0120071295
10-22-2009
Frederick W. Geary, Jr. Complainant, v. Tom Vilsack, Secretary, Department of Agriculture, Agency.
Frederick W. Geary, Jr.
Complainant,
v.
Tom Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120071295
Hearing No. 100-2004-00294X
Agency No. ARS200301270
DECISION
On January 3, 2007, complainant filed an appeal from the agency's November
28, 2006 final order concerning his equal employment opportunity (EEO)
complaint claiming unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant worked as a Physical Security
Specialist at the agency's Animal and Plant Health Inspection Service
(APHIS) facility in Riverdale, Maryland. The record reveals that
complainant applied for the position of Physical Security Specialist
advertised under Vacancy Announcement ARS-X2E-2375, in the Agriculture
Research Service (ARS). Complainant was among the top eight candidates
and was interviewed for the position, and a reference check was
subsequently conducted.
Instead of contacting the three references listed by complainant in
his application for the subject position, a member of the interview
panel (IP1) contacted the Director of Employment Services at APHIS,
complainant's supervisor (S1). S1 informed IP1 that complainant needed
to work on his writing skills, although complainant had average to
good communication skills. S1 also indicated that complainant did not
have the ability to manage a nation-wide policy office; that complainant
had some issues with strategic thinking; that he had problems reaching
compromise; and that he had a dogmatic approach. S1 further indicated
that complainant had conflicts in the past with his superiors and with
others, relating to security issues.
Complainant was among the three top candidates forwarded to the selecting
official (SO). The interview panel recommended that SO interview the
other two candidates, but not complainant. Ultimately, complainant was
not selected for the position.
On March 25, 2003, complainant filed the instant formal EEO
complaint. Therein, complainant claimed that he was the victim
of unlawful employment discrimination on the bases of disability
(psoriatic arthritis) and in reprisal for prior protected activity when
the agency contacted his supervisor who was not on his application
contact list, but that it did not contact any of his other references.
Complainant claimed that this action resulted in his non-selection for
the GS-0080-13/14, Physical Security Specialist positions advertised
under Vacancy Announcement ARS-X2E-2375, on December 10, 2002.
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 complainant's objections, the AJ assigned
to the case granted the agency's August 1, 2005 motion for a decision
without a hearing and issued a decision without a hearing on September
26, 2006. The AJ determined that complainant failed to put forth any
evidence to corroborate his contentions that the agency was motivated
by discriminatory and retaliatory animus when his supervisor provided a
reference and when he was not selected for the position. The AJ further
found that although complainant repeatedly argued that the agency failed
to provide adequate discovery responses, the record did not support
his contentions. Ultimately, the AJ found that complainant failed to
show that a hearing was warranted in this case and granted the agency's
motion for a decision without a hearing. 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.
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 Commission determines that the issuance of a decision without a
hearing was improper, due to the inadequacy of the present record.
Because complainant alleged that he was not selected for the subject
position, the applications of the candidates, interview notes, and
ranking sheets for the position were critical to the investigation of
whether discrimination or retaliation occurred. The record reflects
complainant requested the ranking sheets and interview notes from the
agency during the discovery period, to which the agency responded that it
was trying to retrieve any records that "still exist." The record reveals
that the agency failed to supplement the record with this information.
We note that agencies have a duty to maintain pertinent evidence upon
receiving notice that a complainant has initiated the EEO process.
Clayton v. United States Postal Service, EEOC Appeal No. 0720070042,
Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114
(August 9, 2006). In this case, the record is devoid of any of the
documents relating to each candidate's application. The record is also
devoid of any evidence relating to how the interview panel determined
what the applicants' qualifications were in order to rank them at
the interview stage and beyond. The Commission acknowledges that
the record does contain complainant's application and other documents
that state the conclusions reached by the panel. However, the record
does not contain any of the relevant data to corroborate the panel's
evaluations of each candidate. We note that such conduct has resulted
in adverse inferences against agencies in the past. Clayton, supra,
Cosentine, supra. The agency asserted that complainant non-selection
was attributable to complainant's not being the top candidate, and was
not based on its reliance upon the comments of S1, referenced above.
Complainant has repeatedly claimed that he has extensively engaged in
prior protected activity, and that S1's reference was made in retaliation
for that activity. We find that the record is devoid of the requisite
documentation for complainant to demonstrate that his qualifications
were of such merit that absent discrimination or retaliation, he would
have been selected for the position. As such, we find that the AJ erred
in issuing a decision without a hearing.
Based on a thorough review of the record and the contentions on appeal,
we vacate the agency's final order adopting the AJ's finding that
complainant was not discriminated or retaliated against as he alleged.
We remand the claim for further proceedings before an EEOC AJ. The agency
is ordered to comply with the order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit 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 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 (K1208)
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, D.C. 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 (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, D.C. 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 (R0408)
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 (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
October 22, 2009
Date
2
0120071295
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
6
0120071295