0120080481
09-11-2009
Margaret Sheflin, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Margaret Sheflin,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120080481
Hearing No. 520-2006-00345X
Agency No. F056013
DECISION
On November 4, 2007, complainant filed an appeal from the agency's
September 26, 2007 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission VACATES the agency's final
order.
ISSUE PRESENTED
Whether this record contains genuine issues of material fact and/or
credibility which require resolution at a hearing before an EEOC
Administrative Judge.
BACKGROUND
At the time of events giving rise to this complaint, complainant was a
Paralegal Specialist, assigned to the New York Field Office (NYFO), with
collateral duties as an EEO Counselor. On April 7, 2005, complainant
filed an EEO complaint alleging that she was discriminated against on
the basis of reprisal for prior protected EEO activity [arising under
Title VII]1 when:
(1) on December 23, 2004, the Flexitour Committee did not approve
complainant's request for a flexible schedule; and
(2) she was no longer permitted to work at the Hudson Valley Resident
Agency (HVRA) effective March 7, 2005, and was instructed to return to
New York Field Office (NYFO).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's December 14, 2006 motion for a decision
without a hearing and issued a decision without a hearing on August
29, 2007.
The AJ initially provided the following background information: in June
2004, complainant suffered a back injury while at home. The next work
day, complainant informed her supervisor (S1)2 about her injury and asked
for permission to work at the HVRA for a period of two weeks, although
her assigned work location was NYFO. Complainant's commute to the NYFO
required about two and half-hours one way, while her commute to the HVRA
involved only twenty-five minutes of driving. Between June and December
of 2004, complainant supplied several additional doctor notes related to
this request. On October 7, 2004, S1 requested that complainant provide
"proper" medical documentation specifically addressing complainant's
diagnosis, prognosis for recovery, and reasons why her duties could not
be performed at the NYFO.
In early November 2004, a "Flexitour" Committee was formed to address
the large number of support employees working modified schedules.
The Committee required employees to undergo a formal process to ensure
that their modified schedules were procedurally supported and approved.
Complainant (among others) submitted forms requesting approval of her
flexible schedule. Complainant specifically described her long commute
from Orange County to Manhattan, and her responsibility to pick up her
nephew from an after school program. In late December 2004, the Flexitour
Committee denied her request. Six members of the Committee recalled
that complainant's request was denied on the basis that childcare issues
surrounding nephews and nieces were outside the scope of the agency's
responsibilities. A subsequent review of complainant's modified schedule
request alerted the agency to the fact that complainant was still working
at HVRA although her assignment was at the NYFO. Soon thereafter the
agency underwent an investigation of complainant's medical files in order
to determine whether her injury necessitated her continued work at HVRA.
After review, the agency determined that her temporary work status at HVRA
was improper and directed her to return to the NYFO on March 7, 2005.
The AJ then found the following as to issue (1): complainant can establish
the first two prongs of the prima facie case for retaliation; however,
she is unable to establish that she was subjected to an adverse action
as to the denied schedule request. Although the Flexitour Committee
denied complainant's request for a modified schedule, she only needed
the modified schedule when working at NYFO, and she was still at HVRA,
the denied schedule request had no effect. In addition, at that point
in time, complainant had not proffered a date of probable return to the
NYFO, so the denial had no foreseeable effect on her employment.
The AJ then assumed arguendo that complainant had endured an adverse
employment action as to the denial of the requested schedule, and
found that complainant did not establish a causal connection between
her EEO activity and the denial of her flexible schedule. The AJ found
that construing the facts in the most favorable light to complainant,
the time period between her interviews with two managers (as part
of her duties as an EEO counselor), and the challenged action spans
about 12 months, which is too remote for retaliation to be inferred.
Complainant also does not provide any additional evidence supporting
a retaliatory motive that could subject the one year time period to a
further inquiry. Complainant herself in fact testified that there had
been no animosity between herself and S1 since the interview in 2003,
which makes a retaliatory motive unlikely.
