0120080925
12-18-2009
Jeanne F. Lane, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Jeanne F. Lane,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 0120080925
Hearing No. 550-2007-00430X
Agency No. YT070136
DECISION
On December 17, 2007, complainant filed an appeal from the agency's
January 3, 2008 final order concerning her 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 timely1 and is accepted for de novo
review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission VACATES the agency's final order.
ISSUE PRESENTED
Whether the AJ properly issued a decision, without a hearing, in favor
of the agency.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Quality Assurance Specialist, GS-1910-11, Technical Analysis Team, DCMA,
Lockheed Martin Sunnyvale, California. On November 27, 2006, complainant
filed an EEO complaint alleging that she was discriminated against on
the bases of sex (female), disability (foot problems, diabetes), age
(64), and reprisal for prior protected EEO activity [arising under ADEA,
Rehabilitation Act and Title VII] when:
(1) complainant was not selected for the position of Quality Assurance
Specialist, GS-1910-12, vacancy announcement no. WTH306279897;2
(2) complainant was not selected for the position of Quality Assurance
Specialist, GS-1910-12, vacancy announcement no. WTH3O6201429; and
(3) complainant was removed from performing Corrective Action Reports
(CAR) on November 27, 2006.3
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. After both parties responded to her October 29,
2007 Notice of Intent to issue a decision without a hearing, an AJ issued
a decision without a hearing on December 10, 2007.
AJ Decision
The AJ initially noted that complainant has presented sufficient
evidence to raise a genuine issue of fact on the question of whether
her foot condition substantially limits the major life activity of
walking, and therefore, for the purpose of her Decision she accepted
that complainant was an individual with a disability. She then found
that complainant established a prima facie case of reprisal, age, sex
and disability discrimination as to the non-selections. The AJ then
found that the agency articulated legitimate, nondiscriminatory reasons
for its non-selections. The AJ found as to issue (1) that complainant
applied for the position of Quality Assurance Specialist, GS-191O-12,
vacancy announcement WTK306279897 in June 2006. Complainant was
deemed qualified, and her name was on the referral list along with 12
other individuals. The selecting official (SO) selected S1 (female),
but S1 declined the position in July 2006. SO therefore cancelled the
vacancy and re-announced it in November 2006. Complainant's name was on
the Referral List along with 25 other individuals. However, complainant
was not interviewed for the re-announced position. The AJ found that SO
explained that she attempted to contact complainant by email and telephone
to schedule an interview, but was unable to reach her. SO selected S2
(female, age 55, no disability/protected activity). SO stated that she
selected S2 based on her "very good resume" and her "good performance"
during the interview. The AJ concluded that complainant failed to
present evidence of an unlawful motive.
The AJ then addressed issue (2) as follows: complainant was deemed
qualified and her name was on the referral list along with 16 other
individuals. Complainant was interviewed for the position. SO selected
S3 (male, age 49, medical impairment of legs, prior protected activity
unknown). She stated that she chose him because he had the experience
and education she was looking for. According to the agency, complainant
was not among the top candidates recommended by the interview panel
because she did not perform well in her interview. The AJ noted that
complainant's belief that her education was superior to that of the
selectees did not establish a discriminatory motive.
The AJ then addressed issue (3) as follows: on November 27, 2006,
complainant was instructed not to submit any CARs unless she had performed
the associated audit. Complainant admitted that she had signed and issued
CARs on November 20, 2006 and November 21, 2006, even though she had not
conducted the audits. Complainant acknowledged that an employee cannot
write and issue the CAR if that employee did not perform the audit.
The AJ found that complainant did not present evidence of pretext.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates arguments previously made. She
describes her qualifications and credentials. She suggests that the
first vacancy was closed and re-advertised in order to discriminate
against her. She also implies that it is unlikely that the agency
could not reach her since her telephone numbers had been the same for
many years. As to issue (2), she asserts: "I request to see the notes
written about me so I can be better prepared in the future to discuss
my abilities, when this job is re-advertised because at this moment
it is only fair and would alleviate the concern that this action is
retaliatory/discriminatory against me for having filed EEO complaint in
the past." She asks that the case be remanded to an Administrative Judge.
The agency asks the Commission to affirm the final order.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for
strident cross-examination and summary judgment on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995). "Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims." Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). The hearing process is intended to be an extension of
the investigative process, designed to "ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses." See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e). For the reasons that follow, we find that judgment
as a matter of law should not have been granted in this case.
