0120110288
06-11-2013
Eric L. Friedman, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Eric L. Friedman,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120110288
Hearing No. 570-2010-00476X
Agency No. 200922735FAA02
DECISION
On October 26, 2010, Complainant filed an appeal from the Agency's September 14, 2010 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Aviation Safety Inspector, FV-J, at the Air Transportation Division, Federal Aviation Administration, in Washington, District of Colombia. On August 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and religion (Jewish) when the Internal Security Division delayed the approval of his security clearance which resulted in the Agency withdrawing an offer for the position of Supervisory Program Analyst under Vacancy Announcement AWA-AAI-08-AB-3663-10808.
The AJ found the following facts: in or about September 2008, Complainant applied for the position of Supervisory Program Analyst, FV-0343-K in the Safety Analysis Branch, AAI-220. The Agency selected Complainant for the position. The position required a background investigation and security clearance. The position the Agency selected Complainant for was in the office of Safety Analysis Branch, AAI-220. The manager, who offered the position, did so without prior approval of senior management. The AJ found that senior management had decided to consolidate several subordinate offices. This consolidation would affect the position offered to Complainant. Therefore, while waiting for notification from Personnel Security that Complainant's clearance was complete, the decision was made to withdraw the offer to Complainant.
The AJ found that Complainant failed to establish a prima facie case of discrimination. The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In addition, the AJ found that although the Agency never revoked or denied Complainant's security clearance, the Agency did postpone the issuance of the clearance because the Personnel Security Office was conducting a harassment investigation involving Complainant.
The AJ concluded that Complainant failed to produce any evidence that the decision to rescind the offer was based on his religion or his sex. The AJ noted that Complainant had not shown that the selecting officials were aware of his religion. Additionally, the AJ found that Complainant failed to offer any evidence to contradict the Agency's proffered reasons for rescinding the offer, i.e. that the position was no longer necessary.
At the conclusion of the investigation, the Agency provided Complainant 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. On July 16, 2010, the Agency filed a motion for a decision without a hearing. Complainant filed a brief in opposition. The AJ assigned to the case determined that the complaint did not warrant a hearing and issued a decision without a hearing on September 8, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 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").
We must first 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 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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding. Further, we find that the AJ applied the appropriate standard of review for this case. Additionally, we find that the AJ appropriately considered all justifiable inferences based on the record evidence in Complainant's favor.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming arguendo that Complainant established prima facie cases of religion and sex discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the selecting official (SO) stated that the Administrator for Aviation Safety (AAS) and Deputy Associate Administrator for Aviation Safety (DAAAS) instructed him to rescind the position offer and not to fill the position. The SO stated that the AAS and DAAAS expressed concern that because SO was serving in a temporary detail to the Director's position, the SO made the selection without consulting with them. Further, the SO provided an affidavit that with the pending merger of the Office of Accident investigation and the Office of Aviation Safety Analytical Services, there was concern that the selection of a manger at that time would not be appropriate since the structure of the merged organization had not been finalized.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. We find that Complainant failed to establish that the Agency's proffered reasons for his nonselection were a pretext for discrimination. Specifically, we note that Complainant did not establish that SO's reasons for rescinding the offer were untrue. Further, we note that Complainant has failed to show that the delay in his security clearance was due to discrimination based on his religion or sex. Accordingly, we find that Complainant failed to establish that he was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FO adopting the AJ's finding of no discrimination.
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 (S0610)
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 (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
___6/11/13_______________
Date
2
0120110288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110288