01986053
04-24-2001
Deborah A. Wachter, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Deborah A. Wachter v. Social Security Administration
01986053
April 24, 2001
.
Deborah A. Wachter,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01986053
Agency No. 950112SSA
Hearing No. 120-97-4008X
DECISION
Deborah A. Wachter (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
(White), sex (female) and age (48 at relevant time) when:
1. on September 16, 1994, she received a performance rating of
Excellent, rather than Outstanding for the appraisal period ending
September 16, 1994;
2. on October 14, 1993, she received a performance rating of Excellent,
rather than Outstanding, for the appraisal period ending September
30, 1993.
Complainant also alleges that she was subjected to retaliation for her
prior EEO activity when, on November 17, 1994, her supervisor called
a staff meeting during the same time period that a social activity had
been planned to celebrate complainant's promotion.
For the following reasons, we VACATE and REMAND the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Labor Relations Specialist, GS-12, with the Office of
Labor-Management Relations at the agency's Headquarters in Washington,
D.C. Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a formal complaint on December 2,
1994. 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 first concluded that complainant's claim of reprisal was moot and
failed to state a claim. The AJ noted that the action was not likely
to be repeated, as complainant was no longer employed by the agency.
He also held that the scheduling of a contemporaneous staff meeting
during complainant's going-away party was not an adverse employment
action rendering complainant aggrieved.
The AJ then concluded that complainant failed to establish a prima facie
case of race, sex, or age discrimination, noting that the two other GS-12
Labor Relations Specialists also received overall ratings of �Excellent�
on the relevant performance appraisals. The AJ concluded that complainant
presented no evidence that any similarly situated individual outside her
protected classes received more favorable treatment. The AJ found that
the individuals named by complainant who received �Outstanding� ratings
were GS-13 Labor Relations Specialists with more complicated duties than
complainant and thus not similarly situated to her. In addition, the
AJ noted that complainant presented no evidence that the criteria used
to determine performance ratings were based on any discriminatory animus.
The AJ went on to find that the agency articulated legitimate
non-discriminatory reasons for its actions. Specifically, the AJ found
that the performance appraisal included ratings in five generic job tasks.
Complainant received an �Outstanding� on two �non-critical� elements
and one �critical� element and �Excellent� on the other two �critical�
elements, resulting in an overall rating of �Excellent�. The critical
elements on which she received an �Excellent� were labeled Generic Job
Task (GJT) 49 and 68. GJT 49 included �Counsels, advises and consults in
areas of expertise�. GJT 68 included �Prepares memos' reports and other
written work product.� The AJ found credible the rating official's (RO)
explanation for these ratings, as described in his affidavit. RO stated
that complainant received an �Excellent� rating on GJT 49 because she
provided excellent, but not outstanding, service to her managers and
supervisors. RO also noted that complainant received an �Excellent�
rating on GJT 68 because her written work product tended to be abrasive
and lacked continuity. The AJ concluded that complainant failed to
establish that these explanations were a pretext for discrimination. The
agency's final action implemented the AJ's decision.
Complainant raises similar arguments on appeal to those she raised before
the agency and the AJ. She notes that the AJ denied her the opportunity
to challenge the credibility of RO's statements and argues that she
established a prima facie case. 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).
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 first determined
that complainant failed to establish a prima facie case. We note,
however, that complainant argued throughout the investigation that it
was her �Excellent� rating on GJT 49 that led to her overall rating of
�Excellent� as opposed to �Outstanding� and that this rating was based
on her race, sex and age. She also noted that the other two GS-12 Labor
Relations Specialists, a Black female over 40 and a Black male under 40,
received an �Outstanding� on GJT 49. She argued that although both these
comparators received an overall rating of �Excellent,� they were treated
more favorably than she in regard to the GJT 49 rating, noting that if
she received an �Outstanding� in this category, her overall rating would
have been �Outstanding� and she would have received a performance award.
Complainant therefore established a prima facie case of race, sex and
age discrimination.
Furthermore, the AJ then relied on the representations of RO as provided
in his affidavit, determining from RO's statements that complainant's
work in the relevant categories was not outstanding. The AJ made this
determination despite the fact that complainant provided extensive
documentary and testimonial evidence to support her assertion that her
work in the relevant categories deserved a rating of �Outstanding.�
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.� 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, the parties have adduced
conflicting evidence on issues of material fact. These unresolved issues
require an assessment as to the credibility of the various management
officials, as well as complainant. 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 VACATES 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 Baltimore 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 (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 24, 2001
Date