01a00367
04-10-2000
Luvenia Nix, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Luvenia Nix, )
Complainant, )
) Appeal No. 01A00367
v. ) Agency No. DOT-1-98-1053
) Hearing No. 160-99-8416X
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency action
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The record reveals that during the relevant time, complainant was an
employee relations specialist at the agency's facility JFK International
Airport, Jamaica, New York. Complainant alleges she was discriminated
against on the basis of reprisal for her prior EEO complaint. On November
10, 1997, complainant's Team Leader (TL) presented complainant with
a notice that complainant had been promoted which had been an issue
in a prior EEO complaint. Complainant became angry and made a remark
regarding the delay in the promotion. According to the TL, complainant
made threatening remarks over the phone which complainant contends
were unrelated to anyone at the office. The TL contacted complainant's
Manager (Manager) about the incident. The next working day, November
12, 1997, the Manager called complainant into her office to discuss the
situation and placed complainant on administrative leave for that day
so that the agency's Civil Aviation Security Office could investigate
the matter. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint on
February 5, 1998. The agency's security investigation concluded that
complainant had never made any threatening remarks nor was her conduct
considered violent toward any of her co-workers. The agency, however,
still issued complainant a Letter of Warning (LOW) dated March 31, 1998,
for disorderly and inappropriate behavior referring to statements that
co-workers considered to be threatening. The LOW claim was included in
complainant's EEO complaint and accepted by the agency for investigation.
At the conclusion of the EEO 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 retaliation, noting that complainant filed an EEO complaint
in June 1997, however, the event at issue occurred after she became
angry due to a delay in her promotion. The AJ further noted that had
complainant established a prima facie case of reprisal discrimination,
she failed in showing the ultimate burden that the agency's legitimate,
nondiscriminatory reason for the disciplinary action, namely that
complainant's actions were threatening, was pretext for discrimination.
Accordingly, the AJ concluded that complainant failed to demonstrate
by a preponderance of the evidence that the agency's actions were in
retaliation for her prior EEO activity.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the statements
she made on November 10, 1997, were not threatening in nature to anyone.
She further contends that the co-workers and management involved in this
complaint are the same individuals named in her prior EEO complaint.
Complainant also states that the co-workers and management individuals
were contacted by an EEO investigator about questions regarding her prior
EEO complaint the week complainant allegedly made threatening remarks.
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 was no genuine issue of material fact in this case.
In finding no discrimination, the AJ relied on the representations of
management officials as provided in their affidavits. Upon review of the
record, the Commission finds that complainant clearly has established a
prima facie case of reprisal discrimination. The allegations against
complainant were raised when co-workers and managers named in a prior
EEO complaint were contacted by the EEO office to set up interviews
regarding the complaint. Further, TL was delivering a notice of
promotion which had also been the issue of a prior EEO complaint
filed by complainant. In addition, the Commission finds that Manager's
decision to issue complainant a LOW for making threatening remarks toward
co-workers and managers suspect especially in light of the agency's
security investigation which exonerated complainant of those charges.
The Commission also finds that the record is unclear as to the content
and intent of the remarks allegedly made by complainant as well as the
effect the remarks had on the co-workers.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensur[e] 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 6, page 6-1; see also 64
Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. �� 1614.109(c) and (d)). �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, there are simply too many
unresolved issues which require an assessment as to the credibility of
the various management officials, co-workers, and complainant, himself.
Therefore, judgment as a matter of law for the agency should not have
been granted.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, and the agency's response, 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 appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
April 10, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
MEMORANDUM
TO: Hearings Unit, New York District Office
FROM: Carlton M. Hadden, Acting Director
DATE: 03/30/00
RE: Luvenia Nix v. DOT, EEOC Appeal No. 01A00367
Enclosed is a DECISION requiring the above referenced complaint
be assigned to an Administrative Judge. We request that the
Administrative Judge notify the Compliance Division at the Office of
Federal Operations after a decision has been issued. If there are
any questions concerning the further processing of this complaint,
please contact Robert Barnhart, Acting Director of Compliance and
Control, at (202) 663-4525.1On 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.