01A33571
02-19-2004
David M. Silverman v. Department of Homeland Security
01A33571
February 19, 2004
.
David M. Silverman,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A33571
Hearing No. 230-A1-4099X
Agency No. 03-0089
DECISION
Complainant filed an appeal with this Commission from an undated
agency final order, dismissing his complaint of unlawful employment
discrimination, brought pursuant to the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission
accepts the appeal. See 29 C.F.R. � 1614.405.
According to the record, complainant initiated EEO counseling on February
15, 2000, claiming age discrimination, contending that the agency changed
his schedule, requiring him to periodically work a midnight shift,
for the purpose of forcing him to retire because of his advanced age
(72 years old). When EEO counseling failed to resolve this matter,
complainant filed a formal complaint on March 28, 2000.
The agency accepted the complaint, conducting an investigation from
May 2000 to July 2000. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On September 23, 2000, while the complaint was pending a hearing,
complainant retired from the agency.
On March 30, 2001, the agency entered a Motion to Dismiss the complaint,
arguing that complainant's schedule change claim was now moot because of
his retirement. In response, complainant asserted that his complaint was
not moot because the schedule change forced him to retire much earlier
than he had planned, thereby alleging constructive discharge.
In her decision, the AJ found that the issue of mootness could not be
determined without first addressing complainant's constructive discharge
claim. The AJ acknowledged that the addition of a constructive discharge
claim made the instant matter a mixed case complaint, and that the
Merit System Protection Board (MSPB), not the Commission, would normally
have jurisdiction. However, because the complaint had been in the EEO
process for several years, the AJ decided that justice would best be
served by the Commission taking jurisdiction and adjudicating the claim.
The AJ concluded that complainant failed to demonstrate that he was
compelled to resign because of the schedule change. In reaching
this conclusion, the AJ considered complainant's arguments that the
schedule change violated a prior verbal agreement he made to reduce his
schedule to just two days per week to avoid having to work a midnight
rotation, and that working midnights disturbed his sleep and caused
him to experience flashbacks to a 1991 automobile accident. The AJ
also acknowledged the dispute which arose between complainant and the
agency upon his return to duty in May 2000, after a leave of absence,
concerning firearm qualification and use of the correct gun-belt. However,
the AJ found the medical documentation submitted by complainant merely
showed that it was preferable that complainant not work midnights,
and concluded that he otherwise failed to show how working a rotating
midnight shift, under the same conditions as his co-workers, could be
viewed as an intolerable working condition. In this regard, the AJ
also found that none of complainant's co-workers liked to work the
midnight shift, and that firearm qualification was required by all,
further belying complainant's claim that these requirements created
intolerable working conditions. Based on these findings, the AJ found
that complainant's retirement was voluntary.
Next, the AJ concluded that complainant's claim regarding the schedule
change should be dismissed as moot. Specifically, the AJ found
that complainant did not request compensatory damages, and that the
only relief for his claim would be assignment of a schedule with no
midnight rotation, noting that this remedy was not available because of
complainant's retirement. The AJ also found that this �harm� could not
be repeated since complainant was no longer employed by the agency.
Notwithstanding the above determination, even assuming that complainant
set forth an actionable claim, the AJ also found that complainant failed
to establish a prima facie case of age discrimination regarding his
schedule change claim. Specifically, the AJ found while complainant
argued that the agency exempted co-workers who also had full time jobs as
teachers from the midnight shift rotation, complainant was not similarly
situated to these workers because he was not a teacher, and had no other
full time job. The AJ also found that disparate treatment based on
being a teacher or holding a full time job is not protected by the ADEA.
Based on her finding that complainant retired voluntarily, and that his
retirement rendered his change of schedule claim moot, the AJ dismissed
the captioned complaint pursuant to 29 C.F.R. � 1614.107(a)(5) and 29
C.F.R. � 1614.109(b). The agency adopted the AJ's determination in its
final order, and the instant appeal followed.
