01A21264
12-04-2003
Mary L. Vannoy, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Mary L. Vannoy v. Department of the Air Force
01A21264
December 4, 2003
.
Mary L. Vannoy,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21264
Agency No. AR000020023
Hearing No. 360-AO-8193X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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
VACATE the agency's final decision and REMAND the complaint for a hearing.
The record reveals that complainant, a Realty Specialist, GS-13, at the
agency's Kelly Air Force Base, in Texas, filed a formal EEO complaint on
June 24, 1999, alleging that she was subjected to hostile work environment
harassment<1> due to her sex when she was counseled about her late return
from a picnic and leaving the work area to go to a non-appropriated fund
(NAF) sale. By amendment, complainant alleges that she was subjected
to excessive scrutiny and criticism.
At the conclusion of the investigation, complainant received a copy
of the investigative report 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 harassment and the agency articulated legitimate non-discriminatory
reasons for all of its actions. Specifically, the AJ found that
there was no evidence to suggest that other employees had also left
without permission to attend the NAF sale. The AJ also found that male
co-workers attended the fiesta picnic and exceed their lunch hours,
and that they were counseled for the same infraction as complainant.
The AJ noted that complainant had a consistent problem with failing to
arrive at work on time and being absent from the workplace and that she
had been counseled before for the same infraction. The AJ concluded that
a supervisor certainly has the right to insist that employees comply
with time and attendance matters. Finally, the AJ concluded that it
was clear that complainant's supervisor (S1) was stern and demanding
supervisor who was not particularly well liked by his employees, however,
there is not evidence of hostile work environment based on sex. The AJ
noted that the evidence showed that S1 treated the males in the office
the same as females when it came to time and attendance. The AJ found
that there were other males in the office who stated that they had been
similarly counseled.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ's decision incorrectly
weighed the evidence and ignored statements by witnesses which indicated
discriminatory animus on the basis of sex by S1. Complainant also
contends that the AJ's findings ignore the evidence of a number of
witnesses who provided declarations as part of her response and stated
that there were significant disparities in the way S1 treated males and
females in the workplace. Complainant alleged that if she arrived 2-3
minutes late, she was not permitted to make up the time, no matter how
long she stayed late. Complainant alleged that in contrast, if male
employees stay late, they are permitted to come in late afterwards.
Complainant contends that S1 required women to leave their timesheets
out while they were gone to lunch, and women would have to note the exact
time of departure and return, however, men's desks would have no evidence
of timesheets out on their desks like women were required to have.
ANALYSIS AND FINDINGS
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 be used
as �trial by affidavit.� Redman v. Warner, F. 2D 766, 768 (1ST
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is ta 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
she concluded that there was no genuine issue of material fact in this
case. The AJ has performed of weighing of evidence and assessment of
credibility that may not be engaged in the course of arriving at a summary
judgment. The record amply demonstrates that this is a factual dispute
between the parties concerning the way that complainant's supervisor
(S1) treated males and females in the workplace. Specifically, the
record reveals that complainant described differing standards for time
and attendance; differing treatment of leave and compensatory time issues
and excessive scrutiny of the females working under S1. The record also
reveals that S1 alleged that he established the same policy for everyone.
Each party has submitted competent evidence, in the form of witness
affidavits, supporting the facts asserted. Complainant, for her part,
asserts as an example of harassment based on sex that if she arrived 2-3
minutes late, she was not permitted to make up the time, no matter how
long she stayed late. Complainant alleged that in contrast, if male
employees stay late, they are permitted to come in late afterwards.
Complainant's evidence, if taken true, as it must be in the context of
summary judgment, would be sufficient to support a finding of harassment
based on sex. There is, therefore, a genuine issue of material fact
which precludes summary judgment.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and 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 EEOC's San Antonio
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 Hearing 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 (S0900)
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 (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
December 4, 2003
__________________
Date
1We find that the AJ identified the issue as a sexual harassment
(hostile work environment), after reviewing the file, we conclude that
it is more appropriate to identify the issue as harassment based upon
complainant's sex.