The AJ then addressed issue (2), and found that complainant has
established that an adverse employment action took place when the
agency requested her to return to the NYFO location. The AJ found
however, that complainant fails to prove retaliation with respect to the
agency's request for her to return to the NYFO location because she is
unable to establish a causal connection between the interviews with S1
and another Supervisory Special Agent (S2) and the challenged action.
The agency requested her to return to NYFO in March 2005 however the EEO
counseling interviews which she conducted of S1 and S2 took place in 2003.
Construing the facts in the light most favorable to complainant, the time
period between the two events was about fifteen months. The AJ found
that a time period of fifteen months is too long to infer a retaliatory
motive on the part of the agency. The AJ further found that complainant
fails to provide further evidence of a retaliatory motive to subject
the one fifteen months to a further inquiry.
The AJ addressed complainant's allegation that S2 commented, for no
apparent reason, that the action had nothing to do with complainant
being an EEO Counselor. The AJ found however, that no evidence or
testimony within the record supported that she said this, and moreover,
S2 denied the comment. The AJ also noted that there are no documents
within the record recording this conversation. The AJ found that, in an
email between S2 and complainant dated December 30, 2004, there was no
reference to complainant as an EEO Counselor. Additionally, the AJ noted
that although complainant alleged that the Flexitour Committee appeared
to be "guided by the hand of [S2]," complainant did not demonstrate how
S2 controlled the decisions concerning complainant since the Flexitour
Committee's decisions are generally by unanimous vote. The AJ noted
additionally, that as to issue (2), the decision to order complainant
back to the NYFO was a group effort among S1, S2, Health Services,
and the Performance Recognition and Award Unit.
The AJ next found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect to
issue (1), several members of the committee recalled denying complainant's
application because the agency did not address child care issues for
nieces and nephews. Moreover, complainant's application incorrectly
implied that she needed the modified schedule because her commute to
NYFO was so long, yet she was not working there at the time.
The AJ then found as to issue (2) that the agency asserted that on January
5, 2005 a member of NYFO Health Services reviewed complainant's file
and reported to S1 that there was no sound medical reason justifying her
inability to commute, and there was no substantial information supporting
a need to continue working at HVRA. Specifically, the documents dated
June 17, 2004, June 29, 2004, September 13, 2004, October 25, 2004,
and December 27, 2004 included information only concerning complainant's
inability to commute to Manhattan and no further detail about her medical
condition. Therefore, complainant was instructed to return to NYFO.
The AJ then found that complainant failed to present any persuasive
evidence of pretext.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged. In its final order, the agency indicated that clarification
was needed. Specifically, the agency explained that the record is not
clear as to whether after complainant's schedule request was denied
(i.e. between December 2004 and March 2005), her schedule actually
changed. The agency stated therefore, that since the Flexitour Committee
denied her request, the Committee's decision amounted to an adverse action
(contrary to the AJ's finding). The agency nevertheless found however,
that as discussed in the AJ's decision, the record does not support
complainant's claims of retaliation.
CONTENTIONS ON APPEAL
On appeal, complainant, through counsel contends that the AJ erred in
finding that she failed to establish a causal connection between the
agency's actions and her protected EEO activity. She states that in
December 2004, S1 and S2 engaged in activities which were designed to
discredit and undermine complainant. Specifically, she claims that
her managers were attempting to show that she was "providing inaccurate
information" about where she was working, and this is what led to the
Flexitour Committee's denial of her request for a change in her work
schedule. Furthermore, complainant asserts that S2 acknowledges that
there was an email in May 2004 between herself and complainant concerning
complainant's protected work activity, and that S2 acknowledges that
she contacted EEO headquarters in October or November 2003, concerning
complainant and her protected work activity. In sum, complainant asserts
that she had sufficient contact with S2 concerning her protected EEO
activity in 2003 and continuing through the end of 2004 to infer that
the adverse actions taken by the agency in 2005 were causally connected
to the protected work activity. Complainant avers that one must look
at the totality of the circumstances, not just an arbitrary time period,
to determine whether an inference of reprisal can be drawn. The agency
requests that we affirm the final order.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing 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." 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). "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).
