EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
CITY CRESCENT BUILDING
10 SOUTH HOWARD STREET, 3RD FLOOR
BALTIMORE, MD 21201

_____________________________                               

PATRICIA M. THOMAS,

                                                             EEOC Case No.
                        COMPLAINANT                  143-A1-3454X

            v.

LARRY G. MASSANARI

COMMISSIONER                                        Agency Case No.
SOCIAL SECURITY                                     SSA-01-2342
ADMINISTRATION AGENCY

____________________________

COMPLAINANT’S MOTION FOR AMENDMENT OF CLAIM, REVERSAL OF FEBRUARY 6, 2002 DECISION OR REMAND

Complainant, by and through her attorneys Snider & Fischer, LLC., hereby requests that this claim be amended to include charges of religious discrimination; complainant moves for reversal of the February 6, 2002 decision granting Summary Judgment and full relief or in the alternative, complainant moves that this case be remanded to the Administrative Judge for further proceedings. 

                                                                                                Respectfully Submitted,

                                                                                                ____________________

                                                                                                Morris E. Fischer, Esq.
                                                                                                Snider & Fischer, LLC
                                                                                                Attorney for Complainant
                                                                                                PATRICIA THOMAS
                                                                                                100 Church Lane
                                                                                                Baltimore, MD 21208


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
CITY CRESCENT BUILDING
10 SOUTH HOWARD STREET, 3RD FLOOR
BALTIMORE, MD 21201

_____________________________                                

PATRICIA M. THOMAS,

                                                             EEOC Case No.
                        COMPLAINANT                  120-A1-4524X

            v.

LARRY G. MASSANARI

COMMISSIONER                                        Agency Case No
SOCIAL SECURITY                                     SSA-01-0074
ADMINISTRATION AGENCY

____________________________

MEMORANDUM IN SUPPORT
Factual History

On May 7, 2000, complainant, Ms. Patricia Thomas, filed her complaint alleging discrimination based on age, race and sex.   Ms. Thomas, a grade 12, was not selected for any of the GS-105-13 Social Insurance Specialist positions, #3B226, #4B932 and #3F233, posted under Vacancy Announcement number U-143 on September 13, 1999. 

According to Ms. Thomas’ affidavit annexed hereto as exhibit “1”, an agency investigation was assigned to union representative, Mr. Vincent Tarimba, who at least, began the investigation.  The investigation was then conducted by Carlos M. Sanchez, a contract EEO investigator.  During the investigation, Ms. Thomas completed several affidavits, including a rebuttal affidavit dated November 8, 2000, in which she described her supervisor, Ronda Clark’s, horrible behavior towards her.   On page 8 of this affidavit, Ms. Thomas attested that she believed that Ms. Clark’s behavior towards her was because of her association with Mr. Stanley Abraham, a Jew, who Ms. Clark could not stand and ignored.  (See Ms. Thomas’ rebuttal affidavit dated 2/8/01, annexed hereto as exhibit “2”).

At some point, Ms. Thomas was advised that her complaint was set down for a hearing for February 9, 2002, and that she would be represented by Mr. George Silver, a non-attorney, who was also responsible for addressing all pre-hearing notices and requests.    

On November 16, 2000, pre-hearing notices were sent to the parties and the parties were directed to submit pre-hearing statements as well as witness lists.  While the agency complied with the court’s directives, the complainant’s representative did not (see transcript of proceeding annexed hereto as exhibit “3”).  In addition, the agency raised a motion for summary judgment, which the complainant’s representative failed to respond (see exhibit “3”).   Based upon the representative’s failure to respond to the court directives and the Summary Judgment motion, Judge Mary Elizabeth Palmer ruled in favor of the agency, stating that the agency’s facts as alleged in the motion had not been controverted (see p. 9 of exhibit “3”).  

