Ralph L. Rode, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01971870 (E.E.O.C. Jan. 29, 1999)

01971870

01-29-1999

Ralph L. Rode, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Ralph L. Rode v. Department of the Interior

01971870

January 29, 1999

Ralph L. Rode, )

Appellant, )

) Appeal No. 01971870

v. ) Agency No. FNP-94-142

) Hearing No. 370-96-X2452

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

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. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of

the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103,

105 (1st Cir. 1988). In the context of an administrative proceeding

under Title VII, summary judgment is appropriate if, after adequate

investigation, appellant has failed to establish the essential elements

of his or her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d

171, 173 (3d Cir. 1988). In response to a motion for summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

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 judgement 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.

In finding no discrimination, the AJ relied on the representations of

management officials as provided in their respective affidavits, while

discounting those of appellant, CW, and various inconsistencies in the

record. In this respect, the Commission notes that the "statistical

insignificance" of appellant having been promoted to an Assistant six

weeks later does not adequately explain why the agency did not select

him initially.<1> Additionally, the agency posted an announcement for two

additional positions just two business days after appellant had contacted

an EEO counselor with his allegations of discrimination. Moreover, and as

evidence that the agency may have hastily or haphazardly created a new job

vacancy announcement, the August 1, 1994, announcement was "clarified"

just three days later, on August 4, 1994, to indicate that the positions

were only open to permanent employees. The record contains no evidence

that appellant was selected from among a pool of qualified candidates.

Finally, the rationale for not selecting appellant for a Helper position,

namely, that a hiring freeze during the summer of 1994, may have precluded

him from being able to be rehired as a career employee, appears to be

contradicted by the May 27, 1994, memorandum which indicated that the

hiring freeze was lifted.<2>

We note that the hearing process is intended to be an extension of the

investigative process, designed to "ensur[e] that the parties have a

fair and reasonable opportunity to explain and supplement the record and

to examine and cross-examine witnesses." See the Commission's Management

Directive (MD-110), Chapter 6, page 6-1; see also 29 C.F.R. � 1614.109(b)

and (c). "Truncation of this process, while material facts are still in

dispute and the credibility of witnesses is still ripe for challenge,

improperly deprives appellant 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 appellant, himself. Therefore, judgment as

a matter of law for the agency should not have been granted as to issue

(1).

Concerning issue (2), while the agency has articulated legitimate,

non-discriminatory reasons for the denial of leave, the record contains no

documentary evidence to support S1's contention that he also denied leave

to C1 during the same time period. The veracity of S1's explanation, in

light of the unresolved questions concerning his previous non-selection,

remains at issue, and thus precludes judgment as a matter of law

respecting issue (2).<3>

Therefore, after a careful review of the record, including appellant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission REVERSES

the FAD and REMANDS the matter to the agency to take remedial actions

in accordance with this decision and the ORDER below.

ORDER (D1092)

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. � 1614.109 et seq. The agency shall acknowledge to the

appellant that it has received the remanded complaint within thirty

(30) calendar days of the date this decision becomes final and advise

appellant that it has requested the appointment of an EEOC AJ pursuant to

29 C.F.R. � 1614.109(a). The agency shall make every effort to expedite

the scheduling of a hearing on this matter.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision."

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant.

If the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The appellant 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. �� 1614.408,

1614.409, and 1614.503(g). Alternatively, the appellant 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. ��

1614.408 and 1614.409. 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)(Supp. V 1993). If the appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

Jan 29, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 In this respect, the Commission notes that allegations of prior

non-selections, while, as the AJ correctly noted in her RD, are not

germane to this complaint, should be considered as background information.

Furthermore, the circumstances surrounding appellant's initial hire to

the agency, as alluded to by CW, may need to be further explained and

considered when assessing the credibility of the agency's witnesses.

2 The Commission notes that as indicated by exhibit 14 of the

investigative file, appellant appears to be the oldest employee at the

agency's facility.

3 The Commission notes that our finding today does not preclude summary

judgment respecting issue (2), after the AJ has adequately supplemented

the record, provided that appellant presents no genuine issue of material

fact respecting the agency's explanation for the denial of annual

leave. See Long v. United States Postal Service, EEOC Appeal No. 01981597

(October 30, 1998) at n.5.