Judgment as a matter of law should not have been granted in this case as
the record contains genuine issues which must be resolved at trial. Under
the Commission's regulations, an agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation
would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). It is
clear that underlying claim (2), which addresses the basis of reprisal,
is an additional allegation that the agency violated the Rehabilitation
Act by failing to provide complainant with reasonable accommodation.
In this case, accepted issue (2), as described by the EEO investigator,
specifically mentions "reasonable accommodation" as follows:
On February 25, 2005, you were advised that effective March 7, 2005,
you would no longer be permitted to work at the Hudson Valley Resident
Agency, which you had been permitted to do as a reasonable accommodation
for your back injury, and that you were to report to division headquarters
in New York City.
Additionally, a review of the counseling report reveals that "Physical
handicap" was checked by complainant (or by the EEO counselor) as a basis
of alleged discrimination. Additionally, S1's letter to complainant dated
February 25, 2005, is contained in the record and states as follows:
In June of 2004, you notified me that you suffered a non-work related
injury to your back. From June 14, 2004 through June 18, 2004 you were
on Sick Leave. Subsequently, you submitted medical documentation from
the Oxford Medical Group, dated June 17, 2004, which read in part,
"Limitations/Remarks", "Cannot sit on train because of back problems
for approx 2 weeks.
ROI, Ex. 26.
When an individual decides to request accommodation, the individual or
his/her representative must let the employer know that s/he needs an
adjustment or change at work for a reason related to a medical condition.
To request accommodation, an individual may use "plain English" and
need not mention the ADA or use the phrase "reasonable accommodation."
The Commission finds that in June 2004, complainant requested reasonable
accommodation within the meaning of the Rehabilitation Act. In the
February 25, 2005 letter, S1 recognized that complainant had been
accommodated for eight months, and then cited "undue burden" on her
co-workers as a reason complainant could not continue to report to the
HVRA. Id. There is clearly a genuine issue for trial as to whether
or not the requirement that complainant return to NYFO in March 2005
constituted a failure to reasonably accommodate complainant within the
meaning of the Rehabilitation Act.
Next, as to issue (1), we note that complainant asserted that when
her request for a modified schedule was denied, complainant questioned
S1 about the denial and he referred her to S2. Complainant says that
during her subsequent conversation with S2, S2 stated that the denial
of complainant's alternative work schedule "had nothing to do with
the fact [she was] an EEO counselor." Complainant says this comment
was unprompted as she had made no reference to her EEO position during
this conversation. S2 denies that she made the comment. In ruling on a
Motion for a Decision Without a Hearing, the evidence of the non-moving
party must be believed and all justifiable inferences must be drawn in
the non-moving party's favor. Therefore, assuming the comment about
EEO counseling was made, a reasonable fact-finder could conclude that
retaliatory animus motivated the agency's conduct.
Additionally, complainant alleges that S2 played an influential role in
the Committee's decision to deny her schedule request. The AJ concluded
that there was no evidence that S2 played such an influential role.
However, S2's own statements suggest that she had substantial knowledge
about the Committee's decision-making process. For example, although
the Committee members testify that complainant's request was denied
because complainant was not the legal custodian of her nephew and they
could not accommodate her in a situation of that sort, S2 suggests that
the schedule request was also denied because complainant misrepresented
that she was working in the NYFO when she was not actually making that
commute which would allegedly necessitate the requested schedule. ROI,
Ex. 13 at 4. Drawing all justifiable inferences in complainant's favor,
a reasonable fact finder could conclude that S2 played an influential
role in the denial of the schedule request. Accordingly, the AJ will
need to hold a hearing in order to determine the actual extent to which
S2 influenced the Committee's decision to deny the schedule request, as
well as what the real motivation was for denying the requested schedule.
CONCLUSION
In this case, 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 for a hearing 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 (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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
______9/11/09____________
Date
1 Complainant's prior EEO activity consists of serving as an EEO
Counselor, and specifically, counseling/interviewing the same management
officials who allegedly discriminated against her in this case.
Complainant contends that the managers felt the EEO Office was biased
against management, and therefore, harbored retaliatory animus against
her.
2 S1 was a Supervisory Special Agent and Chief Division Counsel, NYFO.
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0120080481
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0120080481