According to Ms. Thomas, she was never contacted by the union regarding the preparation for this hearing.  Additionally, Mr. Silver advised her that he was unsure as to receiving the pre-hearing notice, since he had inherited the file from Mr. Tumminelo.  He also advised her that he did investigate as to the need for any witnesses, since the hearing would be all “on the merits.”  Ms. Thomas, a non-lawyer as well, assumed that Mr. Silver had read the investigative report, was fully familiar with all the matters’ issues and ready for the hearing.  Furthermore, she was completely unaware of the agency’s Summary Judgment motion or its consequences (See exhibit “1” annexed hereto).

Another wrinkle to the case involved Ms. Thomas ignorance that she could have amended her EEO complaint to include religious discrimination, since Ms. Thomas is Catholic, but had a close relationship with Mr. Stanley Abraham and was friendly with other Jews in the department supervised by Ms. Clarke  (See exhibit “2” annexed hereto).  Ms. Thomas attested that her association with Mr. Stanley Abraham, a Jew, angered Ms. Clarke, an ex-nun who treated Jewish people in an unequal manner (See exhibit “1” annexed hereto) (See the affidavits of Mr. Stanley Abraham and Ms. Kira Lebowitz which buttress Ms. Thomas’ contentions annexed hereto as exhibit “4”).

Ms. Thomas timely filed her Notice to Appeal.  First and foremost, she moves for amendment on her discrimination claim to include charges of religious discrimination.  Second, she moves for reversal and full relief or at the very least, in the alternative, Ms. Thomas requests that this case be remanded to the Administrative Judge for further proceedings. 

Ms. Thomas’ EEO Claim Should
Be Amended To Include Religious Discrimination

It is well established that the elements of a religious discrimination claim under the "disparate treatment" theory, mirror those of discrimination based upon race or sex and the evidentiary Bowland-shifting framework is synonymous. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996).  The plaintiff must demonstrate that she (1) is a member of a protected class, (2) was qualified and rejected for the position she sought, and (3) nonmembers of the protected class were treated more favorably.  Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-319 (3d Cir. 2000) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992)). After the plaintiff establishes a prima facie case, the employer must set forth a legitimate, non-discriminatory reason for the adverse employment decision. If the employer is able to meet this standard, the plaintiff must demonstrate that the employer’s proffered reason was pretextual.  Goosby, 228 F.3d at 319; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000). 

Furthermore, the term “member of a protected group” includes individuals who associated favorably with the discriminated group. See Fiedler v. Marumsco Christian School, 631 F.2d 1144 (4th Cir. 1980).  In Fiedler, the Court held that awhite female student expelled for dating a black male was protected.  Similarly, in DeMatteis v. Eastman Kodak Company, 511 F.2d 306 (2d Cir. 1975), a white male could maintain his racial discrimination action when he was forced into early retirement because the white male sold his home to an African American. 

“Title VII is to be broadly construed, and a party need not specifically allege that he was discriminated against because of his race, but only show that adverse actions taken against him involved racial considerations.” Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986).   

According to Mr. Abraham’s affidavit (annexed hereto as exhibit “4”), Ms. Clark was antagonistic to him and to other members of the Jewish faith.  Mr. Abraham cited several key incidents reflecting this anti-Semitism, including Ms. Clark’s placement of Mr. Axel on a “track not to succeed” and that he was “doomed to fail” because of her.  Mr. Abraham further attested that Ms. Clark was aware of the close association he had with Ms. Thomas.  Mr. Axel further attested that he had noticed that all of Ms. Clark’s friends and confidents at the administration were not of the Jewish faith and that he noticed unequal treatment of Jewish people as well as Ms. Thomas. 

Another Jewish person, Ms. Kira Lebowitz, attested that she was wrongly accused by Ms. Clark for wasting time on the telephone, when Ms. Lebowitz was merely carrying out her professional duties.  She also noticed unequal treatment by Ms. Clark regarding communication involving work related issues.  Additionally, Ms. Lebowitz’s only downgrade in her then near twenty years of service was given to her by Ms. Clark and that downgrade was eventually reversed by Ms. Clark’s supervisor.   Ms. Lebowitz further attests that the relationship between Ms. Thomas and Mr. Abraham was well known (see exhibit “4”).

