0120141622
11-29-2016
Kelvin J.,1 Complainant, v. Denise Turner Roth, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kelvin J.,1
Complainant,
v.
Denise Turner Roth,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120141622
Hearing No. 520-2013-00147X
Agency No. 11R2PBSOS13
DECISION
On March 24, 2014, Complainant filed an appeal from the Agency's February 27, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish he was discriminated against on the bases of race (African American), color (Black), and age (47) when, on or about July 28, 2011 Complainant was not selected for the position of Supervisory Building Manager under Agency Vacancy Announcement #112042MP; and in reprisal for prior EEO activity when, on or about September 12, 2011, Complainant was notified of his reassignment to a different work facility.
BACKGROUND
The following facts of record were articulated in the AJ's January 23, 2014 decision without a hearing:
At the time of events giving rise to this complaint, Complainant worked as a Building Management Specialist (GS-12) at the Agency's Bowling Green facility in New York, New York. Complainant applied for the position of Supervisory Building Manager under Agency Vacancy Announcement #1120462MP, and was deemed qualified for the position and selected to participate in the first-round of the Agency interview process. The Chief of Technical Service and two Supervisory Contract Officers were the members of the first-round interview panel. Applicants were presented with a series of standard questions at the first-round interview, and their responses were scored and discussed by panel members. Upon deliberations, the first-round panel forwarded five names to the second-phase of the application process. Complainant was not amongst the five applicants forwarded by the first-round interview panel.
Among the five applicants forwarded to the second-phase were one African American female, age 56; an African American male, age 45; a Hispanic female, age 27; an Asian male, age 50; and a White male, age 54. The five applicants were interviewed by the second-phase interview panel consisting of the Senior Management Officer (Selecting Official) and the Director of Portfolio Management. Upon review of the applications and the applicant interviews, the Selecting Official elected not to make a selection from the five applicants forwarded by the first-round panel. The Selecting Official's rational for declining to select from the forwarded applicants was that all of the applicants failed to demonstrate sufficient oral communications skills or supervisory experience, nor did they demonstrate a working understanding of the requirements of the position.
Agency management began to explore other avenues for filling the position, i.e., reassignment. Upon an inquiry from a member of the Board of Directors, the Human Resources Director began assessing the fitness of one of the Special Assistants in the Office of the Regional Commissioner for the Public Building Service for the position at issue. At the conclusion of his inquiries it was determined that the individual had the appropriate work-detail history, as well as, related supervisory experiences accumulated in his position with the United States Army. Additionally, he was already a GS-13 grade level employee, making an administrative reassignment appropriate to fill the position at issue.
On September 28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of "Issues Presented" above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing. On March 18, 2013, both parties responded to the AJ's 15-day summary judgment motion. On January 23, 2014, the AJ issued a decision without a hearing finding Complainant failed to establish that he was discriminated against as alleged. The Agency issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant through his representative, request that the Commission reverse the Agency's final order and remand the case for a hearing. Complainant contends that it is clear that summary judgment was improper because the AJ weighed conflicting evidence in rendering his decision. In response, the Agency requests that the appeal be denied because Complainant did not raise material facts in dispute that warrant a hearing. Additionally, the Agency concurs with the AJ's finding that Agency officials articulated legitimate, non-discriminatory reasons for the employment actions, which Complainant failed to establish were pretext for discrimination.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
We must 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. Dep't of Def., 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).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment & Reprisal
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, color, age, and reprisal, we find that substantial evidence in the record supports the AJ conclusion that he did not show that the Agency's reasons were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for each action it took, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
Specifically, with respect to the allegation that he was not selected for the Supervisory Building Manager position, the record reflects that the Complainant did not make it to the second-phase of the hiring/interview process. Additionally, the Selecting Official elected not to choose any of the applicants from the second-phase of the process, and instead in consultation with senior management, decided to reassign a current GS-13 employee to the position instead. The Selecting Official was not satisfied that any of the second-phase applicants were qualified for the position in question. Complainant did not establish that he was already qualified for reassignment to the position.
With respect to Complainant's allegation that he was reassigned in reprisal for his prior EEO activity, the record reflects that the Agency was undergoing a restructuring which required the reassignment of personnel to different facilities at the time of the events in question. Complainant acknowledges his awareness of the restructuring and the need for reassignments. Additionally, Complainant acknowledges that he previously expressed an interest in being transferred out of the Bowling Green facility. Not only did the Agency need to reassign employees as a result of the restructuring, Agency officials also thought they were accommodating Complainant's previous requests to be transferred out of the Bowling Green facility. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
CONCLUSION
Based on a thorough review of the record, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate she was subject to discrimination on the bases of race, color, and age when on or about, July 28, 2011 he was not selected for the position of Supervisory Building Manager under Agency Vacancy Announcement #112042MP; and in reprisal for prior EEO activity when, on or about September 12, 2011, he was notified of his reassignment to a different work facility. The Agency's final order adopting the AJ's decision therefore is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__11/29/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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