0120065274
02-25-2009
Patrick Bryant, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Patrick Bryant,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01200652741
Hearing No. 520-2006-00067X
Agency No. 04-3083, 05-2439
DECISION
Complainant filed an appeal with this Commission from the August 16,
2006 decision of the agency which implemented the July 27, 2006 decision
of the EEOC Administrative Judge (AJ) who found no discrimination.
In his two consolidated complaints, complainant alleged that the agency
discriminated against him in reprisal for prior EEO activity when:
(1) complainant was not selected for the positions of Internal Revenue
Agent GS 512-13 (a) on October 18, 2003, under Vacancy Announcement (VA)
No. 50-52-MAN-03-175 and VA No. 50-52-MAN-03-178; (b) on March 10, 2004,
under VA No. LMB-4G672; (c) on March 13, 2004, under VA No. LMB-4G637;
(d) in April 2004, under VA No. SBB-MAN-04-014; and (2) on April 27,
2005 and June 10, 2005, management denied complainant's requests for
administrative time to process his discrimination complaint.
At the conclusion of the investigation, complainant was provided with
copies of the reports of investigation and complainant requested a
hearing before an AJ. The AJ issued a Notice of Intent to Issue a
Decision without a Hearing (summary judgment), dated April 11, 2006.
Responses were due within 15 days of receipt. The agency submitted
its response by facsimile and first class mail on April 28, 2006.
Complainant's response was dated May 9, 2006. The AJ issued summary
judgment in favor of the agency and, also, found that the agency's denial
of official time to complainant was not unreasonable.
The AJ found that complainant failed to establish a prima facie case
of reprisal because the alleged adverse treatment did not follow
complainant's protected activity such that reprisal could be inferred.
Regarding the nonselections, the AJ found that complainant did not make
the best qualified list (BQL) for any of the five vacancy announcements
and because he did not make the BQL, he could not have been selected
by the selecting official. The AJ also found that complainant had not
shown that his qualifications were so superior to the selectees so as
to demonstrate pretext.
Regarding VA No. 50-52-MAN-03-175, the AJ noted that the vacancy
announcement was issued on April 28, 2003, and it announced four vacant
positions for which complainant applied in June 2003. The AJ noted also
that three ranking panel members ranked the applications, none of whom
was aware of complainant's prior EEO activity. To make the BQL, a score
of 50.00 was required. Because complainant received a ranking score
of 46.00, he did not make the BQL. The AJ noted further that ranking
was based on the candidate's performance evaluation and the application.
Forty percent was the weight given to a candidate's current performance
evaluation and 60 percent was the weight given to scores assigned to
a candidate's potential to perform the "Critical Job Elements" of the
position. The AJ noted that one of the 12 candidates placed on the BQL
had prior EEO activity.
Regarding VA No. 50-52-MAN-03-0178, the AJ noted that the same
panel members ranked the candidates for this vacancy as had ranked
the candidates in VA No. 50-52-MAN-03-175. The AJ noted that because
complainant received a ranking score of 46.00 which was below the required
score of 50.00, he did not make the BQL.
Regarding VA No. LMB-4G672, the AJ noted that three ranking members
ranked the candidates and complainant received a ranking score of 43.40
which was below the required score of 46.20 for placement on the BQL.
The AJ noted that there was no evidence that the ranking members had
any knowledge of complainant's prior EEO activity and, also, that two
candidates who made the BQL had prior EEO activity.
Regarding VA No. LMB-4G637, the AJ noted that although complainant did
not make the BQL, no selection was made from the promotion package to
fill the position.
Regarding VA No. SBB-MAN-04-014, the AJ noted that three ranking members
ranked the candidates and that complainant did not make the BQL which
required a score of 46.00. The AJ also noted that there was no evidence
that the ranking members knew of complainant's prior EEO activity.
The AJ also noted that two of the five candidates who made the BQL had
prior EEO activity.
Concerning complainant's claim that he was denied use of official
time to process his EEO complaint on April 27, 2005 and June 10,
2005, the AJ concluded that the denial of official time in April 2005,
pending the return of the Manager five days later, was not unreasonable.
Regarding complainant's June 2005 request, the AJ found that one hour was
reasonable, taking into consideration whether the complaint was complex
and noting that complainant was familiar with the EEO process, having
filed prior complaints. The AJ noted that complainant had requested
three hours to read his Notice of Right to File, complete his complaint
form, perform research, complete an EEO survey and mail his complaint.
The AJ noted further that the Manager had stated that only one hour was
needed to complete the complaint and completing the survey was optional.
The AJ found that although complainant did not receive the amount of time
requested, the reduced time granted did not adversely affect complainant's
ability to present his case.
