01a51046
07-19-2006
Gregory R. Chatman, Complainant, v. Christopher Cox, Chairman, Securities and Exchange Commission, Agency.
Gregory R. Chatman v. Securities and Exchange Commission
01A51046
July 19, 2006
.
Gregory R. Chatman,
Complainant,
v.
Christopher Cox,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01A51046
Agency No. 03-16-02
Hearing No. 160-2003-08600X
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.
The record reveals that during the relevant time, complainant was
employed as a Staff Accountant at the agency's Boston District Office,
Broker Dealer Branch. Complainant sought EEO counseling and subsequently
filed a formal complaint on October 10, 2002. He alleged that he was
discriminated against on the bases of race (African-American), age
(D.O.B. 1/5/1956), and in reprisal for prior EEO activity when:
(1) he was not promoted to a GS-14 in August 2002; and
(2) he was subjected to a hostile work environment on the basis of
his age, race and in reprisal for contacting an EEO counselor.<1>
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination.
The AJ concluded that the agency's motion for summary judgment set
forth a correct recitation of the facts and the applicable law and
granted the agency's motion. More specifically, the AJ found that the
agency did not promote complainant because his performance was not at
an outstanding level which was the standard for promotion at that time.
The AJ concluded that complainant failed to prove that the agency's
reasons were a pretext for discrimination on any of the alleged bases
and therefore summary judgment for the agency was appropriate.
Turning to complainant's claim that he was subjected to a hostile
work environment, the AJ concluded that complainant only referred to
one incident in which the Assistant Administrator yelled and screamed
at him during a meeting. The AJ found that even assuming the meeting
occurred exactly as complainant described, this one meeting was not so
severe that it altered the terms and conditions of his employment and
created a hostile work environment. The AJ determined that complainant
failed to prove the agency retaliated against him because there was no
causal connection shown between his protected activity and the Assistant
Administrator's behavior at the meeting. The agency's final action
implemented the AJ's decision.
On appeal, complainant contends that he raised genuine issues of material
fact to be resolved at an evidentiary hearing and that summary judgment
was not appropriate. In particular, complainant asserts that his
performance was rated satisfactory or �pass,� the same as those who
were promoted and that the agency could not articulate what criteria
it used for determining outstanding performance. Complainant cited to
the deposition testimony of two managers who stated they were not aware
of any specific criteria or written guidelines they used to decide on
promotions to the GS-14 level.
The agency argues that there is no genuine issue of material fact that
the criteria used for promotion were clear, that complainant failed
to meet the criteria and should not have been promoted. The agency
claims that management determined outstanding performance based on how
well employees performed five critical job elements. According to the
agency, complainant's supervisors unanimously agreed that complainant
had problems with his work performance and was not considered to be
outstanding. Complainant's supervisors all stated that complainant's
reports contained inaccuracies or were incomplete, that complainant showed
no leadership or communication skills and did not follow instructions.
According to the agency, these facts were not disputed and therefore,
summary judgment was correct as a matter of law.
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 summary judgment 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.
After a careful review of the record, we conclude the AJ erred in granting
summary judgment and that there were genuine issues of material fact more
properly determined after a hearing on the evidence. We find the AJ erred
in crediting the agency's statement of the facts when the law requires
that the evidence be viewed in the light most favorable to complainant
and that all reasonable inferences be drawn in favor of complainant,
the non-moving party.
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). Applying this standard, complainant claimed in his opposition
to summary judgment that he was more qualified than those selected for
promotion because he had more experience as an auditor and as a supervisor
both within and outside of the agency, he had received performance
awards for his work with the agency and had more education in the area
of accounting than those who were promoted. He asserted that those
promoted had only recently joined the agency and held bachelors degrees
whereas he held an MBA in accounting and had several years experience
in conducting examinations.
In contrast, the agency claimed that supervisors concluded that
complainant had some performance problems specifically in the area
of proofreading his reports and correcting inaccuracies. The agency
contended that complainant did not meet the criteria for promotion to the
GS-14 level which consisted of outstanding performance and the ability
to perform work at a higher grade level.
