0720080037
02-11-2009
Pamela J. Whitson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Pamela J. Whitson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0720080037
Hearing No. 320-A2-X2559
Agency No. 0162507008
DECISION
On April 8, 2008, the agency filed an appeal from an EEOC Administrative
Judge's summary judgment decision in favor of complainant 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 and REMANDS the complaint
for further processing.
Complainant filed an EEO complaint dated September 20, 2001, alleging that
she was subjected to a hostile work environment and discriminated against
on the bases of sex (female) and disability (depression) when: (1) she was
forced to retire; (2) on April 27, 2001, management suspended her for 14
days; (3) management interfered with her leave by requiring burdensome
medical documentation and denied her requests for advance sick leave;
(4) on August 15, 2001, management proposed to remove her for failure
to follow leave procedures; (5) management interfered with her Workers'
Compensation Claim; (6) in early July 2001, management failed to place
her household goods in storage or ship them from Japan to the United
States; (7) management interfered with and delayed the processing of her
disability retirement; (8) management unfairly criticized and counseled
her regarding her performance and placed her on a performance improvement
plan; and (9) management removed her from the Priority Placement Program
(PPP).
After the completion of the EEO investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On August 11, 2004,
the AJ issued a Notice of Intent to Issue Decision Without a Hearing.
In the Notice, the AJ advised the parties that it was her intent to issue
a decision without a hearing "in favor of the Agency." In reply to the
Notice, complainant submitted a Memorandum in Support of Decision Without
a Hearing, dated November 1, 2004. Complainant argued in the November 1,
2004 Memorandum that "sufficient factual disputes are present to require
a hearing." The agency submitted its Response to Complainant's Memorandum
in Support of Decision Without a Hearing which was dated July 18, 2005.
The agency argued in its July 18, 2005 Response that "there is no material
issue of fact to preclude summary judgment." On September 30, 2005, the
AJ issued an Interim Decision without a hearing in favor of complainant
based on her sex and disability (depression) when the agency "refused
to properly accommodate her disability and take disability retirement."
The agency then filed a Motion in Opposition to the Interim Decision and
Request for Hearing dated June 8, 2007. The agency argued in the June 8,
2007 Motion that there are numerous genuine issues of material fact and
that a decision without a hearing was not appropriate. On February 27,
2008, the AJ issued a Decision awarding $40,000 in non-pecuniary damages
and $29,125 in attorney's fees.
FACTUAL BACKGROUND
The record indicates that complainant was absent for extended periods
during 2000 and 2001. The agency asserts that complainant's absences
involved a mixture of Family and Medical Leave Act (FMLA) leave to care
for her mother, approved annual and sick leave, leave without pay, and
unauthorized leave. According to the agency, on September 4, 2000,
complainant left a leave request on the desk of the Assistant Public
Works Officer (PWO). In this request, complainant asked for leave from
September 5, 2000 through September 12, 2000, "due to medical problems."
According to the agency, this leave request did not include a statement
from a physician or health care provider as required by agency policy.
On September 5, 2000, complainant's supervisor, the Public Works Officer
(S1) sent complainant a memorandum requesting medical documentation
to support her request for sick leave. S1 sent complainant a second
memorandum regarding sick leave on September 20, 2000. This memorandum
contained a detailed explanation of the need for a statement from
a physician indicating that complainant was incapacitated for the
period covered by her leave request. In response to S1's request,
complainant requested administrative leave and/or advance sick leave
and a "compassionate reassignment" to Hawaii to care for her mother.
On September 26, 2000, complainant was directed to contact the Human
Resources Office (HRO) regarding additional paperwork required for advance
sick leave and the leave donor program, as well as information regarding
vacant positions in Hawaii.
Complainant's leave request was denied and she was placed in Absent
without Leave (AWOL) status during the first week of September, 2000.
According to the agency, complainant later submitted a statement from
her physician (P2) and was granted leave without pay (LWOP) for the
remainder of September, 2000.
On October 2, 2000, complainant was placed on a Performance Improvement
Plan (PIP) by S1. The notice of unacceptable performance documented
various performance deficiencies observed by S1. "Budget execution,
tracking, and reporting" was the first deficiency noted by S1. Other
deficiencies included failure to keep her superiors informed of matters
that should have been brought to their attention, unauthorized use of
"by direction" authority, and failure to develop an Individual Training
Plan (IDP) for her subordinates.
Complainant left work again on October 16, 2000. FMLA leave to care
for her mother in Maryland was tentatively approved from October
16, 2000 through November 3, 2000, before complainant left Atsugi.
The approval was subject to a requirement for medical documentation from
her mother's physician. According to the agency, at the time of her
departure, complainant provided S1 with a Maryland address for future
contact, yet on October 8, 2000, a letter sent by the agency regarding
complainant's pending leave requests was returned as "undeliverable."
