0120080386
09-30-2009
Ira W. Blue, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Ira W. Blue,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080386
Agency No. 056588601840
Hearing No. 510200700171x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 12, 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.
At the time of his complaint dated September 14, 2005, complainant
was a Mechanical Technician, Facilities Maintenance, at the agency's
Air Depot in Jacksonville, Florida.1 His complaint initially raised
eight issues, and all were dismissed by the agency. On appeal,
the Commission affirmed the agency's dismissal of six issues and
remanded two for continued processing. Ira W. Blue v. Department of
the Navy, EEOC Appeal No. 0120061224 (May 9, 2006), RTR den., EEOC
Request No. 0520060807 (January 31, 2007). Before us for review are
complainant's allegations that the agency discriminated against him
on the basis of reprisal for prior protected EEO activity when "(a)
on an unspecified date, the former EEO Officer failed to follow equal
pay and compensation regulations and guidance in regard to the work that
complainant performed in his position as an Engineering Technician, in
Code 6.3.1"; and "(e) on an unspecified date, the EEO Officer, Senior
Legal Counsel and senior management officials limited and restricted his
requests to work credit hours and denied his requests for a desk audit,
a consistency review and an investigation into criminal acts." Id.
Following an investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On July 24, 2007, the AJ issued a
decision without a hearing, again dismissing claims (a) and (e). The AJ
determined that the agency submitted probative evidence for its original
dismissal of (a) and (e), showing that complainant had raised both issues
in prior complaints and that they were initially submitted to the EEO
counselor on July 11, 2005, well beyond the 45-day period for contacting
an EEO counselor.2 The agency pointed to Complaint Nos. 046588610087
and 056588600101, which were adjudicated by the Commission on an appeal
from complainant. See Ira W. Blue v. Department of the Navy, EEOC Appeal
No. 0120063334 (June 7, 2007), RTR den., EEOC Request No. 0520070672
(July 24, 2007). Specifically, in those complaints, complainant raised
issues of compensation while working as an Engineering Technician from
March to December 2003, and matters regarding complainant's involuntary
reassignment in March 2003, denial of a consistency review in July 2004,
denial of credit hours, and denial of a desk audit. Id. As to his claim
regarding an investigation of a criminal act, complainant had asked that
the agency investigate a criminal charge against him that, in August 2003,
he assaulted his immediate supervisor.3 Finally, the AJ held that nothing
in the record or from complainant showed that either of these claims
were brought to the attention of an EEO counselor in a timely manner.
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). 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 determined
at a hearing.
The Commission's regulation at 29 C.F.R. � 1614.107(a)(1) provides
that an agency shall dismiss a complaint "...that is pending before
or has been decided by the agency or Commission," and, the regulation
set forth at 29 C.F.R. � 1614.107(a)(2) provides that an agency shall
dismiss a complaint "that fails to comply with the applicable time limits
[45 days]." The requirement to contact an EEO counselor within 45days
of the event or personnel action is set out at 29 C.F.R. 105(a)(1), and
requires that "an aggrieved person must initiate contact with a counselor
within 45 days." The AJ found that both issues addressed in this matter
were properly dismissed as both untimely and previously decided by the
agency and the Commission. See EEOC Appeal No. 0120063334, supra.
In his appeal statement, complainant argued that the agency did not show
that he was not subject to different treatment than other employees.
However, that under the three-step scheme set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973), for analysis of the merits
of a claim, it is the complainant's burden to establish a prima facie
case of discrimination.4 Complainant also stated that the agency's
motion contained lies and was not truthful. We note that complainant
had the opportunity to contest the agency's motion but did not file a
response with the AJ, and has not presented probative evidence or detail
in support.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record establishes that complainant's
claims should be dismissed.
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
1 Complainant had been working as an Electrical Technician, GS-11,
Facilities Maintenance, until he was reassigned to the position of
Mechanical Technician, GS-11, Facilities Maintenance. Complainant took
a voluntary early retirement with a separation incentive in October 2005.
2 In the instant matter, the agency filed a motion for a decision without
a hearing on May 22, 2007; complainant did not respond. The AJ stated
that she reminded complainant that he had 15 days to respond. See AJ
Decision at 2, n.1.
3 The agency did not investigate the matter, and complainant was issued
a letter of caution.
4 In McDonnell Douglas Corporation v. Green, the Supreme Court set out
the burdens of the parties when the merits of a matter are considered.
First, it is the complainant's burden to establish a prima facie case
of discrimination and show that he was treated less favorably than
others not of his protected class; next, the agency is required to
articulate a legitimate, nondiscriminatory reason for its actions; and,
finally, to prevail, complainant must demonstrate, by a preponderance
of the evidence, that the agency's reason(s) for its action(s) was a
pretext for discrimination, i.e., that the agency's reason was not its
real reason and that it acted on the basis of discriminatory animus.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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0120080386
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080386