0120081038
09-30-2009
Earl C. Cates, Jr, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Earl C. Cates, Jr,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120081038
Hearing No. 540-2007-00151X
Agency No. DEN-06-2101-SSA
DECISION
On December 29, 2007, complainant filed an appeal from the agency's
December 4, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging 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 Commission accepts the appeal, pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Administrative Law Judge (ALJ) at the agency's Hearing Office in
Florence, Alabama. Complainant had previously worked at the agency's
facility in Salt Lake City, Utah as a staff attorney from 1991 to 2004,
during which time he engaged in EEO activity.
In a letter dated August 15, 2005, the Hearing Office Chief Administrative
Law Judge (HOCALJ) for the agency's Hearing Office in Salt Lake City,
Utah informed the agency that he would be stepping down as the HOCALJ
when a successor was chosen for the position. On August 25, 2005, the
agency issued a vacancy announcement (154-303-9605) for the position of
HOCALJ at the Hearing Office in Salt Lake City, Utah.
The selecting official for HOCALJ vacancies, at that time, was
the Associate Commissioner of the Office of Hearings and Appeals.
According to the Associate Commissioner, the recommending officials
for HOCALJ vacancies were the Regional Chief Administrative Law Judge
(Regional Chief ALJ) and the Chief Administrative Law Judge (Chief ALJ).
The Regional Chief ALJ had the authority to cancel vacancy announcements.
However, for this particular HOCALJ vacancy, the Regional Chief ALJ for
Region VIII recused himself from acting as a recommending official,
and designated the Assistant Regional Chief ALJ for Region VIII as a
recommending official.
Complainant, along with eight other candidates, applied for the position
and participated in telephone interviews with the Assistant Regional
Chief ALJ for Region VIII and the HOCALJ for the Hearing Office in Fargo,
North Dakota.
After conducting the interviews and examining the applications, the
Assistant Regional Chief ALJ for Region VIII issued an October 11,
2005 memorandum to the Regional Management Officer for Region VIII.
According to the memorandum, the Assistant Regional Chief ALJ for
Region VIII evaluated the applicants on five factors in descending
order of importance: (1) management experience; (2) the ability to
work with others; (3) management philosophy and whether the applicant's
philosophy was consistent with the region; (4) agency experience greater
than two years; and (5) understanding of basic labor management, such
as discipline, grievance, and EEOC. The Assistant Regional Chief ALJ
for Region VIII recommended for selection an applicant in Kentucky who
had previously served as the HOCALJ for the Hearing Office in Salt Lake
City, Utah. The Assistant Regional Chief ALJ for Region VIII wrote that
this applicant was recommended, in part, because of his knowledge of the
office structure, management, and service area from his prior experience
as the HOCALJ for that office.
On January 9, 2006, the incumbent HOCALJ for the Hearing Office in Salt
Lake City, Utah informed the Regional Chief ALJ for Region VIII that
he had originally requested to step down as HOCALJ because he had been
recovering from pneumonia and had been on oxygen for twenty-four hours
per day. He stated that, since that time, he had fully recovered and
believed he could now continue as HOCALJ for that office.
On January 12, 2006, the Regional Chief ALJ for Region VIII issued a
memorandum, informing the Chief ALJ that (1) the health of the incumbent
HOCALJ for the Hearing Office in Salt Lake City, Utah had improved,
(2) the incumbent HOCALJ wished to continue his job as HOCALJ, (3) the
incumbent HOCALJ had performed well and there was no reason to remove
him or ask for his resignation.
In an email dated January 30, 2006, the incumbent HOCALJ wrote that
the Regional Chief ALJ for Region VIII had contacted him several weeks
ago, asking about his health and whether he would be willing to stay on
as HOCALJ. According to the email, the Regional Chief ALJ for Region
VIII officially asked the incumbent HOCALJ to remain in his position on
January 27, 2006, and the incumbent agreed to stay on.
In a letter dated February 7, 2006, the Assistant Regional Chief ALJ
for Region VIII informed complainant that the vacancy announcement had
been canceled because the incumbent HOCALJ had decided to remain in his
position as HOCALJ.
