01A14113
08-14-2002
Martin W. Long, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Martin W. Long v. Social Security Administration
01A14113
August 14, 2002
.
Martin W. Long,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A14113
Agency Nos. 99-0005-SSA,
99-0186-SSA,
99-0233-SSA
Hearing No. 310-AO-5009X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission reverses the agency's final order.
The record reveals that complainant, the Assistant Regional Counsel,
GS-14, at the agency's Office of the General Counsel, in Dallas, Texas,
filed a formal EEO complaint (99-0005-SSA) on October 1, 1998, alleging
that the agency discriminated against him on the bases of his race
(Asian) and sex (male), when he was not selected for an interview for the
position of Supervisory General Attorney, GS-15, posted under recruitment
bulletin PF-98-102. Complainant filed a second complaint (99-0186-SSA),
on February 3, 1999, alleging that the agency discriminated against him
on the bases of his race, sex and reprisal for prior EEO activity, when
he was not assigned to be the first coordinating attorney. Complainant
filed a third complaint (99-0233-SSA) on March 9, 1999 alleging that
the agency discriminated against him on the bases of his race, sex and
reprisal for prior EEO activity, when he was not selected for Coaching
Training on January 12, 1999.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded, as to issue one, that complainant failed to establish
a prima facie case of race or sex discrimination because twelve (12)
of the individuals selected for the interview were male, and at least
one other applicant who was of a different race than complainant was not
selected for interview pursuant to the same process. As to issue two,
the AJ concluded that complainant failed to show that he suffered any
harm as a result of this action, therefore, the AJ dismissed it pursuant
to 29 C.F.R. � 1614.107(a)(1). As to issue three, the AJ found that
complainant failed to establish a prima facie case of discrimination on
any of the alleged bases. Specifically, the AJ found no evidence that
a similarly situated individual of a different race or sex attended
the training. As to reprisal, the AJ noted that there is no evidence
that complainant's prior EEO activity in any way affected the decision
not to select complainant for the training.
The AJ additionally found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. First, complainant was not
selected for an interview because he did not meet the equal employment
opportunity requirement. The AJ noted that other candidates who failed to
meet this requirement were also not selected for an interview. Second,
as to the selection of the first coordinating attorney position, the
agency noted that complainant declined several subsequent invitations
to serve in this role. Finally, complainant was not sent to Coaching
Training because on January 12, 1999, he was not in a position that
required such training and he had attended the training twice in the
preceding two or three years. The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons were
a pretext to mask unlawful discrimination or retaliation. The agency's
final order implemented the AJ's decision.
On appeal, complainant makes the following principal contentions:
the AJ acted improperly in failing to recuse herself from the case
despite having a conflict of interest.<2>
the assignment of the AJ to this case �smacks of collusion between
the Office of the General Counsel, Social Security Administration,
and the EEOC,� and �it seems highly prejudicial to have a black female
judge the actions of another black female in a situation involving a
person of Asian descent when traditional tensions [between individuals
of Asian descent and those of African-American descent] exist.�
The AJ erred when she determined that there were no genuine issues of
material fact in dispute. The following are genuine issues of material
fact that are in dispute, as to issue one:
whether complainant established a prima facie case of race discrimination;
whether the Vacancy Announcement PF-98-102 lists four mandatory
requirements, and if so, whether complainant met those requirements;
whether the Regional Chief Counsel (R1) had the authority to exclude
individuals from the best qualified list once they had been placed there
by the reviewing committee; and,
whether complainant's named comparators, who also did not meet a mandatory
requirement, were treated more favorably than complainant.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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.
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).
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 in this case.
We find, to the contrary, that there are genuine issues of material
fact as to each of the three issues. In finding no discrimination,
as to issue one, the AJ concurred with the agency's argument that
complainant failed to establish a prima facie case of race discrimination.
The AJ explains that an individual, not in complainant's protected
class who also failed to meet a mandatory requirement was also not
selected for an interview, which is �evidence that the decision
to preclude the Complainant from an interview was not based on his
race.� See AJ's Decision, at 5. However, complainant contends that
two individuals, not in complainant's protected classes, also failed
to meet a mandatory requirement, but were nevertheless selected for
interviews. The agency argues that complainant still fails to make a
prima facie case because neither of those comparators were ultimately
selected, and �in the final analysis� they received the same treatment
as complainant. See Agency's Motion for a Decision Without a Hearing
(�Agency's Motion�) at 9. Complainant disagrees, pointing out that the
comparators, unlike himself, were given preferential treatment in the
determination of their qualifications, and were afforded the opportunity
to compete for the position at issue. We find that the questions of 1)
whether the comparators were similarly-situated to complainant, and 2)
whether they received preferential treatment as compared to complainant,
are genuine issues of material fact in dispute. We note that the fact
that individuals, not in complainant's protected class, were also not
selected for an interview because of their failure to meet a mandatory
requirement, does not preclude complainant from establishing a prima
facie case of discrimination. See Howard v. Postmaster General, EEOC
Request No. 05940292 (February 9, 1995). Complainant also contends
that, in fact, he did meet all mandatory requirements despite R1's
statement to the contrary. Specifically, complainant contends that
his past effective representation of the agency in EEO matters, and
his responsibility one year for the hiring of summer law students,
indicate his demonstrated commitment to EEO matters. Because R1 denies
that complainant satisfied the requirement, and states that this was
the primary reason she did not select complainant for an interview,
this also constitutes a genuine issue of material fact in dispute.
We find that issue two was not properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1). There are genuine issues of material fact in dispute, as
to issue two. D1 states that shortly after the opportunity was announced,
he asked complainant whether he was interested and complainant indicated
he was not. See ROI, Ex. 9, at 2. Complainant disputes this contention,
stating that only after an individual was already selected for the
position was he asked whether he wished to serve in this position at a
later date, and he refused. ROI, Ex. 6, at 2. In addition, the ultimate
question of whether the agency's reason is pretextual is a genuine issue
of material fact in dispute.
As to issue three, R1 states that complainant was not invited to the
training because she invited only those GS-14 attorneys serving in
a leadership capacity. ROI, Ex. 8, at 2. R1 also states that three
other GS-14 attorneys were not invited to attend the training. Id.
Complainant argues that this explanation is pretextual, and he contends
that he was the only senior GS-14 level attorney who was not invited
to the training, and he notes that he is the only Asian GS-14 attorney.
ROI, Ex. 6 at 3. Therefore, there are genuine issues of material fact
in dispute as to issue three.
We note that 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, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(d) and (e). �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). In summary, there are simply too many
unresolved issues which require an assessment as to the credibility of
the various management officials, co-workers, and complainant, himself.
Therefore, judgment as a matter of law for the agency should not have
been granted.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action, and remands the matter to the agency in accordance
with this decision and the Order below.<3>
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
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 (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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2002
__________________
Date
1 The record indicates that the complaints were subsequently consolidated.
2 The record reveals that, during a pre-hearing conference, the AJ
disclosed to the parties that she personally knew one of the proposed
witnesses in the case. The agency contends that the AJ asked whether
either party had an issue with her hearing the case, and both parties
stated that they had no objection. See Agency Brief in Response to
Complainant's Appeal, at 6.
3 We note additionally, that if complainant remains concerned about a
potential conflict of interest on the part of the AJ due to her personal
knowledge of one of the proposed witnesses, he may ask on remand that
the AJ recuse herself from this case. We find complainant's remaining
contentions regarding the AJ to be completely without merit.