Furthermore, while Ms. Thomas did not originally bring a discrimination claim based on religious discrimination, the common law has well established that as long as “some sort is filed with the EEOC” the scope of the original charge includes claims that can be related to the original charge.Hicks v. ABT Associates, INC., 572 F.2d 960 (3d. Cir. 1978). In addition, “Just as failure of to mark the right box on the EEO complaint alone will not preclude subsequent judicial consideration of a claim, failure of the EEO investigator to investigate a claim not explicitly raised will also not preclude judicial consideration of the claim.”  Clark v. Kraft Foods, Inc., 18 F.3d 1278 (5th Cir. 1994).

In Hicks, a white male who had originally filed a discrimination complaint based solely on race was permitted to amend his charge following the deadline, since he had testified at his deposition that he believed that he had raised the issue of sexual discrimination.  The Court held that a genuine issue existed as to whether a reasonable investigation by the EEOC would have included examining the plaintiff’s contentions of sexual discrimination claims.   The plaintiff in Hicks contended, among other things, that he was not kept informed of the status of the investigation and didn’t even know that that the investigation was proceding until the final determination.  The Hicks Court ruled that the investigatory record raised an issue as to whether the investigation was satisfactory, thereby leading to an inquiry of the plaintiff’s contentions for sexual discrimination.  

The case at bar is nearly identical to Hicks, since here Ms. Thomas squarely stated in her affidavit dated February 8, 2001,

“I have mentioned to Mr. Bowland that I believe that Ms. Clark does not like me, I do not know why or what I did or have done to her to anyone in OPB that would make her act/react as she has over most of the years I have been on her team…[I] cannot understand her behavior and actions toward me.  I stated that I believe that she acts this way toward me because of my association with Mr. Stanley Abraham, a Jew, who she could not stand and ignored.  Mr. Abraham and I sat diagonally in the team during all my years on Team “A”. 

Consequently, Ms. Thomas raised the issue of religious discrimination during the course of her investigation and it was never examined.  Mr. Abraham was never contacted by the EEO regarding this matter.  No inquiry of any kind was made to anyone regarding Ms. Clark’s attitudes towards Jewish persons.  As in Hicks, Ms. Thomas firmly believed that she had at least raised the issue of religious discrimination during the course of the investigation and had no knowledge that as a Catholic, no one from the EEO, including Mr. Silver, advised her as to her rights to raise religious discrimination against Jews, due to her association with Mr. Abraham. Consequently, Ms. Thomas’ EEO complaint should be amended to include a charge for religious discrimination.

Complainant Was Represented by a Non-Attorney, and Deserves Additional Flexibility

The EEOC has traditionally been more lenient than federal courts in applying summary judgment rulings, particularly when a complainant is represented by a non-attorney.  See Roland v. Veterans Administration, 01882726, 2111/D2 (1988); Bhuller v. Postmaster General, 05910523, 3049/A2 (1991); Guide to Federal Sector EEO Law and Practice, Hadley, Ernest C., p. 505-6 (1999). 

In addition, the Federal courts themselves have recognized a more lenient standard for additional charges not found on the original EEO complaint when the charge was drafted by a complainant un-represented by counsel. DeVoe v. Medi-Dyn, Inc., 782 F. Supp. 546, 554 (D. Kan. 1992); Moore v. Norfolk and Western Ry. Co., 731 F. Supp. 1015, 1018 (D. Kan. 1990).

Unquestionably, Ms. Thomas’ lack of legal representation, from the onset of her claim, damaged her.  Aside of failing to advise Ms. Thomas as to her right to bring a religious discrimination claim, as well as a failed investigation, as Ms. Thomas’ rebuttal affidavit was clearly ignored, other incidents of ill prepared representation allowed for the court’s February 6, 2001 ruling.  Mr. George Silver failed to respond to the pre-hearing notice, failed to provide a witness list, and in fact, advised Ms. Thomas she didn’t need any witnesses, and never responded to the agency’s summary judgment motion.  As such, Ms. Thomas should be granted leniency, as she has not had her day in court. 