On appeal, complainant asserts that regarding the nonselections, the
AJ failed to consider his numerous submissions and exhibits detailing
material facts not contained in the investigative files. He asserts
further that other employees who had outstanding ratings received
the same rating of 46 that he did but those employees made the BQL.
He also asserts that the investigator failed to include similarly situated
employees in his work group. Complainant also asserts that the AJ failed
to decide his motion to compel discovery.
Regarding his official time claim, complainant similarly asserts that
the AJ failed to review his numerous submissions with attached exhibits.
Complainant also noted a conflict of interest between the Manager and
the agency attorney and asserts that the agency's failure to follow its
own rules regarding official time negatively impacted him.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
An AJ should not rule in favor of one party without holding a hearing
unless the AJ 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 AJ 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).
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. In
such cases, the inquiry shifts from whether complainant has established a
prima facie case and proceeds to the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez
v. Department of Transportation, EEOC Request No. 05900159 (June 28,
1990).
Because this is an appeal from a decision issued without a hearing,
the agency's decision is subject to a de novo review by the Commission.
See 29 C.F.R. � 1614.405(a). Upon review, the Commission finds that the
AJ's grant of summary judgment was proper because no genuine issues of
material fact exist. Specifically, the Commission finds that the there
were no genuine issues of material fact; that the investigative record
was adequately developed; and there were no findings of fact made by
weighing conflicting evidence or assessing witness credibility.
As an initial matter, the Commission addresses complainant's
allegations regarding his submissions to the AJ and his motion to
compel discovery. Concerning complainant's claim regarding the AJ's
alleged failure to review all of his submissions, complainant has
presented no evidence to support his unfounded assertion, other than
his conclusionary statements. The Commission notes that complainant
filed numerous and lengthy submissions accompanied by numerous exhibits,
some of which were not relevant or material to the outcome of the case
and others of which were repetitive and cumulative. The AJ's failure
to rule in complainant's favor does not lead to the conclusion that the
AJ had not read all of complainant's submissions or that the AJ had not
read documents which were relevant and material to the outcome.
Complainant also asserts that the AJ failed to rule on his motion to
compel discovery. The record reveals that in the AJ's February 14, 2006
Acknowledgment and Order (A/O), the AJ advised the parties that discovery
was to be initiated within 20 days of receipt of the A/O; motions to
compel discovery were to be filed within 10 days after discovery responses
were due; and discovery was to have been completed within 90 days of each
party's receipt of the A/O. The A/O also informed the parties that the AJ
may determine that the party who failed to submit timely discovery waived
the right to pursue discovery. Complainant stated that he received the
A/O on February 23, 2006. The record reveals that complainant did not
initiate discovery until about June 15, 2006, which was after the time
for initiating discovery and after the time for completing discovery
had passed. Complainant's discovery request also was not made until
almost two months following the AJ's April 11, 2006 notice of intent to
issue summary judgment. The Commission finds that although the AJ did
not specifically rule on complainant's motion, we do not find that the
AJ failed to consider complainant's motion in light of the statement in
the A/O concerning waiver for failure to conduct discovery. Further,
complainant did not initiate discovery as ordered in the A/O and thus
his request for discovery was untimely.
The Commission next addresses the merits of complainant's claims
and finds that complainant failed to establish a prima facie case of
reprisal regarding the nonselections. The Commission finds no evidence
that the ranking officials knew of complainant's prior EEO activity.
Even if the ranking officials did know, complainant has not established
a causal link between his failure to make the BQL and his having engaged
in EEO activity.
Assuming arguendo that complainant has established a prima facie case,
the Commission concludes that the agency has articulated legitimate,
nondiscriminatory reasons for its actions in not selecting complainant.
Complainant has not shown that the agency's actions in not selecting
him were pretextual. The record demonstrates that complainant failed
to make the BQLs for any of the positions because he did not receive a
high enough ranking to be selected. The record reveals that ratings
were based on performance appraisals and a candidate's ability to
perform the Critical Job Elements of the positions to be filled.
Appraisals were weighed at 40 percent and performance potential was
weighed at 60 percent. The record shows that all of the candidates who
made the BQL had a higher performance appraisal score than complainant
with the exception of two candidates who had the same score. However,
each ranking panel also rated each BQL candidate higher than complainant.
The record does not support a finding that complainant's failure to make
the BQL was motivated by discriminatory animus.
EEOC Regulation 29 C.F.R � 1614.605(a) provides "[a]t any stage in
the processing of a complaint, including the counseling stage under
� 1614.105, the complainant shall have the right to be accompanied,
represented, and advised by a representative of complainant's choice." In
addition, complainant and complainant's representative "shall have a
reasonable amount of official time, if otherwise on duty, to prepare
the complaint and respond to agency and EEOC requests for information."