As the AJ noted, complainant established a prima facie case of
discrimination and retaliation as to the non-selections. Therefore, we
consider whether the agency articulated a legitimate, nondiscriminatory
reason for its actions relative to issue (1). SO stated that when the
position was first advertised, she selected S1 over complainant because
she "had much more experience" than complainant. ROI, Ex. F-14, at 8.
SO provided little to no explanation as to what "much more experience"
means. SO further indicated that when S1 declined the offer, she did not
then select complainant as she was not her second choice. Id. She stated
that she cancelled the announcement and re-announced it because she
"was not satisfied with the remaining candidates." Id., at 9. Thus,
we find that the AJ erred in finding that the record, with respect to
issue (1), was adequately developed for summary disposition.
SO stated that once the position was re-announced, she was not able to
reach complainant in order to schedule an interview. She provided,
in support of this contention, a copy of an email dated December 11,
2006, which states "I am setting up interviews for the GS-1910-12
position on 12/13 and 14. I have left voice mail messages for you at
your home and work numbers. If you would like to be interviewed for the
position, please call me as soon as possible. Thanks..." ROI at 290.
The email does not indicate when SO allegedly left these messages,
nor does she indicate the telephone numbers that she supposedly used.
In an attempt to establish pretext, complainant asserts "I have not
changed my phone number. On all other announcements, I have received
a telephone call and responded. I have even received telephone calls
at my residence when I am on leave." ROI, at 421. She elaborates on
appeal, "I was not contacted at my desk ... in the same building as
the telephone interviews were done and my home phone has not changed in
twenty nine years..." In finding that summary judgment was appropriate,
we find that the AJ erred by accepting, as credible, SO's assertion that
she tried to contact complainant, during the relevant time period, at
home and at work. As noted above, when a party submits an affidavit and
credibility is at issue, summary judgment on such evidence is improper.
As to issue (2), vacancy announcement no. WTH3O6201429, SO stated that
complainant was qualified and her name was on the Referral List along
with 16 other individuals. SO stated that the candidates (including
complainant) were interviewed, and then the panel members recommended
the top 3-5 candidates to SO. Complainant was not among those top
recommended candidates. SO explained that she had established the panel
of three that would conduct interviews, which included herself and two
others. She stated that the selectee "met the criteria I was looking
for; past experience, education, [and] awards." ROI, Ex. F-14, at 5.
She further stated that complainant was not selected because she "did
not interview well and because the selectee had a lot more experience."
Id. SO provided no detail concerning how the selectee's experience,
education and/or awards compared to those of complainant. When asked
whether anything specifically stood out about complainant's interview,
SO claimed to have no recollection. Id. SO also stated that when
asked for copies of her interview questions or panel notes, "The legal
department asked for the interview notes and I provided them to Legal."
In addition to stating that the selectee met the criteria she was looking
for, namely "past experience, education, awards, SO also indicated that
"[h]e met the requirements and qualifications that were listed in the
guidance I was provided." Id. The other two panel members testified
that they could not recall anything about complainant's interview and
did not have notes from the interview. ROI, Ex. F-20 at 5, Ex. F-
21, at 6. The investigator noted in the report that, "The agency did
not provide a copy of the interview questions, panel notes, or panel
recommendations for vacancy announcement WTH306201429." ROI, at 13.
We remind the agency that the agency's burden, while not onerous,
must provide a specific, clear, and individualized explanation for
the treatment accorded the complainant that frames the factual issue
"with sufficient clarity so that [complainant] will have a full and fair
opportunity to demonstrate pretext." Burdine, at 253. Thus, we find that
the AJ again erred in finding that the record, with respect to issue
(2), was adequately developed for summary disposition.4
CONCLUSION
In this case, issuance of a decision without a hearing was not warranted
under 29 C.F.R. � 1614.109(g). The Commission VACATES the agency's
final order and REMANDS the matter for a hearing in accordance with this
decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the San Francisco District
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 (K0501)
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 19848,
Washington, D.C. 20036. 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, 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 (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 anattorney 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
_____12/18/09_____________
Date
1 Although the appeal was filed prematurely (before the agency had taken
final action), the Commission exercises its discretion to consider the
appeal to be timely filed.
2 As will be discussed, this position was cancelled and then re-announced.
Complainant was not selected either time, and alleges that both times,
she was subjected to discrimination.
3 In the Report of Investigation (ROI), the investigator noted that
complainant had initially included another non-selection claim, but she
withdrew this claim during her interview on May 24, 2007.
4 As there are genuine issues for trial as to issues (1) and (2), we
decline to reach a determination concerning issue (3) at this juncture.
Accordingly, issue (3) shall be addressed by the Administrative Judge
to whom the case is assigned.
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0120080925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080925