05a31021final
12-12-2003
Leroy J. Holdmeyer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Leroy J. Holdmeyer v. Department of Agriculture
05A31021
12/12/03
.
Leroy J. Holdmeyer,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A31021
Appeal No. 01A22894
Agency No. 000411
Hearing No. 160-A0-8549X
DENIAL OF REQUEST FOR RECONSIDERATION
On June 6, 2003, Leroy J. Holdmeyer (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission or
EEOC) to reconsider the decision in Leroy J. Holdmeyer v. Department of
Agriculture, EEOC Appeal No. 01A22894 (May 8, 2003). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact
on the policies, practices or operations of the agency. Id. For the
reasons set forth herein, complainant's request is granted.
BACKGROUND
In the previous decision, the Commission dismissed the appeal because we
determined that the appeal raised the same claims as those alleged in
a civil action complainant filed in a U.S. District Court. On request
for reconsideration, complainant claims that the civil action does
not encompass the instant complaint; rather, the civil action only
raises those issues contained in a previously filed complaint (Agency
No. 990970).<1> The agency did not file a response to complainant's
request for reconsideration.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.409 provides that the filing of a
civil action "shall terminate Commission processing of the appeal."
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a complainant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of
the federal district court. See Stromgren v. Department of Veterans
Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of
Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,
EEOC Request No. 05880114 (October 25, 1988). The proper inquiry to
determine whether the dismissal is warranted based on the filing of a
civil action is "whether the issues in the EEO complaint and the civil
action are the same, that is, whether the acts of alleged discrimination
are identical." Everett v. Dept. of Army, EEOC Request No. 05930234
(August 5, 1993)(citing Bellow v. United States Postal Service, EEOC
Request No. 05980913 (November 27, 1989).
After a careful review of the entire record, including an examination
of the complaint filed in the civil action, we find the prior decision
erroneously determined that the instant complaint alleged the same
claims as those contained in the civil action. Rather, an examination
of the record reveals that the civil action alleges discrimination when,
among other things, complainant was not selected for a Providence Rhode
Island, Circuit Supervisor vacancy in 1998. The instant complaint
alleges complainant was retaliated against for filing the first EEO
complaint when he was not selected for a Circuit Supervisor position
in 1999. Accordingly, since we find that the appeal should not have
been dismissed, we will now examine the merits of the complaint.
On March 1, 2000, complainant filed a complaint in which he alleged he
was discriminated against on the basis of reprisal (prior EEO activity),
when: (1) he was denied the opportunity to act in the Circuit Supervisor
position in Middlebury, Connecticut; and (2) when, on October 22, 1999,
he was not selected for the Circuit Supervisor position in Providence,
Rhode Island. After an investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing since she determined there
were no material facts in dispute. Specifically, the AJ found that
complainant failed to present any evidence that would raise a dispute
as to the reasons for the nonselection. Indeed, complainant failed to
dispute the selecting official's reasons for choosing the selectee,
which were described in detail in an affidavit. Furthermore, the AJ
found no one was selected to act in the Middlebury, Connecticut position.
Therefore, the AJ found complainant failed to establish an inference of
discrimination with respect to this issue.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by a retaliatory animus toward complainant.
CONCLUSION
Accordingly, after a review of complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to grant the complainant's request.
The decision of the Commission in Appeal No. 01A22894 is vacated, and
the agency's final decision is affirmed. Complainant is provided with
a right to request reconsideration again because we are examining the
merits of his complaint for the first time.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
12/12/03
Date
1Before filing in District Court, complainant appealed his first complaint
to this office. See Holdmeyer v. Dept. of Agriculture, EEOC Appeal
No. 01A05256 (August 6, 2002).