01a10164
04-24-2001
Richard J. Murray, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Richard J. Murray v. Department of the Army
01A10164
4/24/01
.
Richard J. Murray,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A10164
Agency No. AWGRFO9709H0620
Hearing No. 270-99-9011X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his 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. Complainant alleges he was discriminated against
on the basis of race (Black) when: (1) in May 1997, his supervisor
deliberately misused his discretion by working him to the point of
exhaustion; and (2) in 1994, his supervisor told him that he was nothing
but a �n-g--r.� For the following reasons, we VACATE and REMAND the
agency's final order.
The record reveals that complainant, a Lock and Dam Operator at the
agency's Lindy C. Boggs Lock and Dam, Monroe, Louisiana facility, filed
a formal EEO complaint with the agency on September 29, 1997, alleging
that the agency had discriminated against him as referenced above.
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.
In her decision, the AJ found the following relevant facts: on May
13, 1997, complainant and his supervisor had a conversation about
complainant's tardiness. Furthermore, complainant had been tardy in
the past. On May 13, 1997, complainant was assigned to power wash
the lock wall, the hand railing on the upstream miter gates, and the
upstream control house stairway. On that day, he worked for six hours,
and then took two hours of sick leave.
Complainant contended that his supervisor worked him to the point of
exhaustion on the day in question, and as a result, he suffered a heart
attack. Complainant testified during a fact finding conference that he
was harassed this way because of his race. Complainant alleged that in
1994, his supervisor referred to him as nothing but a �ni�ger.�
In response to complainant's contentions, the AJ found that complainant
failed to demonstrate that he was subjected to harassment. In that
regard, the AJ found that although record evidence established complainant
received more power washing assignments than his co-workers, there was
insufficient evidence that complainant was subjected to a hostile or
abusive environment. Indeed, complainant himself testified that he
was given the power wash tasks as a result of his tardiness. Instead,
the AJ found complainant was assigned the assignments in light of a
impending inspection.
In regards to the racial slur allegedly made by complainant's supervisor
in 1994, the AJ found complainant failed to make timely contact with
an EEO Counselor. The AJ found that had the supervisor spoken the
slur, complainant would have a had a reasonable suspicion that he was
discriminated against, and should have made contact with an EEO Counselor.
Finding that complainant waited a year before contacting an EEO Counselor,
the AJ dismissed the claim.
On August 28, 2000, the agency issued a final order that implemented
the AJ's decision.
On appeal, complainant contends that the AJ erred when she determined
there were no material facts in dispute. Complainant also claims he
did not have sufficient representation during the investigation.
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 she
concluded that there was no genuine issue of material fact in this case.
In finding no discrimination, the AJ relied on the supervisor's testimony
wherein he denied making a racial slur, and testified that complainant
misunderstood him when he referred to complainant and another group of
workers as �a bunch of diggers� since they were about to install a cable.
Furthermore, the AJ dismissed complainant's second claim since he failed
to timely contact an EEO Counselor after he heard the slur.
A close examination of the record indicates that the complainant offered
sufficient evidence to raise an inference of race discrimination. In that
regard, we note that even if complainant's second claim was untimely,
the AJ should have considered it as background evidence in support of his
claim that he was given undesirable work assignments because of his race.
In determining whether in fact the supervisor made the racial slur,
the AJ relied on the denials of complainant's supervisor and co-workers.
Whether the supervisor made the racial slur as complainant alleged is a
question of fact that can only be resolved after examining the demeanor
of witnesses at a hearing.
Complainant's testimony regarding disparate working conditions disputes
the testimony of complainant's supervisor and co-workers. The agency's
reasons for assigning complainant the amount of work on the day in
question should also have been the subject of credibility findings.
For this reason we find the AJ erroneously made a credibility finding
in the agency's favor.
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, there are simply too many
unresolved issues which require an assessment as to the credibility of
the various management officials, co-workers, and complainant, himself.
Therefore, judgment as a matter of law for the agency should not have
been granted.
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 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 New Orleans 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
4/24/01
Date