01A33150
08-05-2004
Phillip M. Hata, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Phillip M. Hata v. Department of Transportation
01A33150
August 5, 2004
.
Phillip M. Hata,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A33150
Agency No. DOT-6-98-6107
Hearing No. 350-A0-8126X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaints 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
REVERSES and REMANDS the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Air Traffic Control Specialist, FG-2152-14,
at the agency's Honolulu Combined En Route Radar Approach Control (CERAP)
facility in Hawaii. Complainant sought EEO counseling and subsequently
filed a formal complaint, alleging that he was discriminated against on
the bases of
race (Asian Pacific Islander) and national origin (New Zealand Pacific
Islander), in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., when:
He was not selected for the position of Supervisory Air Traffic Control
Specialist, under Vacancy Announcement Number ANM-AT-98-PCS-24867
located in Pasco, Washington, Northwest Mountain Region, on March 12,
1998, and when the announcement was cancelled.
Complainant filed a second formal complaint alleging that he was
discriminated against on the bases of race/color (Asian Pacific
Islander/Maori) and national origin, as well as in reprisal for having
contacted an EEO Counselor regarding matters raised in the first
complaint, when:
On or about September 30, 1998, he was not selected to a Supervisory
Traffic Management Coordinator position at the Southern California
TRACON under Vacancy Announcement Number AWP-AT-97-14CAJP-24347; and,
On or about July 7, 1997, and September 9, 1997, he was not selected
for a Supervisory Air Traffic Control Specialist position in Tucson,
Arizona under Vacancy Announcement Number AWP-AT-97-14CAE-16503.<2>
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination. The AJ did not provide any of his own
analysis of the issues presented; rather, he adopted the agency's May
9, 2001, Motion to Dismiss, or in the Alternative, To Sever Issue; the
agency's August 21, 2000 Opposition to [Complainant's] Motion for Summary
Judgement; and the agency's August 15, 2001, Motion for Summary Judgment.
The AJ adopted the agency's recitation of the undisputed material facts
and the agency's legal analysis, and issued a decision without a hearing,
pursuant to 29 C.F.R. � 1614.109(g). The agency's final order implemented
the AJ's decision and found no discrimination.
On appeal, complainant contends, first, that after his case had been
with an AJ at the EEOC Phoenix District Office for three years, it
was transferred to an AJ at the EEOC San Francisco District Office,
and that seven days after the transfer, the AJ issued the decision
without a hearing without issuing a notice of intent to issue a decision
without a hearing. Second, complainant claims that in the Commission's
decision in Hata v. Department of Transportation, EEOC Appeal No. 01996360
(November 20, 2001), the Commission stated that the instant individual
complaint would be subsumed in the class complaint, and that any future
change in this disposition would by determined by the AJ on remand.
Complainant contends that he was waiting for an AJ to be assigned to his
class complaint so that he could hire a new attorney to represent him
in both cases. Third, complainant claims that the first AJ advised the
parties that he was going to sever claim 1 from the rest of the case,
but the second AJ does not mention this severance in his decision.
Complainant claims that other motions were ignored by the second AJ
as well. Fourth, he contends that the AJ's decision without a hearing
did not address the reprisal portion of the complaint; specifically, the
agency's proffered reason for cancelling the selection pending Permanent
Change of Station (PCS) funds, which applied to the Southern California
non-selection. Complainant disputes that PCS funds were required for
his selection to the position and that the selecting official never
informed him that his selection was contingent on obtaining PCS funds.
Complainant contends that the agency's explanation that obtaining PCS
funds was necessary prior to selection was a pretext for reprisal.
Complainant argues that the second AJ did not have all of the relevant
facts prior to issuing his decision without a hearing on March 31, 2003,
and that the affidavits reveal that there are issues as to witness
credibility that need to be examined at a hearing. The agency has
submitted no response to complainant's contentions on appeal.
Pursuant to 29 C.F.R. � 1614.405(a), the Commission reviews decisions
without a hearing under a de novo standard. 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, a decision without a hearing is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing 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 filing his individual complaint, DOT-98-6107, on July 6, 1998,
complainant filed a class complaint, in which he alleged that the agency
only issues vacancy announcements in cities with a predominately white
population, thereby having a disparate impact against people of his
race (Maori), color (brown), and national origin (Pacific Islands).
