01a02363
08-28-2000
Jenelle Guillory, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Jenelle Guillory v. Department of Veterans Affairs
01A02363
08-28-00
.
Jenelle Guillory,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02363
Agency No. 97-0902
Agency Nos. 370-97-2776X
370-98-2638X
DECISION
Complainant filed a timely 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).<1>
The issue presented is whether complainant proved that she was
discriminated against due to her race (African-American) and color
(black) with respect to her suspension and forced early retirement.
Complainant filed a formal complaint in January 1997. The agency accepted
the complaint and conducted an investigation. At the conclusion of the
investigation, she 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 a hearing. The AJ, however, determined
that there were no genuine issues as to any material fact; therefore,
he issued a recommended decision without a hearing. The AJ then found
that complainant had not been discriminated against because of her race
and color. The agency issued a FAD that adopted the findings of the AJ.
This appeal followed.
Complainant was employed as an operations clerk at the agency's Veterans
Canteen Service (VCS) which is located within the agency's medical center
complex in San Francisco, California. In 1996, her manager was A-1,
Chief of the VCS. A-1 was a Caucasian female. The record indicates that
an investigation of the complainant was conducted by the agency's Police
Department in November 1996. The investigation concluded that complainant
stole government property on October 28, 1996, while in the course of
her employment.<2> Complainant was issued a citation and the case was
referred for prosecution to the United States Attorney for Northern
California.<3> On November 6, 1996, A-1 issued a proposal to suspend
complainant indefinitely. On November 14, 1996, the Western Regional
Director of the VCS did in fact suspend complainant indefinitely.
On November 20, 1996, complainant elected to take an early retirement,
which was approved. According to complainant, she only took the early
retirement because she was indefinitely suspended with no indication
when the situation would be resolved.
Complainant denied stealing money from the VCS. According to her, after
she received the money from the customer, she placed it in the register.
Before leaving the store, however, the customer told her that he might
have to return the jacket because it was a little small. Later that day,
she stated, the customer returned with the jacket. Although he initially
asked to exchange the jacket, he changed his mind because of the length
of the line. Consequently, he asked complainant for his money back.
Although she acknowledged that she should have processed the matter as a
refund, complainant testified that she got the receipt from the customer
and gave him the cash from the register. Subsequently, because she had
not followed proper procedures, complainant stated that she wrote the
above referenced notation on the receipt and tried to make it appear as
though she simply made a mistake. Complainant also acknowledged that
she initially misled the police.
According to complainant the videotape of her transactions with the
customer had been tampered with because it did not show the customer
returning and receiving his refund, nor did it show the other cashiers
and customers. Complainant claimed that A-1 targeted black employees and
at times used racial slurs when referring to Blacks. This contention was
supported by a former employee, D-1. According to D-1, upon becoming the
Supervisory Operations Clerk, she was told by A-1 to watch black employees
because �she thought there were a lot [sic] of black people stealing from
her in the Canteen.� When asked if she was ever specifically asked to get
rid of certain black employees, D-1 stated that she could not remember.
She did, however, indicate that A-1 referred to certain black employees
as being �lazy.� Finally, D-1 stated that she could not �honestly say�
that A-1 used a racial slur to refer to the Canteen Chief as maintained
by complainant.
D-2, D-1's husband, testified that he knew A-1 prior to the date when his
wife began working at the VCS. According to the record, A-1 dated D-3,
a close friend of D-2. D-2, who worked at another agency facility,
testified that often during dinners with A-1, he heard her comment
that complainant and other black employees were �hoarding around the
cash register and stealing stuff, and cashing in receipts they found
and splitting the money.� According to D-2, A-1, on many occasions,
stated that �there [were] ways she could manipulate the tapes and set
[complainant] up.�<4> Although he did not have any direct knowledge of the
theft allegations against the complainant, D-2 testified that A-1 told
him she could leave �controversial things� on the tape, but apparently
delete other matters. D-2 also confirmed D-1's testimony that A-1 often
made racially derogatory comments about her black employees.
D-3, who dated A-1 for about six months, testified, however, that she
always �referred to [complainant] fondly and in friendly terms.� He
stated that he did not believe A-1 was in any way prejudiced against
anyone and only judged people on their merits. According to D-3, A-1
�[a]lways hoped that she wouldn't find anything out about [complainant]
that would be detrimental to [complainant's] career.�<5>
The AJ found that, even if one accepted the testimony about A-1's
stereotypical views of her black employees, there was no support for
complainant's contention that she was suspended or forced to resign
because of her race or color. The AJ noted the fact that, pursuant to
a police investigation, complainant was determined to have committed a
criminal offense and that her suspension and early retirement resulted
from that finding. The AJ also found that there was no evidence that A-1's
attitudes about Blacks played any role in the events that occurred.
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 United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
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).
After a careful review of the record, we find that the AJ erred when he
concluded that there were no genuine issues of material fact in this case.
D-2 testified that A-1, on several occasions, made racially derogatory
comments about complainant and indicated that she could manipulate the
surveillance tapes in order to �set up� complainant. Also, complainant
testified that the surveillance tapes of her transactions with the
customer were altered. At the very least, a genuine issue of material
fact exists, i.e., whether complainant stole government property
on October 28, 1996. In summary, we find that there needs to be an
assessment of the credibility of A-1, D-1, D-2, D-3 and complainant.
Therefore, judgment as a matter of law for the agency should not have
been granted. 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 complaint is remanded to the Hearings Unit of the Commission's San
Francisco District Office for scheduling of a hearing in an expeditious
manner. The agency is directed to submit a copy of the complaint file
to the above 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 above 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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
_08-28-00_________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant operated a cash register. According to the record, on
October 28, 1996, a surveillance camera observed complainant committing
a questionable transaction. The videotape incident apparently depicts
a customer giving complainant $100.00 in payment for a jacket and a
candy bar. The total amount of the purchase was $84.89. Complainant
gave the customer $15.11 in change. Complainant, according to A-1,
did not provide the receipt to the customer, but instead kept it and
wrote later �void� and �wrong price: should have been $3.99.� Although
A-1 did not see complainant remove any money from the cash register,
she noted that the �Canteen did not get that money at the end of the day,
so where is it?�
3In January 1997, complainant was informed that she would not be
prosecuted.
4Because of his social interactions with A-1, D-2 maintained that he
knew a great deal about complainant before he actually met her.
5The record also contained affidavits from numerous employees who
testified that they never heard A-1 make derogatory statements of any
kind about complainant or any other employee.