0120092877
12-04-2009
Herman Dennis, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention) Agency.
Herman Dennis,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Centers for Disease Control and Prevention)
Agency.
Appeal No. 0120092877
Hearing No. 410-2008-00191X
Agency Nos. HHS-CDC-0014-2007 & HHS-CDC-0135-2007
DECISION
On June 16, 2009, complainant filed an appeal from the agency's June 5, 2009 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a Program Assistant in the Epidemiology Investigative Services Branch of the Career Development Division in the Office of Workforce Career Development in the Office of the Director at the agency's Centers for Disease Control and Prevention in Atlanta, Georgia.
Complainant filed two EEO complaints, subsequently amending one EEO complaint. Therein, complainant claimed that he was discriminated against on the bases of race (black), sex (male), religion (AME), disability (impairments: back and neck), age (52) and in retaliation for prior protected activity (arising under the above referenced statutes) when:
1. On October 30, 2006, he became aware false and derogatory information was given to interview panel members when reference inquiries were made during the selection process for a CDC vacancy in 2004;
2. On February 12, 2007, he received a fully successful on his 2006 Annual Performance Evaluation;
3. On May 9, 2007, he was excluded from a group cash award;
4. On May 18, 2007, his supervisor rejected his work;
5. On June 29, 2007, he received an email from his supervisor citing unacceptable behavior; and
6. On July 25, 2007, he received notification he was not selected for the Career Opportunities Training Agreement (COTA) Program Analyst position announced under Vacancy Announcement Number HHS-CDC-TI-2007-0745.1
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 granted the agency's August 4, 2008 motion for a decision without a hearing and issued a decision without a hearing on April 21, 2009. The AJ's decision contained both a thorough statement of the undisputed facts and a thoughtful analysis of each claim. Ultimately, the AJ concluded that complainant did not present evidence sufficient to warrant 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. Neither party submitted a statement in support of or in response to the instant appeal.
ANALYSIS AND FINDINGS
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 in dispute. 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. 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. 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Upon review of the record, we conclude that the issuance of a decision without a hearing was appropriate because we cannot infer discriminatory intent from the evidence proffered by complainant. For example, even if negative information was given during a reference check for the 2004 vacancy, there is nothing that links it to complainant's protected classes. Concerning the 2007 vacancy, complainant was ranked fifth out of the sixth candidates interviewed, and he has provided no objective evidence that his qualifications for the position were superior to those of the selectee. Rather than suggesting discriminatory animus, the record suggests that the named responsible management officials had taken several steps to help complainant attain promotion, including, but not limited to, creating the COTA position for which they hoped complainant would be competitive.
Additionally, in regard to his 2006 performance appraisal, complainant fails to corroborate his belief that he was deserving of a higher rating with evidence from which a reasonable fact could justifiably draw an inference of discrimination.2 He does not respond to his supervisor's statement that, during the rating period, the administrative tasks associated with the EPI Elective Program were given to complainant in an effort to justify the promotion he sought, but that because of the problems he had keeping up with the program, it was ultimately moved from the Branch to the Division level. In addition, complainant does not address her contention that all of the individuals in his Branch, including her, received "fully successful" ratings for 2006. Thus he was treated as favorably as all of his coworkers in the branch.
Concerning the events in May 2007, there is simply no objective evidence that complainant was excluded from a group cash award or that his supervisor treated him differently from his coworkers in regard to rejecting "pen and ink" changes on submitted work. Finally, in regard to the email for "unacceptable conduct," complainant does not deny that he failed to inform his supervisor of his absence or to rebut the propriety of her obligation to be able to account for her employees when they leave the premises for extended periods of time.
When deciding whether a complaint is appropriate for summary judgment, an AJ cannot make credibility determinations. Rather, he must look at the evidence to determine whether, if it proves to be true, complainant could prevail. This record lacks such evidence as complainant has proffered only accusations. Without more, justifiable inferences cannot be drawn in his favor. We discern no basis to hold a hearing on these complaints or to disturb the AJ's well reasoned decision.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the agency's final order.
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
December 4, 2009
__________________
Date
1 Pursuant to 29 C.F.R. � 1614.107(a)(1), the agency dismissed complainant's claim that his supervisor slandered his credibility. Complainant does not raise the propriety of this dismissal on appeal, and upon review the Commission exercises its discretion not to address it further.
2 Complainant's performance was assessed by a supervisor who had begun to supervise him in 2005 but did not give input to his performance until after the conclusion of calendar year 2006.
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0120092877
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013