0120090983
06-18-2010
Roger C. Tudor, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Roger C. Tudor,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120090983
Hearing No. 450-2008-00193X
Agency No. EEODFS070888F
DECISION
On December 12, 2008, Complainant filed an appeal from the agency's
November 10, 2008 final order concerning his equal employment opportunity
(EEO) complaint alleging 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly determined that Complainant was not subjected
to unlawful discrimination as alleged.
3. Whether the AJ properly to dismissed claims (2) and (3) of
Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Special Agent with the Internal Revenue Service,
Criminal Investigations in Dallas, Texas. However, due to allegations of
misconduct, Complainant had been performing restricted duties as a Lead
Tech Agent for the previous 18 months. Complainant had prior EEO activity
related to an EEO complaint he filed on February 8, 2006.1 On June 26
2007, the Agency issued Complainant a notice of a proposed reduction of
pay and grade due to allegations of misconduct. Also on June 26, 2007,
the Agency denied Complainant's request to attend the National Technical
Investigations Association training (NATIA) training. This training was
for Tech Agents, and only one Tech Agent was sent to the training from
the Agency during the relevant time period. Complainant had previously
attended two NATIA conferences in 2006. The NATIA training conference
provided state of the art equipment and training relevant to the Tech
Agent position. Subsequently, the Agency sent Complainant a November 27,
2007, letter that indicated that he was to be demoted in grade and pay
effective December 9, 2007.
Complainant filed an EEO complaint alleging that he was discriminated
against on the basis reprisal for prior protected EEO activity when:
1. On June 26, 2007, the Agency denied him the opportunity to attend
NATIA training;
2. On June 26, 2007, the Agency issued him a letter of proposed adverse
action for demotion to a Investigative Analyst Position (GS-12); and
3. Effective December 9, 2007, the Agency demoted him from the position
of Supervisory Criminal Investigator to the position of Investigative
Analyst (GS 12).
Complainant initially filed a Formal Complaint regarding claims (1)
and (2) on August 20, 2007. On January 23, 2008, Complainant amended
his complaint to include claim (3). However, prior to amending his
complainant, on January 8, 2008, Complainant filed an appeal to the Merit
Systems Protection Board (MSPB)2 regarding claim (3). Subsequently, the
Agency issued a March 11, 2008 letter of Partial Dismissal to Complainant
in which it dismissed claims (2) and (3) on procedural grounds,3 but
accepted claim (1) for investigation.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an AJ. Complainant timely requested a hearing. The AJ
assigned to the case determined sua sponte that the complaint did not
warrant a hearing and over Complainant's objections, issued a decision
without a hearing on October 21, 2008. The Agency subsequently issued
a final order adopting the AJ's finding that Complainant failed to prove
that he was subjected to discrimination as alleged.
Regarding claim (1), the AJ found that the Agency demonstrated legitimate
nondiscriminatory reasons for actions. In particular, the AJ found that
the Agency did not approve Complainant's request to attend training
because he was on temporary assignment, and the Agency was contemplating
disciplining him. In this regard, the AJ noted that this would have
resulted in Complainant being reassigned to other duties for which the
training would not have been relevant. The AJ also found that Complainant
presented no evidence of pretext.
Also, the AJ dismissed claims (2) and (3) pursuant to 29 C.F.R. �
1614.107(a)(4) due to the fact that Complainant filed an appeal to the
MSPB.
CONTENTIONS ON APPEAL
Complainant has not submitted a brief on appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, 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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she 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
administrative judge 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). We find that
the AJ properly issued a decision without a hearing because Complainant
failed to show that a genuine issue of material fact or credibility
existed.
Claim (1)
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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).
Assuming arguendo that Complainant established a prima facie case of
discrimination based on retaliation, the Agency has articulated a
legitimate, nondiscriminatory explanation for its actions. Namely,
the Agency did not send Complainant to the NATIA training because
there was a likelihood that he would not be in the Lead Tech Agent
position after the training. The record reflects that the Agency was
contemplating disciplining Complainant at the time, which would have
resulted in Complainant being assigned to other duties not pertinent
to the training. Upon review, we concur with the AJ's determination
that Complainant failed to provide any evidence of pretext in the
record. Furthermore, we find that the record is devoid of any evidence
that the Agency's actions were motivated by discriminatory animus towards
Complainant's prior protected activity.
Claims (2) and (3)
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take
a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. Here, Complainant claimed discrimination
when he was issued a letter of proposed adverse action for demotion to
a lower position. The record clearly indicated that this notice was a
preliminary action to the personnel action of demotion. In general, when
a complaint is filed on a proposed action and the agency subsequently
proceeds with the action, the action is considered to have merged with
the proposal. Siegel v. Department of Veterans Affairs, EEOC Request
No. 05960568 (October 10, 1997); Charles v. Department of the Treasury,
EEOC Request No. 05910190 (February 25, 1991). As such, claim (2) merged
with claim (3) and became part of the demotion action.
Complainant filed a mixed case appeal with the MSPB regarding the demotion
action before he amended his EEO complaint. As a result the matter is
being adjudicated outside the EEO complaint process. An aggrieved person
may initially file a mixed case complaint with an agency or may file a
mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151,
but a person cannot file both. 29 C.F.R. � 1614.302(b). EEOC Regulation 29
C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint
where the Complainant has raised the matter in an appeal to the MSPB. The
record indicates that, on January 8, 2008, Complainant filed a MSPB appeal
with regard to the allegedly discriminatory demotion. The demotion is now
before the MSPB pursuant to 29 C.F.R. � 1614.302(b). Since Complainant
has elected to pursue the matter through the MSPB process, we concur
with the AJ that claims (2) and (3) should be dismissed.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue of
material fact is in dispute. Complainant also failed to present evidence
that any of the Agency's actions were motivated by discriminatory animus
towards his previous EEO activity. We discern no basis to disturb the
AJ's decision. Accordingly, after a careful review of the record, the
Agency's final order 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
___6/18/10_______________
Date
1 In his prior EEO complaint, Complainant alleged unlawful discrimination
based on his race and age.
2 MSPB Docket No. DA-0752-08-0172-1-1
3 The Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. �
1614.107(a)(4) on the grounds that he filed an appeal to the
MSPB. Regarding claim (3), the Agency found that his MSPB appeal predated
his January 23, 2008 amendment to his EEO complainant. Also, the Agency
found that claim (2) merged into claim (3).
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0120090983
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090983