29 C.F.R. � 1616.605(b).
The Commission has stated that an allegation pertaining to the denial of
official time states a separately processable claim alleging a violation
of the Commission's regulations, without requiring a determination
of whether the action was motivated by discrimination. See Edwards
v. U.S. Postal Service, EEOC Request No. 05960179 (December 23, 1996).
The Commission has held that it has the authority to remedy a violation
of 29 C.F.R. � 1614.605 without a finding of discrimination. Id.
The Commission has also held that such a claim should not be processed
in accordance with 29 C.F.R. � 1614.108, since the focus is not on the
motivation, but rather the justification why the complainant was denied
a reasonable amount of official time. Id. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (MD-110), 6-16 (November 9,
1999) states that the Commission considers it reasonable for agencies
to expect their employees to spend most of their time doing the work for
which they are employed. The remedy for improper denial of official time
is for the agency to restore such personal leave as complainant may have
used in lieu of being granted official time. See MD-110 at 5-27.
Regarding complainant's request for official time, the Commission
agrees, under the circumstances of this case, that the agency's denial
of complainant's April 2005 request and the agency's approval of only
one hour for complainant's June 2005 request were reasonable.
The record reveals that complainant sent an electronic mail request on
Tuesday, April 26, 2005, asking for 16 hours of official time to file an
appeal of an agency decision with the Commission. In an electronic mail,
dated April 27, 2005, complainant's request was denied until the return of
the Manager on Monday, May 2, 2005, pursuant to the Manager's instruction
to the Acting Manager. Complainant's affidavit reflects that he needed
the time to review and then file with the Commission documentation based
on AJ's Orders, postmarked March 14, and March 15, 2005. Complainant also
indicated that he needed to review 29 C.F.R. � 1614.403 and other sections
and EEOC Management Directive-110. Complainant stated that he had to
spend 16 hours of his own time over the weekend to work on the appeal.
We find that the denial of the April request was reasonable under the
circumstances of the case. Complainant did not indicate that time was
of the essence such that he could not await the Manager's return on
May 2, 2005. Further, the record reveals that the AJ's orders were
dated in March 2005, and it was not until near the end of April that
complainant requested official time. In addition, the matter was not
raised by complainant or the Manager upon the Manager's return and this
was likely because complainant had completed the work during the weekend.
Moreover, the Commission recognizes that the filing of an appeal form
to preserve complainant's appeal rights would have taken less than an
hour and complainant would have had 30 days from the date of the filing
of his appeal to file a brief in support of his appeal. There is no
doubt that complainant was entitled to some amount of official time
to prepare his appeal. However, nothing submitted by complainant to
the agency at the time of his request or to the Commission on appeal,
provides justification, under the circumstances of this case, for the
need for 16 hours.
Regarding the June 10, 2005 request, the record reveals that complainant
requested three hours of official time in Agency No. 05-2439 to read the
Notice of Right to File documents; complete a 2-page complaint form;
research/review 29 C.F.R. Part 1614 and material subsections; review
laws on conflict of interest, tailor a 2-page statement explaining his
complaint; complete and mail a two-page EEO Pre-Complaint Customer
Satisfaction Survey to the IRS Measurement Team; drive to the post
office to mail complaint certified. The record reveals that only one
of the three hours requested was approved by the Manager. The record
reveals further that the Manager approved only one hour based on his
prior experience with the issues and his consultation with an attorney
in General Legal Services. The record also reveals that the Labor
Relations Specialist stated that because complainant had a history of
using an excessive amount of time on EEO matters, having used 240 hours
of official time between March and September 2002, the Manager had been
advised to consult with Labor Relations or General Legal Services when he
believed complainant's requests for official time might be unreasonable.
Complainant has also asserted that there existed a conflict of interest
because the agency attorney who provided the Manager information
on deciding on the amount of official time to approve was the same
attorney who had represented the agency in other EEO complaints filed by
complainant. The Commission has stated: "Agencies must avoid conflicts
of position or conflicts of interest as well as the appearance of such
conflicts." MD-110 at 1-2. A careful review of the record reveals no
actual prejudice to complainant in this case because an agency attorney
who represented the agency during litigation in other complaints filed by
complainant provided legal advice to the Manager regarding official time.
Moreover, there is also no actual prejudice because the Commission has
undertaken an independent review of the claim of improper denial of
official time. The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 25, 2009
__________________
Date
1This appeal has been re-designated with the above-referenced appeal
number.
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0120065274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013