Jerald Meidel, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Office of the Inspector General), Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01973402 (E.E.O.C. Jan. 12, 2000)

01973402

01-12-2000

Jerald Meidel, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Office of the Inspector General), Agency.


Jerald Meidel v. Department of Defense

01973402

January 12, 2000

Jerald Meidel, )

Complainant, )

) Appeal No. 01973402

v. ) Agency No. 95-06

) Hearing No. 100-96-7089X

William S. Cohen, )

Secretary, )

Department of Defense, )

(Office of the Inspector General), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges

that the agency discriminated against him on the basis of sex (male) when:

(1) he was not selected for the GS-14 Special Inquiries Investigator

position on August 11, 1994; and (2) for the rating period October 5,

1993 through May 31, 1994, he received a rating of "met" in the critical

job element of Workload Management, and he did not receive a performance

award. The Commission accepts the appeal in accordance with EEOC Order

No. 960.001. For the following reasons, we vacate and remand the FAD.

The issue presented in this appeal is whether the EEOC Administrative

Judge (AJ), in making the decision not to hold a hearing, erred in

determining that there were no genuine issues of material fact.

The record reveals that complainant, a GS-13 Special Inquiries

Investigator at the agency's Office of Inspector General in Arlington,

Virginia, filed a formal complaint with the agency on March 10, 1995,

alleging discrimination. At the conclusion of the investigation,

complainant requested a hearing before an AJ who subsequently issued a

Recommended Decision (RD) without a hearing, finding no discrimination.

The AJ concluded that although complainant established a prima facie

case of sex discrimination, he failed to prove, by a preponderance of

the evidence, that the agency's legitimate, nondiscriminatory reasons

for its actions were a pretext for unlawful discrimination. The FAD

adopted the RD.

The Selecting Official (SO), who was also complainant's Supervisor,

denied discriminating against complainant. The SO stated that she

chose the selectee who had an extensive investigative background;

demonstrated the ability to investigate efficiently and effectively;

was the best writer in the Division; and exhibited the potential to

perform team leader duties. The SO stated that complainant was a very

good investigator. She was concerned, however, that his propensity to be

overly thorough would slow down the team's production. The SO explained

that complainant received a rating of "met" in the critical job element

of Workload Management and had on at least two previous performance

appraisals because his production was among the lowest in the Division.

The SO averred that complainant did not receive a performance award for

the rating period at issue because he had already received an award in

1994 and his performance did not warrant another one.

On appeal, complainant contends that had the AJ held a hearing, his

testimony and the testimony of his witnesses would have undermined the

credibility of the agency officials, and he reiterates his belief that,

based on his experience, he was better qualified for the GS-14 position

than the selectee. Complainant takes specific issue with the emphasis

placed on allegedly vague production standards in regard to the selection

and his performance rating.

The Commission's regulations allow an AJ to issue a decision without a

hearing when she finds that there is no genuine issue of material fact.

See 64 Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter

referred to as 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 United States Supreme Court has

stated that summary judgment is appropriate where the trier of fact

determines that, given applicable substantive law, no genuine issue of

material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). An issue is "genuine" if the evidence is such that a

reasonable fact-finder could find in favor of the non-moving party.

Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).

In the context of an administrative proceeding under Title VII, summary

judgment is appropriate if, after adequate investigation, complainant has

failed to establish the essential elements of his case. Spangle v. Valley

Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In response to a

motion for summary judgment, the trier of fact's function is not to weigh

the evidence and render a determination as to the truth of the matter,

but only to determine whether there exists a genuine factual dispute.

Anderson, 477 U.S. at 248-49.

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 judgement on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, we find that the AJ erred when

she concluded that there was no genuine issue of material fact with

respect to complainant's claims. Complainant was included among the best

qualified candidates for the position. The SO did not conduct individual

interviews, and the agency official's affidavits are the only evidence

of the selectee's superior qualifications. Additionally, concerning

performance awards, the SO, without explanation, made qualitative

distinctions between male and female employees who received the same

performance rating. Moreover, one of complainant's witnesses, a male

Investigator in the same Division and under the same supervision as

complainant, stated that the environment in the office was hostile toward

men in so far as offensive sexist comments and cartoons were tolerated.

This witness also stated that the SO personally encouraged two females

in the office to apply for the GS-14 position. The RD failed to address

this evidence.

While we make no judgment about the veracity or motivation of the

SO, this is precisely the type of evidence that is appropriate

for cross-examination, elaboration and credibility determinations.

EEOC Regulations plainly indicate that the hearing is intended as a

continuation of the investigatory process. 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 his claim. Therefore, we find that the AJ

erroneously issued an RD. Accordingly, the Commission vacates the FAD and

remands this matter to the Hearings Unit of the Commission's Washington,

DC Field Office to be assigned and scheduled for hearing.

ORDER

(1) The Commission remands this complaint to the Hearings Unit of the

Commission's Washington, DC Field Office to be assigned and scheduled

for hearing.

(2) The agency shall send a copy of the complaint record to the Hearings

Unit of the Commission's Washington, DC Field Office within thirty days

of receipt of this decision.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

January 12, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

Date

__________________________

Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.