries on the
document referred to the fact that English was her second language.
Finally, the complainant maintained that she should have received an
�Outstanding� rating rather than the �Excellent� rating that she received.
According to complainant, she did not receive the higher rating because
she was not allowed to perform the supervisory duties that were set
forth in her performance plan.
A-1, complainant's supervisor, testified that there was no branch chief
position because there was no branch, only a work center. He admitted
that he thought complainant's position was a supervisory slot because
he had the job previously and it had supervisory responsibilities.<1>
The job had been vacant for a year and he did not compare the actual
position description with his performance plan prior to requesting that
it be filled. He used his old performance plan to create complainant's
plan when she was placed in the position.
According to A-1, he only learned that complainant's position was not
a supervisory position after she was nominated to attend the training
course. Although he may have introduced her as the �new supervisor,�she
never performed any supervisory functions. A-1 maintained that his plan
was for complainant to learn the individual functions of the work center
and to eventually take over as a supervisor. He denied promising the job
to anyone and indicated that most positions are filled through the PPP
or competition. He testified that he did tell complainant that he would
look into creating a supervisory position for her, but he was advised by
the Personnel Office that the current structure of the work center did
not support doing so. He also considered reorganizing the two remaining
work centers in the division but decided against it due to the larger
reorganization that the entire activity was undergoing. A-1 did note,
however, that complainant did attend the training course when she became
the program manager for the Asian/Pacific Islander Emphasis program.
A-1 denied that complainant was subjected to a hostile work environment.
He indicated that he received complaints from the complainant about
her co-workers as well as from her co-workers about her. He stated
that he may have used the word �different� to describe complainant,
but that he meant it as a compliment. According to A-1, he felt that
complainant was aggressive, meticulous, organized, and a hard worker.
Because he was located in another office, A-1 indicated that he did
not have direct supervision of the complainant on a day to day basis.
Therefore, he designated B-1 to oversee the work center and to work
with complainant. A-1 felt this arrangement would allow complainant to
focus on the elements of her performance plan.<2>
Because complainant would disappear for extended periods of time, A-1
also asked her to inform B-1 of where she was going and to coordinate her
leave with him.<3> A-1 emphasized , however, that he was complainant's
first-level supervisor, not B-1. B-1, he testified, provided her with
�daily direction� and supervised the military members of the work center.
With regard to the �Excellent� rating that he gave complainant, A-1 stated
that it was a proper evaluation of her performance. According to A-1,
she had devoted much of her time to the budget and had neglected other
functions. He felt that complainant met, but did not exceed expectations
with regard to two of the elements of her performance plan. These
elements were 2E (functions as the director or focal point for manpower
actions) and 4E (reviews support agreements). Although he specifically
discussed the manpower element with complainant, A-1 felt that she
continued to focus on the budget to the exclusion of other matters.
A-1 indicated that there was no relation between complainant's overall
rating and her lack of supervisory duties because he did not assign her
any supervisory responsibilities to perform.
B-1 stated that he wrote the document entitled �MS. DARE COME TO JESUS� as
a memory jogger for himself to be used during a meeting with complainant.
He described it as a compilation of notes from personal observations of
office interactions, customer complaints, and complaints from former and
present co-workers.<4> He testified that he did not give the document to
anyone and does not know how the complainant obtained a copy. According
to B-1, he was not complainant's supervisor, but he was responsible for
getting tasks accomplished.
With respect to Issues (1), (3), (4) and (10), the AJ found that the
agency offered evidence that complainant was not given supervisory
duties for the legitimate, nondiscriminatory reason that she was not
placed into a supervisory position. With respect to Issue (2), the
AJ found that there was insufficient evidence to support complainant's
charge that she was harassed. With respect to Issues (5) and (9), the
AJ found that the agency submitted evidence that A-1 told complainant
to work with B-1 for the legitimate, non-discriminatory reason that A-1
thought it would enable complainant to successfully perform all of the
elements in her performance plan.
With respect to Issues (6) and (7), the AJ found that the agency offered
evidence that complainant was denied training for the legitimate,
nondiscriminatory reason that such training was available only for
supervisory employees. With respect to Issue (8), the AJ found that
the agency submitted evidence that complainant received a performance
rating of �Excellent� for the legitimate, nondiscriminatory reason that
she did not exceed expectations with respect to two of her performance
plan's elements. Finally, the AJ determined that complainant provided
insufficient evidence to call into question the agency's proffered
reason for its actions; therefore, she found that complainant did not
establish pretext.
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there are no genuine issues 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. 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
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). 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).
We find that the AJ erred when she concluded that there were no genuine
issues of material fact in this case. Because complainant's evidence
must be believed at the summary judgment stage and all justifiable
inferences drawn in her favor, we find that the attitude of B-1 towards
complainant, as reflected in the memorandum that he wrote, could indicate
that complainant was subjected to a hostile work environment based on
her race, color, sex, and national origin. For example, B-1's listing,
as a communication concern, the fact that English was complainant's second
language, his description of her as being �aggressive,� and his indication
that she was perceived as being �power hungry, self-perpetuating, [and]
incapable of accepting anything contrary to [her] own perceptions.�
Moreover, the memorandum directly contradicts the testimony of A-1 and
B-1 that B-1 was not complainant's supervisor. B-1, in the memorandum,
wrote that:
1) he was in charge;
2) all personnel assigned to the work center, including complainant,
worked for him;<5>
3) he, as the supervisor, should call the �shots;�
4) any extended absence from the work center should be brought to his
attention; and
5) he needed to check her e-mail �first thing in A.M., at Noon, and
P.M.�<6>
Complainant's complaint, taken as a whole, could fairly be read as raising
a single hostile work environment claim with ten incidents of alleged
harassment. Because B-1 played such a central role in these matters,
we find that there is a need for �strident cross-examination� and �the
weighing of conflicting testimony.� In summary, there are simply too
many unresolved issues which require an assessment of the credibility
of A-1 and B-1. Therefore, judgment as a matter of law for the agency
should not have been granted. These matters should be remanded to the
appropriate hearings unit to schedule a full evidentiary hearing.
CONCLUSION
After a careful review of the record, the Commission REVERSES 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 Washington Field
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 (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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
____07-06-01__________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
1However, A-1, in large part, attributed his supervisory role at that
time to the fact that he had just retired from the Air Force as a
senior Master Sergeant and everyone in the division looked at him as
�the back-up division chief.� According to A-1, �Had I been brought
in from the outside, I don't think that would have happened . . . .�
Report of Investigation (ROI) at Exhibit H, Page 218.
2A-1 testified that�[a]s the situation started to deteriorate because the
supervisory position did not materialize, we were having difficult[ies]
with what she was doing on a daily basis. I was trying to get her to
work towards all of the elements in the performance plan so that she
could hit on each one of them.� ROI at Exhibit H, page 200-201.
3A-1, however, approved her leave and signed her new performance plan.
4B-1, under the section of the document entitled �Communications,� listed,
among other things,�a lot [sic] of things misconstrued, lack of knowledge
base, English as a second language.�
5Regarding complainant, B-1 indicated that she would work for him until
her position description was re-written and approved by the Civilian
Personnel Office.
6Although it is not clear from the memorandum, but B-1 also appeared to
indicate that complaint's training requests had to be approved by him.