Regarding complainant's contentions on appeal, in the Commission's
decision in Appeal No. 01996360, the Commission did advise complainant
that his individual complaint was subsumed in the class complaint,
and that any future change in that disposition would be determined by
the AJ on remand. Hata v. Department of Transportation, EEOC Appeal
No. 01996360 (November 20, 2001). However, the AJ to whom the class
complaint was remanded, dismissed the class complaint for failure to
meet the numerosity requirement, on November 22, 2002. A final agency
order implementing the AJ's dismissal of the class complaint was issued
on November 26, 2002. There is no record of an appeal from complainant
regarding this final order. Additionally, as the AJ has issued a decision
without a hearing with regard to complainant's individual complaint, and
a final order has been issued by the agency, we find that this appeal
is now ripe for adjudication. We find that complainant's failure to
retain an attorney to represent him in his individual complaint has no
bearing on our decision. While complainant is permitted to retain an
attorney or a non-attorney representative, such representation is not
required in the federal sector process.
In Petty v. Department of Defense, the Commission determined that the
AJ should not issue a decision without a hearing in favor of one party
until he or she ensures that the following four criteria are met:
(1) the AJ must be certain that the investigative record has been
adequately developed; (2) there are no genuine issues of material fact;
(3) the AJ may not issue a decision without a hearing if he or she
was to find facts first to do so; and, (4) the AJ must ensure that the
party opposing the ruling is given (a) ample notice of the proposal to
issue a decision without a hearing; (b) a comprehensive statement of
the allegedly undisputed material facts; (c) the opportunity to respond
to such a statement; and, (d) the chance to engage in discovery before
responding, if necessary. If, as in the instant case, a party makes
a motion for a decision without a hearing, the AJ should ensure that
the motion is served on the opposing party and contains a list of the
undisputed material facts.
In the instant case, the agency filed a Motion for Summary Judgment
on August 15, 2001. Complainant responded to the agency's motion on
September 4, 2001. The motion contained a statement of undisputed facts.
Clearly, complainant had notice that a decision without a hearing may be
issued, and responded to the notice. However, the AJ had an obligation
to ensure that the remaining criteria under Petty were met before denying
complainant's hearing request.
The record is unclear as to whether claim 1 was ever severed from the
rest of the complaint by the first AJ, as indicated by complainant.
The second AJ does not discuss this matter, but it appears that the
agency's Motion to Dismiss/Sever was adopted by the second AJ, and that
the issue was not severed, but instead dismissed in the second AJ's March
31, 2003 decision. Nevertheless, we find that the agency presented no
legal basis in its motion for the dismissal of this issue. A claim of
discriminatory non-selection is not appropriate for dismissal merely
because no selection is made where, as here, the complainant contends
that the initial announcement was cancelled for discriminatory reasons,
and after the bid was canceled, a selection was made and someone outside
of complainant's protected classes was selected for the position.
See Lall v. Department of the Navy, EEOC Request No. 05A00064 (April
24, 2000). Complainant's supervisor, who provided complainant with an
�outstanding recommendation,� testified via affidavit that it appeared
to him, following a phone call from the Assistant Air Traffic Manager
of the Spokane Air Traffic Hub (AATM), that the AATM was looking for
reasons to justify complainant's non-selection for the position. Thus,
this issue is inappropriate for dismissal.
Complainant also contends that the AJ's decision did not address the
reprisal portion of the second complaint. As discussed above, the
AJ's decision did not specifically address any of complainant's claims,
but rather, adopted the agency's motions. In its Motion for Summary
Judgment, the agency argued that complainant failed to establish a
prima facie case of discrimination on the basis of reprisal regarding
the Tucson non-selection. Presumably, when adopting all of the agency's
legal analyses, that conclusion was adopted by the AJ as well. In his
affidavit, complainant states that he first engaged in EEO activity
on December 12, 1997, when he contacted an EEO Counselor regarding the
Tucson non-selection. However, the selections occurred in July 1997,
and September 1997, prior to complainant engaging in EEO activity.
