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.