The agency also claimed that complainant failed to report back to work
as expected on November 6, 2000. In a memorandum dated November 24,
2000, S1 warned complainant that she would be carried in an unauthorized
absence status if she failed to provide appropriate medical documentation
to support her request for FMLA leave. On or about November 30, 2000,
complainant sent S1 a request for advance sick leave via facsimile.
The agency asserted that this request for leave was apparently a request
for FMLA leave to care for her mother, but could also be interpreted as
a request for leave to seek her own medical treatment.
On December 8, 2000, complainant sent S1 another series of leave requests
via facsimile. These requests asked for advance sick leave but did not
include supporting medical documentation. In response to this request,
S1 sent complainant a letter explaining the requirements for advance
sick leave. On January 25, 2001, S1 wrote complainant another letter
reiterating the need for medical documentation to support her request
for advance sick leave. According to the agency, at the time of this
letter, S1 had received a limited amount of information regarding the
medical condition of complainant and her mother. The agency asserts
that because the medical information available to him was limited, S1
treated complainant's absence from November 6, 2000 through November
30, 2000, as AWOL. Complainant subsequently provided S1 with a brief
statement from a physician with the Army medical center in Hawaii (P3).
This statement identified complainant as a patient of another physician
(P4) who was on leave. According to P3, complainant was improving but her
mother's condition was worsening, which added to complainant's stress.
On February 1, 2001, S1 issued a letter of reprimand to complainant.
The reprimand documented various attempts by S1 to counsel complainant
regarding the need for medical documentation to support leave requests.
The agency asserts that S1 attempted to discuss leave requirements with
complainant during several telephone conversations, but that complainant
abruptly hung up in the middle of the conversations. S1 characterized
this conduct as "unprofessional."
On February 4, 2001, complainant submitted an application for disability
retirement to the United States Office of Personnel Management (OPM).
The agency asserts that complainant's application included various medical
documents that were not previously provided to S1 to support her requests
for leave. On March 14, 2001, S1 issued complainant a notice of proposed
suspension. This notice described the various attempts between September
of 2000 and February of 2001, to obtain medical information needed to
support complainant's requests for sick leave, advance sick leave, and
FMLA leave. S1 proposed a 14-day suspension because of complainant's
failure to follow leave request procedures for an excessive period of
AWOL.
In response to the proposed suspension, complainant provided medical
documentation from P2 that the agency claims had not previously been
made available to S1. This new medical documentation was undated.
The new statement from P2 included more detailed information regarding
complainant's condition and her treatment during September of 2000.
Because of the additional information provided by P2, complainant's
absence from September 12 through September 30, 2000, was changed from
AWOL to approved leave. Nevertheless, on April 18, 2001, the Commander
(CO) signed a decision letter suspending complainant for 14 days,
effective April 27, 2001.
The record shows that complainant requested that personal property
she left in Atsugi also known as "household goods" (HHG) be shipped
back to her in the United States. To determine whether a HHG shipment
was authorized, HRO asked for the assistance of the Civilian Personnel
Management Service (CPMS) in Washington, D.C. in an e-mail dated June
28, 2001. HRO believed that a HHG shipment was not authorized until
complainant either transferred to a position in the United States or was
separated. After a series of e-mails, HRO's interpretation of relevant
provisions of the Joint Travel Regulations was confirmed. HRO notified
complainant of the results of this inquiry in an email dated July 22,
2001.
On August 15, 2001, a notice of proposed removal was issued to complainant
by S1. The notice proposed complainant's removal because she had been
unable to work for an extended period. Complainant retired on disability
effective August 24, 2001.
AJ'S DECISION
In her decision, the AJ stated that "complainant properly set forth
the undisputed facts and applicable law in the Response to the Letter of
Intent and Motion for Summary Judgment is GRANTED." Without setting forth
any analysis, the AJ summarily concluded that "the agency unlawfully
discriminated against complainant based on her sex, and disability
(depression) when the agency refused to properly accommodate her
disability and take disability retirement."
CONTENTIONS ON APPEAL
The agency asserts on appeal that the AJ erred in concluding that
the record is devoid of facts sufficient to raise a genuine dispute
of material fact sufficient to entitle the agency to a hearing.
Specifically, the agency asserts that a threshold issue of material fact
exists on the question of whether complainant was, in fact, a "qualified
individual with a disability" in accordance with the Rehabilitation Act.
The agency asserts that complainant admits that she cannot perform
the essential functions of the job. Specifically, the agency notes
that complainant noted in her pleadings in the record that "her mental
disability has prevented her from working at all . . . This is not
a case of not being able to work in a particular job." In addition,
the agency asserts that the evidence of record does not establish that
complainant provided any medical documentation identifying any limitations
with respect to any major life activity. Moreover, the agency asserts
that complainant did not request any accommodation that would allow her
to perform the essential functions of her job. In addition, the agency
asserts that management did not treat complainant as though she were a
qualified individual with a disability, i.e., did not regard complainant
as disabled.