Therefore, as complainant had not otherwise engaged in prior EEO activity,
we find that it was properly determined that complainant was unable to
establish a prima facie case of discrimination on the basis of reprisal,
with respect to the Tucson non-selection.
Nevertheless, a decision without a hearing for the Tucson non-selection
was improper with regard to the bases of race and national origin. In his
November 10, 1999, affidavit, the selecting official could not remember
how the qualifications of the selectees exceeded those of complainant.
Yet, in his August 14, 2001 declaration, submitted with the agency's
Motion for Summary Judgment, the selecting official's memory becomes
lucid, and he clearly remembers that complainant was not among his
first three choices for the positions, and that the selectees were
better qualified. 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 7,
page 7-1; see also 29 C.F.R. � 1614.109(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). We find that the discrepancy in
the selecting official's statements calls his credibility into question,
and that a hearing is the appropriate means by which his credibility
may be challenged by complainant.
The Southern California non-selection occurred after complainant had
engaged in EEO activity, and complainant is correct in that his claim
of reprisal for the Southern California non-selection was addressed
neither in the agency's motions, nor by the AJ. Complainant and
another individual were the two selectees, but according to the agency,
complainant's official selection was contingent on receiving PCS funding.
In its Motion for Summary Judgment, the agency states that complainant
was not selected for the position because PCS funding was not available;
however, there appears to be a genuine dispute as to whether PCS funds
were required for complainant to have been selected for the position,
or whether the reason was a pretext for unlawful discrimination.
We note that in complainant's supervisor's affidavit, the investigator
erroneously refers to the PCS funding requirement as pertaining to
the Tucson selection, whereas the agency articulated the lack of PCS
funding to be the reason for complainant' non-selection to the Southern
California position. Nevertheless, we find such dispute among management
officials regarding whether the lack of PCS funding was the real reason
behind complainant's non-selection to be an issue that should be developed
at a hearing.
After a careful review of the record, we find that the AJ failed to meet
the Commission's standards for issuing a decision without a hearing, as
per 29 C.F.R. � 1614.109, and as articulated in Petty v. Department of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Despite the genuine
issues of material fact in dispute, the AJ found that the agency's
motions accurately set forth the relevant facts. This is a odds with
the law of summary judgment discussed above, where 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.
Yaccarino v. United States Postal Service, EEOC Appeal No. 01A05735 (April
4, 2001), req. for reconsideration denied, EEOC Request No. 05A10581
(September 6, 2001). Moreover, the AJ erred in his failure to provide
any legal analysis, apart from adopting that of the agency, indicating
how he concluded that complainant failed to prove that he was subjected
to discrimination on the bases of race, national origin or reprisal.
There are questions of credibility that need to be resolved through
the hearing process after appropriate discovery. With the exception of
complainant's claim of reprisal for the Tucson non-selection, judgment
as a matter of law for the agency should not have been granted.
Therefore, after a careful review of the record, including all arguments
submitted on appeal, and arguments and evidence not specifically discussed
in this decision, the Commission REVERSES the agency's final order and
REMANDS the matter to the Hearings Unit of the appropriate EEOC District
Office in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the San Francisco District
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 Hearings Unit of the San Francisco District
Office 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 of the San Francisco District Office.
Thereafter, the Administrative Judge in the San Francisco District Office
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:
August 5, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1Complaint (agency) numbers DOT-6-99-6019 and
DOT-6-98-6107 were consolidated for investigation by the agency, pursuant
to 29 C.F.R. � 1614.606, and are both referred to under complaint number
DOT-6-98-6107. We note, however, that complaint number DOT-6-99-6019, and
its corresponding EEO Counselor's report, have not been included in the
investigative file, and have not been otherwise included in the record.
According to complainant, complaint number DOT-6-99-6019 was filed in
December 1997. Complaint number DOT-98-6107 was filed on July 6, 1998.
2In complainant's September 4, 2001, Opposition to [the Agency's]
Motion for Summary Judgment, complainant argues that he claims reprisal
with respect to Tucson Vacancy Announcement AWP-AT-98-13CAE-30441,
not AWP-AT-97-14CAE-16503. This has not been addressed by the agency
or by the AJ. However, we note that complainant does not raise this
discrepancy again on appeal.