Standard of Law for Summary Judgment

The United States Supreme Court has stated that Summary Judgment is appropriate where the trier of fact determines that, given applicable substantive law; no genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the context of an administrative proceeding under Title VII, Summary Judgment is appropriate if, after adequate investigation, one of the parties has failed to establish the essential elements of his/her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In response to a motion for Summary

Judgment, the trier of fact's function is not to weigh the evidence and render a determination as to the truth of the matter, but only to determine whether there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2 766, 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).

The Commission's Regulations in this regard are patterned after the Summary Judgment procedure set forth at Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides for the granting of Summary Judgment if the trial judge determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Beard v. Whitley County REMC, 840 F.2d 405, 409-410 (7th Cir. 1988).

The United States Supreme Court has stated that Summary Judgment is appropriate where the adjudicator determines that no genuine issue of material fact exists, as governed by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is genuine if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).

In order to avoid Summary Judgment, the non-moving party must produce admissible factual evidence sufficient to demonstrate the existence of a genuine issue of material fact requiring resolution by the fact-finder. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson, 477 U.S. at 247-50.  The party opposing a properly made motion for Summary Judgment may not simply rest upon the allegations contained in his or her pleading, but must set forth specific facts showing that there is a genuine issue still in dispute. Anderson, 477 U.S. at 248. In response to a motion for Summary Judgment, the fact-finder's function is not to weigh the evidence and render a determination as to the truth of the matter, but only to determine whether there exists a genuine factual dispute. Id. at 248-49.

Initially, it is the Bowland of the complainant to establish that there is some substance to his/her allegation of discrimination. In order to sustain this Bowland, the complainant must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Furnco Construction Co. v. Waters, 438 U.S. 567 (1978). This means that the complainant must present a body of evidence such that, were it not rebutted, the trier of fact could conclude that unlawful discrimination did occur.

       In the present case Complainant can establish a prima facie case of age discrimination by showing:

      (1) She was a member of a protected class or classes (by association);

      (2) She was qualified for the position for which she applied;

      (3) She was not recommended or hired despite her qualifications; and

      (4) The job was given to a person outside of his protected group(s), as none of the three individuals who were selected for promotion were Jewish.

The affidavits of Mr. Stanley Abraham as well as Ms. Kira Lebowitz establish that an issue of fact exists regarding Ms. Clark’s attitudes towards Jewish people.  Furthermore, there is conflicting testimony between Ms. Clark and Mr. Kenneth Bowland regarding Ms. Thomas’ standing regarding her ability to be promoted.  According to Ms. Clark’s February 1, 2001 affidavit (annexed hereto as exhibit “5”), she attested,” [s]he (Ms. Thomas) has not demonstrated that she possesses the analytical judgment skills necessary for a GS-13 level position.  This is exactly what Mr. Bowland and I discussed with her in our meeting of February 2000.  Mr. Bowland and I spent a lot of time preparing for that meeting…”

However, the February 1, 2001 affidavit of Mr. Kenneth Bowland (annexed hereto as exhibit “6”) states that regarding his promotion recommendations, “the top candidates recommended on my list were different than the ones in Ms. Clark’s list.  Ms. Thomas was the third candidate on my list.” Hence, since the promotion announcement was listed in September of 1999, and at least some of the recommendations were made in January of 2000, given Mr. Bowland’s  recommendation of Ms. Thomas, he clearly had a different understanding of that meeting than did Ms. Clark. 

Mr. Bowland’s affidavit is further revealing as to his input into the selection process as compared to Ms. Clark’s.  According to Mr. Bowland, “after we (Ms. Clark and Mr. Bowland) provided our input (our own separate lists), it was to Mr. Crawford to made final recommendation of candidates to the selecting official.  Mr. Crawford, on the other hand, because of his situation, will support his program side and follows Ms. Clark’s advice rather than mine.” (See exhibit “6”).  Accordingly, Mr. Crawford took Ms. Clark’s recommendation not to promote Ms. Thomas.