In addition, the agency argues that, assuming complainant can establish
a prima facie case of discrimination based on sex (female), management
provided legitimate, nondiscriminatory reasons for all actions taken
against complainant. Specifically, S1 asserts that complainant had
several performance deficiencies and her lack of improvement required
closer scrutiny and resulted in her being placed on a PIP. Of particular
note was complainant's failure to plan, execute, track, and report
on the status of the project portion of the Fiscal Year 1999 (FY99)
Housing budget. According to management, even after numerous discussions
complainant never completed this task.
The agency further argues that, contrary to complainant's assertions, she
was ineligible for PPP due to her unacceptable performance and failure
to follow leave procedures. Thus, complainant was removed from PPP.
The agency also asserts that management requested medical documentation in
accordance with agency regulations and practices, yet complainant never
furnished the required medical documentation. The agency also asserts
that on several occasions complainant did not return from scheduled
leave as required and did not properly request leave in a timely fashion.
The agency also argues that the evidence of record indicates that the
agency's decisions to suspend complainant and to seek complainant's
removal were due to her failure to follow leave procedures, her excessive
AWOL, and her extended unavailability for work. The agency notes that in
addition to other absences, complainant was absent for a continuous period
of over eight months prior to the proposed removal. The agency also notes
that S1 denies stating that "he did not want a woman as housing manager."
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, de novo. See 29 C.F.R. � 1614.405(a); see also
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case with
fresh eyes. In other words, we are free to accept (if accurate) or reject
(if erroneous) the AJ's factual conclusions and legal analysis - including
on the ultimate fact of whether intentional discrimination occurred,
and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, � VI.A. (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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). Finally, an AJ should not rule in favor
of one party without holding a hearing unless he or she ensures that
the party opposing the ruling is given (1) ample notice of the proposal
to issue a decision without a hearing, (2) a comprehensive statement of
the allegedly undisputed material facts, (3) the opportunity to respond
to such a statement, and (4) the chance to engage in discovery before
responding, if necessary. According to the Supreme Court, Rule 56 itself
precludes summary judgment "where the [party opposing summary judgment]
has not had the opportunity to discover information that is essential
to his opposition." Anderson, 477 U.S. at 250. In the hearing context,
this means that the administrative judge must enable the parties to engage
in the amount of discovery necessary to properly respond to any motion for
a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting
that an administrative judge could order discovery, if necessary, after
receiving an opposition to a motion for a decision without a hearing).1
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, in appropriate
instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); 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 25, 1995).
We also note that while an AJ may issue a decision without a hearing sua
sponte, he or she must first provide notice to the parties regarding his
intent to issue a decision without a hearing. See Basile v. Department of
Transportation, EEOC Appeal No. 01A53908 (January 24, 2006). Moreover,
the notice must: (1) indicate in whose favor summary judgment is being
proposed; (2) identify the applicable legal standards and burdens of
proof with respect to each claim; (3) set forth the legal standards for
issuance of a decision without a hearing; (4) identify the undisputed
material facts which appear to be dispositive of the case; and (5) direct
the parties to cite to specific evidence contained in the report of
investigation which creates a factual dispute regarding a material issue
and to include any relevant documentary evidence or witness statements,
interrogatory answers, admissions, or other supporting materials from
outside the report of investigation, with an explanation of the relevance
of all materials submitted. See id.
In the case at hand, we find that the AJ did not follow these appropriate
procedures, which deprived the agency of notice of the AJ's intent to
issue summary judgment in favor of complainant and deprived the agency
of an opportunity to submit additional evidence and arguments opposing
the issuance of a decision by summary judgment.2 To the extent that
S1's alleged sex-based comments may constitute direct evidence of
discrimination, the AJ's failure to provide proper notice deprived
the agency of the opportunity to produce S1's supplemental affidavit
(categorically denying such allegation) before the issuance of the
AJ's decision.3 Accordingly, the assertion by complainant that the
supplemental affidavit constitutes untimely new evidence that should not
be considered on appeal is without merit. Further, assuming, arguendo,
that the agency had proper notice of the AJ's intent to issue a summary
judgment decision in complainant's favor, we nevertheless conclude that
genuine issues of material fact exist with respect to whether complainant
is a qualified individual with a disability within the meaning of the
Rehabilitation Act. Therefore, the issuance of summary judgment in
favor of complainant was in error and we shall remand the complaint for
a hearing.
CONCLUSION
The agency's decision is VACATED and the complaint is REMANDED for a
hearing in accordance with this decision and the Order herein.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Charlotte
District Office the request for a hearing within 15 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 15 days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth herein 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 (K1208)
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 77960, Washington,
DC 20013. 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 (R0408)
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 (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
February 11, 2009
Date
1 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).
2 The AJ's Notice did not advise the parties that she was inclined to
issue a summary judgment decision in favor of complainant.
3 We note in particular that the EEO investigator did not mention
the alleged sex-based comment during his interview of S1 or otherwise
give S1 an opportunity to respond to such an allegation during the EEO
investigation.
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0720080037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036