Analysis and Findings
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can
be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1).
Here, we find that the schedule change claim and the constructive
discharge claim are intertwined, and that both matters would normally
be referred to the MSPB. However, as noted by the AJ, when a complaint
becomes firmly enmeshed in the EEO forum, the Commission will assume
jurisdiction if doing so better serves the interests of judicial economy.
See Burton v. Department of Agriculture, EEOC Appeal No. 01932449
(October 28, 1994). We find that such is the case here, given that
complainant filed his formal complaint nearly four years ago, in March
2000, and the record is fully developed. Therefore, we concur in the
AJ's decision to assume jurisdiction of the captioned complaint.
Constructive Discharge Claim
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); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Here, we find that the record contains sufficient evidence to address
complainant's constructive discharge claim, and that the material
facts are not in dispute by the parties. Therefore, we find that the
AJ properly issued a summary judgment determination on complainant's
constructive discharge claim. We now conduct a de novo review of the
AJ's determination.
The central question in a constructive discharge case is whether
the employer, through its unlawful discriminatory behavior, made the
employee's working conditions so difficult that any reasonable person in
the employee's position would feel compelled to resign. Carmon-Coleman
v. Department of Defense, EEOC Appeal No. 07A00003 (April 17, 2002).
The Commission has established three elements which a complainant must
prove to substantiate a claim of constructive discharge: (1) a reasonable
person in the complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against the complainant created the intolerable working conditions;
and (3) the complainant's involuntary resignation resulted from the
intolerable working conditions. See Walch v. Department of Justice,
EEOC Request No. 05940688 (April 13, 1995).
According to the record, complainant worked as a part-time �Other Than
Permanent� (OTP) Immigration Inspector at the Detroit/Windsor Tunnel and
Ambassador Bridge. In January 2000, all OTP's who were not employed as
full-time school teachers where required to work a rotational midnight
shift. In the summer, the school teacher OTP's were required to work
a rotational midnight shift as well. Although complainant argues that
this schedule change was implemented to force him to resign, because of
his age, we find that he presents insufficient evidence to show that the
schedule change made his working conditions so intolerable that he was
compelled to resign. In particular, complainant presents a April 13,
2000 medical statement reflecting that complainant reported that he
experiences sleep disturbances and flashbacks to an accident in 1991,
and his physician opines that he should not work the midnight shift to
prevent any �further physical or psychological complications.� We find
that this evidence fails to show that a rotation midnight shift, although
not desirable, would make complainant's working conditions intolerable.
We have also considered complainant's claim that the agency's requirement
that he qualify to use a firearm, and use a certain type of gun-belt,
also compelled him to resign, but we find that these requirements, which
the record shows to be legitimate and business related, do not make his
working conditions intolerable. We also note that the agency disavows
any knowledge of a prior verbal agreement made by complainant exempting
him from midnight shifts in consideration for him reducing his schedule
from three days to two days, and we find that even if such an agreement
exists, the agency's failure to uphold it would not create intolerable
working conditions.
Accordingly, we find that the matters raised by complainant, viewed
cumulatively, did not create intolerable working conditions, and we
concur with the AJ that complainant failed to prevail in this claim.
Therefore, we AFFIRM the agency's final order regarding this matter.
Dismissal of Complaint as Moot
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
Here, based on our determination that complainant retired voluntarily,
and finding that he did not request compensatory damages, we concur with
the AJ that complainant's retirement renders the instant complaint moot.
Specifically, we find that complainant's retirement eradicated the
alleged discriminatory effects of the schedule change, and precludes
the possibility that this action could be repeated.
Accordingly, we AFFIRM the agency's final order dismissing the instant
complaint.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
February 19, 2004
__________________
Date
1In light of our dismissal, we do not address
the AJ's alternative determination that complainant failed to establish
a prima facie case of age discrimination with respect to his schedule
change claim.