01A12530
07-29-2002
George White, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
George White v. Department of the Air Force
01A12530
July 29, 2002
.
George White,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12530
Agency No. ATL-99-AF-0213-E
Hearing No. 150-99-8473X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission reverses
and remands the agency's final order.
BACKGROUND
The record reveals that complainant, a Laborer, NA-3 at Tyndall Air
Force Base, Florida facility, filed a formal EEO complaint on January 12,
1999, alleging that the agency sexually harassed him and discriminated
against him on the bases of race (African-American), sex (male), religion
(Pentecostal), and reprisal for prior EEO activity when:
(1) he was scheduled to work on July 25, 1998; and
he was suspended from work for a period of three days effective August
24, 1998.
At the conclusion of the investigation, complainant received 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 failed to established a prima facie
case of disparate treatment on the bases of race, religion and/or
sex discrimination. Specifically, the AJ concluded that complainant
did not show that he was treated differently than a similarly situated
individual under the same circumstances. The AJ noted that all Laborers
were required to work on the date of question. The AJ also noted that
the only other Laborer who was scheduled to work but failed to report
for duty was also suspended. The AJ noted that complainant cited as
comparators the Materials Handlers employees, who were not required to
work on July 25, 2002. However, the AJ concluded that complainant was
not a Materials Handler, but a Laborer, and that, therefore, there were
no comparative employees for purposes of establishing disparate treatment.
The AJ also concluded that complainant failed to establish a casual
connection between his prior EEO involvement and the adverse actions
complained of. The AJ concluded that complainant introduced no evidence,
besides his own self-serving statements, to show that the actions taken
were due to his prior EEO involvement.
The AJ further concluded that complainant failed to introduce any
objective evidence establishing that he was subjected to conduct of
a sexual nature, and that he did not prevail in his sexual harassment
allegation.
The AJ finally concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the agency
scheduled complainant to work on July 25, 1998, because the agency
required all Laborers to work on that date. The AJ found that the work
required on that date involved moving furniture and equipment, a duty
found in the Laborer's job description. The AJ noted that complainant
did not obtain approved leave for that date, and that therefore he was
absent without leave when he failed to report to work as a scheduled, and
that complainant was issued a three days suspension due to his failure.
The AJ concluded that complainant failed to provide any objective evidence
that demonstrates that the Agency's reason should not be believed or that
they are a pretext for discrimination. In reaching that conclusion,
the AJ noted that complainant argued that he informed his supervisor
that he had a wedding to perform, but complainant concedes that his
supervisor did not formally approve his leave for the date.
The agency's final order implemented the AJ's decision.
On appeal, complainant opted not to pursue his contentions that the
Agency discriminated against him on the bases of his race and sex.
Complainant contends that the Agency's actions were motivated by his
prior EEO activity and his religion. Complainant contends that it is
undisputed that he was engaged in EEO activity for himself and on behalf
of other bargaining unit employees, as late as January 1998, and that
management was aware of it. Complainant contends that he showed a link
between his prior activity and the agency's actions, because within five
months of at least some of this protected activity, the agency, on June
15 and 17, 1998, ordered complainant to work on Saturday, July 25, 1998.
Complainant contends that over a month before, July 1998, he notified his
immediate supervisor, that he could not work on that date because he had
a �scheduled event to attend.� Complainant contends that on June 16,
1998, he advised his supervisor that he, as the officiating minister,
had a wedding ceremony to perform.
Complainant also contends that the AJ failed to focus on the fact
that complainant , as the Union President, had presented previous
EEO complaints and would continue to do so in the future, therefore,
complainant contends that he established discrimination based on
retaliation.
Complainant further contends that the AJ erred in concluding that
the Agency's decision was not motivated by his religious beliefs.
Specifically, complainant contends that he advised management that he had
committed to perform a wedding ceremony that Saturday, and that the Agency
remained adamant that complainant work on his off day, July 25, 1998.
Complainant contends that after the Agency proposed his suspension,
the proposing officials were aware he had cited religion as a defense.
Complainant contends that management directed him to work on July 25,
1998, and then suspended him for refusing to work, because management
determined that complainant's religion-based excuse was frivolous.
Complainant further contends that he made out a prima facie case, and
that the Agency failed to rebut it. Finally, complainant contends that
the AJ should have held a hearing, and that he can prove retaliation
and religion discrimination.
ANALYSIS AND FINDINGS
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, summary judgment
is not appropriate. 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.
The Courts have been clear that summary judgment is not be used
as �trial by affidavit.� Redman v. Warner, F. 2D 766, 768 (1ST
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is ta 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 he
concluded that there was no genuine issue of material fact in this case.
The documentary and testimonial evidence establishes that there are
genuine issues of material of fact concerning complainant's request
for a religion accommodation. Specifically, the record shows that
complainant alleged that he had made management aware that he need a
religious accommodation and they did not grant it. Complainant alleged
that on June 16, 1998, he told his immediate supervisor that he had a
special function which he had to attend which was a wedding to perform.
His immediate supervisor alleged that complainant never mentioned that
he would not be available to work because he had a wedding ceremony
nor he was the minister for the ceremony. The issue of whether or not
management was aware of complainant's request for religious accommodation
constitutes, in the instant case, a genuine issue of material fact that
precludes summary judgment. We note that the record contained issues of
credibility which should have been resolved in an evidentiary hearing. We
conclude that summary judgment summary judgment was inappropriate and
that complainant was entitled to a hearing on the complaint.
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 7, page 7-1; see also 29 C.F.R. � 1614.109(d)
and (e).� 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, material facts remain in dispute.
Therefore, judgment as a matter of law for the agency should not have
been granted. Accordingly, the Commission vacates 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 appropriate EEOC 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 (M0701)
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
July 29, 2002
__________________
Date