0120111950
08-21-2013
Breen Peck, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Breen Peck,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120111950
Hearing No. 570-2008-00939X
Agency No. 2008-21886-FAA-01
DECISION
On February 23, 2011, Complainant filed an appeal from the Agency's January 25, 2011 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist (ATCS) at the Agency's Potomac Consolidated TRACON in Warrenton, Virginia.
The Agency requires aircraft to maintain separation standards. An operational error (OE) is a loss of standard separation between two aircraft. OEs are categorized as "A," "B," or "C" based on the amount of separation that was lost, with category "A" being the most severe and category "C" being the least severe. Although the Agency may decertify an ATCS who is involved in an OE, decertification "shall not be based solely on involvement in the OE but rather the employee's overall performance history." Report of Investigation (ROI), Ex. F8, at 107. The Air Traffic Manager (ATM), after conferring with the Support Manager, Quality Assurance (SMQA) and the Operations Manager (OM), decides whether or not to decertify an employee. ATM Depo. Tr., at 11-12; ROI, Ex. F3, at 5.
On April 12, 2007, Complainant and the Agency entered into an EEO settlement agreement. ATM and OM were aware of Complainant's protected activity because they participated in alternative dispute resolution. SMQA was not aware of Complainant's protected activity.
On September 8, 2007, Complainant and an ATCS (CW1) were involved in a category "B" OE. After an investigation, SMQA determined that Complainant was primarily responsible for the OE. ATM decertified Complainant after receiving recommendations from SMQA and OM. Complainant was subsequently recertified.
On December 28, 2007, Complainant and an ATCS (CW2) were involved in a category "C" OE. After an investigation, SMQA determined that Complainant was primarily responsible for the OE. ATM decertified Complainant after receiving recommendations from SMQA and OM.
On February 26, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity (April 12, 2007 EEO settlement agreement) when, on December 28, 2007, it charged him with an OE and subsequently decertified him.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 14, 2010 motion for a decision without a hearing and issued a decision without a hearing on January 5, 2011, finding no discrimination.
In his decision, the AJ found that the Agency articulated the following legitimate, nondiscriminatory reasons for decertifying Complainant: (1) SMQA determined that Complainant was primarily responsible for the OE and recommended decertification; (2) ATM concurred with SMQA's recommendation and decertified Complainant; (3) ATM decertified Complainant because he had a previous OE only a few months before, both OEs involved the same type of mistake pattern, and both OEs occurred when Complainant was monitoring a small number of aircraft.
Moreover, the AJ found that Complainant failed to show that the Agency's reasons were a pretext for reprisal discrimination. The AJ addressed two arguments raised by Complainant in his opposition to the Agency's motion for a decision without a hearing. Regarding Complainant's argument that other management officials disagreed with SMQA's determination that he was primarily responsible for the OE, the AJ stated that such differences of opinion did not inevitably lead to a conclusion that the Agency's actions were retaliatory. Regarding Complainant's argument that ATM should not have decertified him even if he was primarily responsible for the OE, the AJ noted that he (the AJ) was clearly not qualified to determine the appropriateness of the Agency's chosen actions, particularly in light of the Agency's critical public safety responsibilities involving air traffic control.
The Agency subsequently issued a final order implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argued, among other things, that ATM did not decertify some employees who committed OEs in the same or a more severe category. In addition, Complainant argued that ATM did not decertify some employees who committed multiple OEs. Finally, Complainant argued that although OM, who recommended his decertification, testified that he had training issues, the record contained no other evidence that he had difficulties with training.
In opposition to the appeal, the Agency argued that Complainant failed to establish a prima facie case of discrimination because SMQA, who recommended his decertification, was unaware of his protected activity. In addition, the Agency argued that Complainant failed to establish pretext because it was undisputed that he was involved in two OEs in less than four months, that he made the same type of mistake in both OEs, and that he was working only a few aircraft at the time of each OE. Finally, the Agency argued that Complainant failed to establish pretext because it decertified other employees in similar situations when their overall performance justified decertification.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, VI.B (Nov. 9, 1999) (providing that an AJ'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, and Agency'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 EEO MD-110, Ch. 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").
Prima Facie Case of Reprisal Discrimination
As an initial matter, we address the Agency's argument that Complainant failed to establish a prima facie case of discrimination because SMQA, who recommended his decertification, was unaware of his protected activity. To establish a prima facie case of discrimination on the basis of reprisal, a complainant generally must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Here, the record reflects the following: (1) Complainant and the Agency entered into an EEO settlement agreement in April 2007; (2) ATM became aware of the EEO settlement agreement in April 2007; (3) ATM decertified Complainant in December 2007; and (4) the decertification occurred a few months after the EEO settlement agreement. While SMQA (and OM) were involved in the decertification decision, the record reflects that ATM was the ultimate decision-maker and the only one with the authority to decertify an employee. ATM Depo. Tr., at 11-12, 27, 32-33; ROI, Ex. F3, at 5. Accordingly, we find that Complainant has established a prima facie case of discrimination on the basis of reprisal.
AJ's Issuance of a Decision Without a Hearing
We must next 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. Dep't of Def., 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
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. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). 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, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, Ch. 7, I; 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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995).
After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact regarding pretext. Typically, pretext is proved through evidence that the agency treated the complainant differently from similarly situated employees or that the agency's explanation for the adverse action is not believable. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.E.2 (May 20, 1998). Here, there is a genuine issue as to whether ATM decertified similarly situated employees and whether Complainant had training issues which factored into his decertification.
Regarding decertification, ATM testified that she considers (among other things) the severity of the OE and the frequency of the OEs in deciding whether to decertify an employee.
ATM Depo. Tr., at 26. The record reflects that ATM did not decertify 16 employees who committed a category "B" OE, but decertified Complainant who committed a less severe category "C" OE. Complainant's Appeal Brief, at Ex. A and B. In addition, the record reflects that ATM did not decertify four employees who each committed two OEs, but decertified Complainant who committed two OEs. Id. Further, the record reflects that, of those four employees, one committed two OEs of the same severity as Complainant (a category "B" and a category "C") and another committed two OEs of greater severity than Complainant (two in category "B"). Id. For each employee that ATM did not decertify, the Agency noted, without additional explanation, "This employee's overall performance history did not warrant a decertification." Id. As the record contains little information about the overall performance histories of all the employees that ATM did not decertify, we are unable to determine if they are similarly situated to Complainant.
Regarding training, OM testified that one reason he thought Complainant should be decertified was because of Complainant's history of performance issues, which included training issues. OM Depo. Tr., at 15-16. Specifically, OM testified that he discussed the training issues with Complainant's First Level Supervisor (S1) and that Complainant's training instructors were unhappy with the way he was progressing. Id. at 18-19. In contrast, S1 testified that Complainant did not have any difficulties in training and that, other than the two OEs in 2007, he did not know of any performance issues. S1 Depo. Tr., at 6-7. Similarly, a Front Line Manager (FLM) testified that he trained Complainant and he did not recall Complainant ever having any difficulties with training. FLM Depo. Tr., at 11. Finally, PCT Technical Training Discussions dated May 1, 2006 and November 11, 2006 indicate that Complainant had no technical performance issues and was making good progress. Complainant's Appeal, at Ex. C.
In summary, there are genuine issues of material fact regarding the Agency's decision to decertify Complainant. Therefore, the AJ should not have granted judgment as a matter of law for the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order and REMANDS the complaint to the Agency in accordance with this decision and the Order below
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of of the Washington Field Office 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 hold a hearing and 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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
__8/21/13________________
Date
2
0120111950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111950