On June 23, 2006, complainant filed an EEO complaint alleging that
the agency subjected complainant to discrimination on the basis of
reprisal for prior protected EEO activity when the agency did not select
complainant for the position of Hearing Office Chief Administrative
Law Judge for the Hearing Office in Salt Lake City, Utah under vacancy
announcement number 154-303-9605.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's September 17, 2007 motion for a decision
without a hearing and issued a decision without a hearing on November 15,
2007, in favor of the agency. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing because there was a genuine dispute over whether
complainant established a prima facie case of discrimination on the basis
of reprisal, and whether he demonstrated that the agency's articulated
reasons were a pretext for discrimination. Rather than challenge the
recommending official's recommendation of the applicant in Kentucky,
complainant maintains that he was discriminated against when the Regional
Chief ALJ for Region VIII failed to recuse himself from the selection
process, asked the incumbent HOCALJ to remain in his position, and
thereby cancelled the vacancy announcement.
ANALYSIS AND FINDINGS
A. Standard of Review
In rendering this appellate decision, the Commission reviews de novo the
AJ's legal and factual conclusions, and the agency's final order adopting
them. 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999) (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo"). The Commission is free to accept (if accurate)
or reject (if erroneous) the factual conclusions and legal analysis of
the AJ and agency. See id. at Chapter 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").
B. AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether the AJ appropriately issued a
decision without a hearing on this record. The Commission's regulations
allow an AJ to issue a decision without a hearing when the AJ 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. Department of Defense, 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
administrative judge 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 administrative judge could order discovery, if necessary, after
receiving an opposition to a motion for a decision without a hearing).
Here, we find that the AJ's issuance of a decision without a hearing was
appropriate, because there exists no genuine issue of material fact to
be resolved at a hearing.
Complainant can establish a prima facie case of reprisal for prior
protected EEO activity discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Specifically, in a reprisal for prior protected EEO activity claim, and
in accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997),
a complainant may establish a prima facie case of reprisal by showing
that: (1) he engaged in a protected EEO activity; (2) the agency was
aware of the protected activity; (3) subsequently, the agency subjected
complainant to adverse treatment; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The prima facie inquiry may be dispensed with in this case, however,
because the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case
of discrimination on the basis of reprisal for prior protected EEO
activity, the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for cancelling the vacancy announcement.
The record includes letters and emails from the incumbent HOCALJ and the
Regional Chief ALJ for Region VIII, stating that the incumbent HOCALJ
initially stepped down for health reasons, the health of the incumbent
HOCALJ subsequently improved, and the Regional Chief ALJ for Region VIII
decided that the incumbent HOCALJ should remain in his position based
on his past performance and improved health status.
Complainant argues that there is a genuine issue of material fact over
whether he showed that the agency's articulated reason was a pretext for
discrimination. Although complainant acknowledges in his reply brief
that the incumbent HOCALJ had health problems, complainant argues that
the incumbent HOCALJ resigned from his position not for health-related
reasons, but to ensure that his friend, the applicant in Kentucky,
returned to the Salt Lake City office with the agency paying his moving
expenses. Complainant alleges that the Regional Chief ALJ for Region VIII
objected to the recommendation of the applicant in Kentucky because his
previous tenure as HOCALJ had been marred by numerous EEO complaints.
Complainant further alleges that after informing the incumbent HOCALJ
that his friend could not be selected, the Regional Chief ALJ further
interfered with the selection process by asking the incumbent HOCALJ to
remain in his position without having to submit an application or undergo
an interview with the recommending officials. According to complainant,
the incumbent HOCALJ agreed to remain as the HOCALJ for that office
because he did not want anyone but his friend, the applicant in Kentucky,
to be selected for the position.
The Commission finds that there is no evidence in the record to show
that management's decisions to allow the incumbent HOCALJ to remain
in his position and to cancel the vacancy announcement were related
to complainant's prior EEO activity rather than the improved health of
the incumbent HOCALJ. Therefore, the Commission finds that the AJ did
not err in finding that complainant failed to establish that he was
discriminated on the basis of reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final order, finding that complainant failed to establish
discrimination on the basis of reprisal for prior EEO activity.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 30, 2009
Date
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0120081038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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