0120071629
05-06-2009
Ernest Gerald, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Ernest Gerald,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120071629
Hearing No. 520-2007-00041X
Agency No. 062170
DECISION
On February 9, 2007, complainant filed an appeal from the agency's
January 10, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted 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 a former Special Agent at the agency's Brooklyn, New York facility.
Complainant contacted an EEO Counselor on December 21, 2005, and on
January 26, 2006, he filed an EEO complaint alleging that he was
discriminated against on the bases of race (African-American) and
disability (spinal injury) when:
1. by letter dated November 30, 2005, his requests for a Treasury
Inspector General for Tax Administration ("TIGTA") retirement special
agent badge and associated credentials were denied by the agency;
2. after complainant's motor vehicle accident in January 2000,
the agency did not attempt to offer a reasonable accommodation to the
complainant, although a white female special agent allegedly received
light duty until she healed from an injury; further, his request for
annual leave was denied in a letter dated August 7, 2001;
3. the agency maliciously made complainant the subject of an
internal affairs investigation to determine whether complainant was
disabled; further, complainant had to take a second medical examination
to substantiate the validity of his workers' compensation claim;
4. on June 25, 2002, six days after a spinal fusion surgery,
complainant received a letter proposing to remove him; and
5. several months after the complainant's operation in June 2002,
complainant's supervisor escorted him out of the building.
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. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on December 21, 2006.
In his decision, the AJ found that Issues 2-5 were untimely filed,
and did not represent a continuing violation. Further, the AJ found
complainant failed to establish a prima facie case of race and/or
disability discrimination because he failed to present evidence that
would establish an inference of discrimination. In this regard, the AJ
found that complainant failed to present evidence that employees who were
removed from service received retirement badges and credentials. The AJ
also found that the agency articulated a legitimate, non-discriminatory
reason for denying complainant's request for a retirement badge;
namely, that he was removed from his position, and did not retire.
The AJ noted that agency policy states that the agency will fund the
purchase of badges for those who retire, and that those who separate
for other non-disciplinary reasons may purchase their badges in a shadow
box display with personal funds. The AJ found that complainant failed
to establish that the agency's reasons for its actions were a pretext
for discrimination.
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 he was out of work for a period of
time due to an on-the-job injury. Ultimately, he filed for disability
retirement, and accordingly, should get his badge and credentials like any
other retiree. He contends that others outside of his protected class
have received their retirement badges. Finally, complainant maintains
that the AJ erred in issuing a decision without a hearing because the
Report of Investigation was not complete. In response, the agency argues
that complainant was removed due to his failure to perform the duties
of his position. The agency maintains that there are no material facts
in dispute, and as such, we should affirm its final action.
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 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"). 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. 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).
The record reveals that, on July 25, 2002, complainant was issued a
Notice of Proposed Removal from his position as a Special Agent due to
his inability to perform the duties of his position. A Standard Form
50 (SF-50) in the record dated August 18, 2002, states complainant was
removed from his position. See Report of Investigation at p. 271. On or
about September 7, 2002, complainant applied for disability retirement,
which was later approved. Two years later, on or about July 21, 2004,
complainant requested his retirement badge and credentials. This request
was denied because retirement badges and credentials are only provided
to retirees. Because complainant was not a retiree, he could only get
his credentials in a shadow box, paid for with private funds.
After a careful review of the record, we find the AJ was correct
in issuing a decision without a hearing, as no genuine dispute of
material fact exists. Agency policy states that it will only provide
retirement badges and credentials to those who have retired, as opposed
to complainant, who was removed from his position, notwithstanding that
he subsequently obtained disability retirement. Complainant failed
to present evidence of any similarly-situated employee who was removed
from his or her position and issued a retirement badge and credential.
Further, complainant failed to present sufficient evidence that would
dispute the agency's reasons for its action, and failed to produce any
evidence that would establish that the badge and credentials were denied
due to his race and/or disability. As for the remaining dismissed issues,
we find the dismissal was proper, given that complainant did not contact
an EEO Counselor until 2005, years after the events in question.1 We
have reviewed the Report of Investigation and find that the agency
conducted an adequate investigation.
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
final action.
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
May 6, 2009
Date
1 EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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