01A12812
05-08-2002
Joyce Shelton, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Joyce Shelton v. Department of the Navy
01A12812
May 8, 2002
.
Joyce Shelton,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12812
Agency No. 99-42912-010
Hearing No. 100-A0-7946X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning her 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 vacates
and remands the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Budget Analyst, NH-III (GS-560-12) at the agency's Naval
Sea Systems Command facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on July 30, 1999, alleging that
she was discriminated against on the bases of race (African-American),
color (dark), and reprisal for prior EEO activity when, on May 24, 1999,
she received a level 4 (�Exceeds Fully Successful�) performance rating
for the period of October 1, 1998 to February 28, 1999.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file 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 establish a prima facie case
of race and color discrimination, noting that complainant had failed to
identify any similarly situated employees, outside complainant's protected
classes who were treated more favorably. With respect to complainant's
reprisal claim, the AJ found that complainant presented a prima facie
case but failed to rebut the agency's articulated, non-discriminatory
reasons for its employment action.
The agency's final action implemented the AJ's decision.
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 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 was no genuine issue of material fact in this case.
In finding no discrimination, the AJ failed to address various statements
by complainant and a co-worker which, if believed, could establish
reprisal, by a preponderance of the evidence.
The record shows the following, when viewing the evidence in the light
most favorable to complainant.<1> Complainant was supervised by her
first-line supervisor (S1) (Caucasian, white, prior EEO activity unknown).
Complainant's co-worker (C1) was also supervised by S1 at all relevant
times herein. In November 1998, C1 filed an EEO complaint for sexual
harassment against S1. In December 1998, C1 was interviewed regarding
her sexual harassment allegations by an EEO investigator. Following
this interview, S1 became hostile and aggressive toward C1. The EEO
investigator interviewed complainant, in January 1999, about the sexual
harassment complaint that C1 filed against S1. A day or two after the EEO
investigator interviewed complainant, S1 saw complainant talking to C1.
He angrily shouted at complainant to come into her office immediately.
In the office, S1 began to shout at complainant in a loud and angry voice.
S1 instructed complainant not to converse with C1 anymore.
In addition, after C1 filed her EEO complaint against S1, her performance
rating was lowered from a level four to a level three. According to
C1, her work performance was consistent in both rating periods. Also,
after complainant was interviewed by the EEO investigator, S1 lowered
complainant's performance rating from a level five to a level four.
The EEO investigator also interviewed another co-worker (C2) (Caucasian)
between December 1998 and January 1999. S1 was aware that C2 and
complainant were interviewed because both employees notified S1 of the
reason for their absence from their work station. C2 gave a statement
which supported S1 and indicated that she saw no evidence of harassment.
C2 informed co-workers of the contents of her EEO statement. Thereafter,
C2's performance rating increased from a level three to a level four.
The AJ concluded that complainant failed to produce any evidence
in support of her bald assertion that her performance was the same
as the year before when she received a level 5 rating. The AJ also
concluded that complainant failed to submit any evidence in support of
the allegation that C2's performance rating improved after she gave a
statement in support of S1. The AJ, specifically, found no evidence
that S1 was aware of the contents of C2's statements.
While there is no specific evidence as to whether or not S1 was aware
of the statements provided by complainant and C2, it must be assumed
that S1 was aware of the statements since they were provided during the
formal EEO investigation and, accordingly, it is likely that the EEO
investigator provided S1 with the statements in order to provide her with
an opportunity to respond. In addition, C2 testified that she informed
her co-workers of the contents of her EEO statement. Accordingly, we
find that a reasonable fact-finder could conclude that such information
was passed on to S1. Moreover, the AJ fails to address the statements
provided by C1 and complainant which assert that S1 became hostile and
aggressive toward C1 and complainant immediately following their EEO
activity against S1. This evidence could support an inference that S1
was aware of the protected EEO activity.
Upon reviewing the record in a light most favorable to complainant,
we find sufficient evidence in the record to support a conclusion
that complainant was retaliated against when her performance rating
was lowered.
We note that 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(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). Hence, there are unresolved issues which require an
assessment as to the credibility of the various management officials,
co-workers, and complainant, herself. Therefore, judgment as a matter
of law for the agency should not have been granted.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, 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 (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
May 8, 2002
__________________
Date
1 Complainant's statements were corroborated
by a co-worker (C1).