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.