Iris E. Torres, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 15, 2009
0120090136 (E.E.O.C. May. 15, 2009)

0120090136

05-15-2009

Iris E. Torres, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Iris E. Torres,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120090136

Hearing No. 430-2007-00400X

Agency No. 07-66094-00179

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's September 4, 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.

ISSUE PRESENTED

Whether the instant EEO complaint was appropriately adjudicated by

summary judgment in favor of the agency?

BACKGROUND

On October 31, 2005, complainant was hired as a Medical Officer

(Pediatrics), GS-0602-14, at the agency's Naval Hospital, Marine Corps

Air Station in Cherry Point, North Carolina, subject to a one-year

probationary period. At the time of her appointment, complainant was

the only civilian doctor in her unit. In July 2006, complainant sought

EEO counseling asserting that her first level supervisor had created a

discriminatory hostile work environment for her based on her national

origin (Hispanic/Puerto Rican) and sex (female) and cited to a number

of incidents involving screaming at her and comments he made, as well

as issues concerning office assignments and work hours. The supervisor

identified by complainant left for another assignment shortly after she

sought counseling, and complainant withdrew her informal complaint.

On October 18, 2006, the agency issued complainant a letter of termination

effective immediately. Complainant again sought EEO counseling.

On December 28, 2006, complainant filed a formal EEO complaint in which

she claimed that agency management discriminated against her on the

bases of national origin (Hispanic/Puerto Rican), sex (female), religion

(Catholic), and/or in reprisal for prior EEO activity (the July/August

2006 EEO counseling) when:

(1) management terminated her during her probationary period effective

October 18, 2006;

(2) between June 30 and July 10, 2006, the Director of Medical Services

told her on several occasions that her supervisor's problem with her was

because she was Hispanic, a woman, a civilian and possibly a Catholic;

and

(3) the former Executive Officer and Commanding Officer told her that

they could not do anything about her supervisor's behavior because he

was leaving the hospital.

On March 12, 2007, the agency accepted claim (1) for investigation.

The agency dismissed claims (2) and (3) pursuant to 29 C.F.R. �

1614.107(a)(2), for untimely EEO counselor contact and because complainant

withdrew her prior informal EEO complaint concerning these issues in

August 2006.1

Following the investigation into claim (1), complainant requested a

hearing before an EEOC Administrative Judge (AJ). On February 20, 2008,

the agency filed a Motion for a Decision Without a Hearing. On March 10,

2008, complainant filed a Response to the agency's motion. On July 30,

2008, the AJ issued a decision without a hearing, pursuant to 29 C.F.R. �

1614.109(g), in favor of the agency. The AJ determined that the agency's

stated reasons for complainant's termination-performance deficiencies

and failure to demonstrate teamwork and professional behavior-appeared

legitimate and nondiscriminatory. The AJ went on to conclude that, based

on the record evidence, complainant failed to prove that the agency's

proffered reasons for her termination were pretext designed to mask

discriminatory animus because of her national origin, sex, religion

and/or prior protected activity.

In reaching her decision, the AJ disagreed with complainant's assertions

that she was never counseled about her performance or conduct issues.

The AJ determined that the evidence showed that management discussed these

matters with her through meetings, e-mail correspondence and memorandum.

The AJ further found that while these communications may not have

expressly warned complainant that continued problems could result in

termination, complainant was on notice that she had to successfully

complete her probationary period in order to have a permanent career

appointment. In reaching the conclusion that no discrimination occurred,

the AJ observed that complainant was the only newly hired civilian

doctor and surmised that management's military background and lack of

civilian personnel experience may have contributed to difficulties in

addressing the concerns of a non-military doctor. The AJ determined

that personality issues, misunderstandings between military and civilian

policies, and misconceptions of "civil" behavior plagued complainant's

employment at the agency and resulted in her eventual termination.

On September 4, 2008, the agency issued its final order fully implementing

the AJ's decision. The instant appeal followed.

On appeal, complainant, through her attorney, argues that the AJ "found,

with little explanation, that the agency's proffered reasons for its

actions 'appear' legitimate and offered speculative reasons other than

discrimination that might have been the reasons for the Complainant's

termination, including several reasons not even advanced by the agency."

Complainant also argues that the agency "has to do more in advancing

its grounds than simply making an assertion. There must be a reasonable

factual basis for the agency's argument and no basis in the record for

questioning these reasons. That has not been met in the current case."

Complainant argues that while there were no criticisms of her skills

as a Medical Officer, she was terminated based on alleged issues with

adapting to the agency's environment. Furthermore, complainant argues

that she never refused to do any of the work assigned to her.

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).

Summary judgment was not appropriate in this case as genuine issues

of material fact exist that can only be resolved through a hearing.

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 reasons for complainant's termination were

legitimate and nondiscriminatory. In this regard, we note that the AJ

has not elaborated on precisely how the agency's proffered reasons for

its actions were legitimate. Complainant has argued that the agency's

stated reasons for the termination were simply not true. For example,

she noted that one of the reasons proffered in the termination letter

was inadequate performance, such as her refusal or failure to take

back-up calls. Complainant argues, however, that she never refused to do

assigned work, even though she may have objected that the amount of calls

was greater than what she was told when hired. Complainant stated "thus

[the Medical Director] would have the Judge believe that he . . . simply

wished to terminate the Complainant for objecting that the amount of

calls was greater than what she was told when hired. It is inherently

unlikely that it is normal procedure to terminate a physician simply

for voicing an opinion."

Complainant argues that there is a strong inference of reprisal in this

case because the agency terminated her just a few months after she sought

EEO counseling and without any prior history of problems relating to her

professional competence. We note that during the investigation, agency

management officials provided evidence that contradicts complainant's

assertion that performance issues had not been discussed with her prior

to the termination. The AJ resolved this conflicting evidence in favor of

the agency in rendering her decision. However, as noted above, decisions

by summary judgment require resolving such conflicts in favor of the

non-moving party, which in this case was complainant. Complainant also

asserted that the agency's argument that the Medical Director, who was

responsible for issuing the notice of termination, was not aware of her

prior protected activity was not credible. Complainant argued that she

personally informed him that she regarded the treatment by her supervisor

as discriminatory. Complainant stated that the Medical Director's

relationship with her changed after she initiated EEO counseling in

July/August 2006 and "he began gathering information at that time to

justify his termination of [her]."

Therefore, the Commission determines that, under the circumstances of this

case, the AJ's finding of no discrimination could not be reached without

resolving conflicting evidence and making credibility determination,

actions that are not appropriate in a grant of summary judgment. In light

of the disputed issues of material facts 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 Charlotte,

North Carolina District 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 Charlotte District

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

May 15, 2009

__________________

Date

1 The AJ did not specifically rule on the correctness of this partial

dismissal. However, a fair reading of claims (2) and (3) reveal they

are not really separate claims, but are background evidence offered in

support of complainant's claim that her termination was discriminatory.

They should be considered in any further adjudication of the termination

claim.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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