In addition to Ms. Thomas’ February 8, 2001 affidavit in which she lists her strong qualifications for the positions in comparison to the other candidates, Mr. Bowland’s affidavit is prima facie evidence that Ms. Thomas was the victim of discrimination.  According to Mr. Bowland, “And my third choice was Ms. Thomas because I thought, according to the interview, she was the best candidate for the job.” This statement was made under oath by one of the two members of the interview panel who independently provided the input to Mr. Crawford.  His affidavit alone attests to Ms. Thomas’ qualifications and suitability for the position.  As such, Ms. Thomas has demonstrated that she was passed over by Ms. Clark, due to discrimination and has thereby satisfied the other three elements of a religious discrimination claim.  Namely,  (2) she was qualified for the position for which she applied; (3) she was not recommended or hired despite her qualifications; and (4) the job was given to a person outside of his protected group(s), as none of the three individuals who were selected for promotion were Jewish.

Once the complainant meets his Bowland of presenting a prima facie case, then the agency has a Bowland of production to articulate some legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).  If the Agency does so, the complainant then has the Bowland to demonstrate that the agency's employment decisions were motivated by discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).  In this case, the Complainant has presented evidence, which tends to demonstrate that her qualifications were superior to those of at least one of the selectees, otherwise, her name would not have been on Mr. Bowland’s list.  See Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981); Guyton v. Department of Veterans Affairs, EEOC Appeal No. 01931099 (December 7, 1993).  For the reasons stated above, the agency’s reasons for denying promotion to Ms. Thomas, spearheaded by Rosemary Clark were a mere pretext.

Furthermore, an issue of fact is created by virtue of the Ms. Thomas’ comparison of her work ethic with one of the selectees, Mr. Frank Gorman (see exhibit 2).  Questions as to his suitability and whether he truly deserved the promotion were never raised or heard. 

The Consequently, the court’s ruling against Ms. Thomas should be reversed, she should be awarded back pay and damages or at the very least the case should be remanded for a further hearing. 

The Hearing is Part of the Investigation

As in the case of Cleveland J. White v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC 01942178 (September 12, 1994), where the EEOC found that:

“In short, appellant has raised a serious challenge to the credibility of the agency's articulated reasons for its actions. For the above-stated reasons, we find that contrary to the Administrative Judge's determination; genuine issues of material fact remain in contention in this case. The Administrative Judge therefore erred in recommending a finding of no discrimination without affording appellant the opportunity of a hearing and the chance to cross-examine the board members to determine if they were motivated by discrimination in their actions, and to supplement the record. Likewise, the agency erred in adopting the findings and conclusions in its final decision. See Caravetta v. GSA, EEOC Appeal No. 01930845 (October 15, 1993).”

The Administrative Judge in this case performed a disservice by recommending a finding of no discrimination without affording appellant the opportunity of a hearing and the chance to cross-examine the board members to determine if they were motivated by discrimination in their actions, and to supplement the record.

“Finally, as the EEOC so eloquently stated in Lynette M. Nighswander v. Henderson, Postmaster General, United States Postal Service, EEOC 01986025 (April 30, 1999):

“EEOC regulations plainly indicate that the hearing is intended as a continuation of the investigatory process. Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives all parties of a full and fair investigation into appellant's claims. Therefore, we find that the AJ erred when he issued a recommended decision without a hearing, and the final agency decision which rejected the AJ'S decision on this basis must be affirmed.”

The Complainant in this case asked for, and deserved, her day in court - so to speak.  More importantly, the hearing is an extension of the investigatory process, and to short-cut that process is a crime in and of itself.

                       

Respectfully Submitted:

___________________ 

Morris E. Fischer, Esq.
Snider & Fischer, LLC
Attorneys for
Patricia Thomas