Based on the conflict in the evidence where it appears the agency gave
complainant performance awards for doing commendable work on specific
projects in direct contrast with the agency's claim that complainant's
performance needed improvement, there is a genuine issue of credibility
regarding the agency's reasons for not promoting him. Complainant's
credentials evidencing a higher level of education in the relevant area
when compared to those promoted, is also probative to any finding that
he was not as well qualified as those who were promoted.
Also in question are the agency's criteria for promotion. Complainant's
first and second line supervisors initially stated there were no specific
criteria for promotion to the GS-14 level aside from one year of service
in the next lower grade level and an overall pass for the rating year.
No written criteria were known to the supervisors at first, but in a
conflicting account, there were specific written criteria which included
a requirement for outstanding performance. The agency's managers stated
that the criteria were not known to employees but they claim they may
have been relayed to those who were actually promoted. This conflicting
and inconsistent testimony calls into question the veracity of the
supervisors' statements which should have been the subject of cross
examination before their credibility could be decided.
We further find that the evidence presents a question of fact whether the
agency retaliated against complainant. The standard for determining
whether an employer engaged in unlawful retaliation, is whether:
(1) complainant engaged in protected activity; (2) the agency was
aware of his protected activity; (3) subsequently, he was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. McDonnell Douglas v. Green,
411 U.S. at 802. Hochstadt v. Worchester 425 F.Supp. 318,aff'd, 545 F.2d
222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases) 324,
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997). The Commission's policy on retaliation prohibits
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the complainant or others from engaging in
a protected activity. EEOC Compliance Manual Section 8, �Retaliation�
No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
When viewing the evidence in the light most favorable to complainant,
his first, second and third line supervisors were aware of his protected
EEO activity when they received an e-mail from complainant inquiring about
his prospects for promotion in July 2002. This e-mail was simultaneously
copied to the agency's EEO counselor. Complainant also sent a memo to the
Assistant Administrator on August 23, 2002 regarding what he termed to be
discriminatory and retaliatory treatment during his performance review.
According to complainant, on the same day that this memo was delivered,
his supervisor called a meeting with him in which he was forced to
stand for 60 to 90 minutes while the supervisor yelled and screamed.
Complainant claims the supervisor told him he would give him enough work
�to hang himself.� This evidence, if true, is sufficient to constitute
adverse treatment that is reasonably likely to deter complainant and
others from engaging in protected activity. From this we conclude that
summary judgment was not appropriate and that a hearing was necessary
to weigh the evidence of retaliation.
Based on this one incident, however the Commission concludes that
complainant has not presented facts that, even if true, amounted to a
hostile work environment. Harassment is actionable only if the incidents
to which complainant has been subjected were "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and
create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 23 U.S. 75 (1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).<2>
Lastly, as stated above, summary judgment is only appropriate when the
trier of fact is satisfied that the record has been adequately developed.
In this case, the agency asserts that complainant's work product
was inadequate and contained mistakes, yet there are no examples of
complainant's reports which would document or corroborate this fact.
The Commission views the hearing process as 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, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(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 25, 1995).
These documents or evidence, if available should be produced and made
a part of the record.
Therefore, based on the foregoing, 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 New York 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 (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 19, 2006
__________________
Date
1Complainant also raised other allegations
in his complaint which the agency dismissed in a Notice of Partial
Acceptance and Partial Dismissal dated January 22, 2003. Complainant
did not raise an objection to the dismissal in his appeal, therefore,
the Commission considers the objection to be waived. However, we note
that the incidents alleged may be relevant background evidence even if
they are not separately actionable.
2To establish a prima facie case of harassment, complainant must show
that: (1) he is a member of a statutorily protected class and/or was
engaged in prior EEO activity; (2) he was subjected to unwelcome verbal or
physical conduct related to his membership in that class and/or his prior
EEO activity; (3) the harassment complained of was based on his membership
in that class and/or his prior EEO activity; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(Sept. 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)). Further, the harasser's conduct is to be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994).