The AJ found that this single event did not involve a threat to life such as a
hangman’s noose nor was it a deeply humiliating touch such as a frisk.
The AJ concluded that this incident was merely a verbal accusation to
complainant for which he took no action and later apologized for when
he realized he was incorrect.
Shermanita Ford v. United States Postal Service
01A10474
April 30, 2001
.
Shermanita Ford,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10474
Agency No. 1-K-206-0076-99
Hearing No. 120-A0-3272X
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 (Title VII),
as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The
appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleges
she was discriminated against on the bases of race (African-American),
sex (female), and age (DOB: June 12, 1952) when on February 26, 1999,
her supervisor accused her of writing racist and defamatory notes to him,
denting his truck, and stealing his wallet.
The record reveals that during the relevant time, Complainant was employed
as a Parcel Post Distribution Machine Operator (PPDMO), PS-5, at the
agency’s Bulk Mail Center at Capital Heights, Maryland. Sometime in
February 1999, complainant’s supervisor (Supervisor) saw two notes taped
onto a file cabinet in plain view. The notes were printed letters cut
from magazines and newspapers which were pasted on paper. The Supervisor
believed that the notes were derogatory and racist. The Supervisor
began an investigation to find who had placed the notes on the cabinet.
The Supervisor’s investigation centered on complainant. The Supervisor
spoke to several of complainant’s co-workers asking them if they had seen
her place the notes on the filing cabinet. The Supervisor showed the
coworkers the notes. Despite the fact that some of the co-workers told
the Supervisor that complainant was not at work, the Supervisor explained
that she had a friend place the notes for her. On February 26, 1999,
the Supervisor met with complainant and directly accused her of writing
the notes and posting them on his file cabinet but did not take any
disciplinary action. Complainant also indicated that she was accused
of denting his truck. During the same time period, the Supervisor’s
truck was dented in the parking lot and his wallet was stolen from his
file cabinet. About a month after the note incidents, a clerk (White,
male) confessed to creating and placing the notes on the file cabinet.
The Supervisor informed complainant that the clerk had confessed and
apologized for any discomfort which may have been caused by the situation.
Complainant contacted the EEO office because she felt that the negative
dialogue in her section continued. Believing she was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on July 26, 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 harassment. The AJ assumed for the purposes of his decision
that the Supervisor’s accusations were based on complainant’s race and
assumed that he had little or no basis for his belief that complainant
taped the notes to the file cabinet. The AJ found that the complaint
involved a single incident of accusations made in February 1999.
The AJ determined that complainant had only one confrontation with the
Supervisor on February 26, 1999, and that the conversations with her
co-workers were part of the same incident regarding the notes. The AJ
also noted that the Supervisor never accused her of stealing his wallet
and did not discipline her. When it was discovered that complainant
did not post the notes, the Supervisor apologized and acknowledged
that he should have handled the investigation in a different manner.
Furthermore, the AJ determined that although the incident was racist and
upsetting, it was not severe enough to create a hostile work environment,
thereby altering complainant’s terms and conditions of employment. The AJ
found that this single event did not involve a threat to life such as a
hangman’s noose nor was it a deeply humiliating touch such as a frisk.
The AJ concluded that this incident was merely a verbal accusation to
complainant for which he took no action and later apologized for when
he realized he was incorrect.
The agency’s final action implemented the AJ’s decision. Complainant
raises no new contentions on appeal. The agency stands on the record and
requests that we affirm its final action implementing 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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, 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).
In finding no discrimination, the AJ relied on his determination that
the alleged incident did not rise to the level of creating a hostile
work environment. In doing so, the AJ found that the complaint involved
only a single incident for which complainant was not disciplined.
The Commission finds that complainant’s claim does not consist of only
one incident on February 26, 1999. The record indicates that prior to
February 26, 1999, the Supervisor began an investigation regarding the
two notes which he found to be racist and derogatory. The Supervisor
contacted several employees and questioned them about complainant’s
involvement with the notes. The record also shows that the Supervisor
concluded that complainant was the individual behind the notes despite
the fact that others informed him that she was not at work on the day
the notes appeared. Complainant felt that the accusations made by the
Supervisor and his investigation of her resulted in an ongoing, negative
dialogue within her section. During this time frame, the Supervisor’s
truck was hit and his wallet stolen. Complainant alleged in her complaint
that the Supervisor accused her of being involved in these two additional
incidents. Further, complainant notes that all the accusations made by
the Supervisor have created “an arena of mistrust-distrust” and defamed
her character. Report of Investigation, p. 70-71. It was one month
later when a clerk confessed to posting the notes. The record indicates
that the clerk came forward only after he became aware of the situation
through workplace discussions. Based upon the Commission’s review of
the record, we find that clearly complainant’s claim of a hostile work
environment extends beyond the day she was verbally accused of posting
the derogatory notes. Therefore, the Commission finds that the issue
still remains as to whether the alleged incidents rise to the level of
establishing a prima facie case of harassment.
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.
Issues still remain unanswered regarding complainant’s work environment.
The record contains affidavits which are inconsistent and material to
the complaint. For example, one co-worker avers that he heard that
complainant damaged the Supervisor’s truck while other affiants state
that they never heard the Supervisor accuse complainant of hitting his
truck. Complainant also indicated in her affidavit that the distrust
and negative dialogue persisted resulting in doctor visits and use of
sick leave through July 1999. On the contrary, the Supervisor averred
that he has not had any problems with complainant since the accusations.
The Commission finds that these issues are still unresolved.
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 6, page 6-1; see also
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.“ 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, herself. Therefore,
judgment as a matter of law for the agency should not have been granted.
Accordingly, 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 appropriate EEOC 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 request and complaint file have been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with the regulation set forth
at 29 C.F.R. § 1614.109 and the agency shall issue a final action in
accordance with the regulation set forth at 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0900)
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)(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 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0900)
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
April 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
