Ronald Cotton, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 22, 2009
0120080245 (E.E.O.C. Sep. 22, 2009)

0120080245

09-22-2009

Ronald Cotton, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Ronald Cotton,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120080245

Hearing No. 570-2007-00206X

Agency No. CRSD-CF-2006-02229

DECISION

On October 18, 2007, complainant filed an appeal1 from the agency's

October 5, 2007 final decision 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission affirms the agency's final

order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Lead Program and Management Analyst, GS-343-14, in the Analysis and

Resource Management Division, Office of Operations, at the U.S. Department

of Agriculture (USDA) in Washington, D.C.

The record reflects that in 2006, the agency held its First Annual

Civil Rights Conference. The conference was advertised generally

to agency Civil Rights Directors and Heads requesting funds for the

conference and allotting the number of slots for each agency. The Civil

Rights Directors were responsible for sending the names of conference

participants for their particular offices at their respective agencies.

Once the names were sent in they were added to a registrant's list,

and registration forms were sent to each participant to complete the

registration process. This process continued until the day before

the conference. Report of Investigation (ROI), Page 10; Counseling

Report, Page 4. The directors that followed protocol for the conference

registration registered hundreds of employees for the conference, many

of whom were African American. ROI, Page 8. On April 18, 2006, when

complainant went to the conference and attempted to register, his name

could not be found on the registration list. ROI, Page 6.

On July 14, 2006, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of race (African American) and

in reprisal for prior protected EEO activity under Title VII when he

was instructed to leave the Inn and Conference Center at the University

of Maryland in College Park, Maryland, on April 18, 2006, during his

attempt to register for the conference. ROI, Page 1. 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

EEOC Administrative Judge (AJ). Complainant timely requested a hearing.

Subsequently, the agency filed a Motion for Summary Judgment. When the

complainant did not object, the AJ assigned to the case granted the

agency's Motion in his September 20, 2007 decision without a hearing.

Specifically, the AJ found that there were no genuine issues of material

fact, and that the agency articulated a legitimate non-discriminatory

purpose for its challenged action which the complainant failed to rebut.

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.

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).

After a review of the record, we find that there are no genuine issues

of material facts or any credibility issues which required a hearing

and therefore the AJ's issuance of a decision without a hearing was

appropriate. The record has been adequately developed, complainant was

given notice of the agency's motion to issue a decision without a hearing,

he was given an opportunity to respond to the motion, he was given a

comprehensive statement of undisputed facts, and he had the opportunity

to engage in discovery. Although in his letter dated September 24, 2007,

complainant states that he did submit a reply directly to the agency,

in order for his reply to have been considered by the AJ when making his

decision, the complainant should have filed his response directly with

the AJ and provided the agency with a copy. Under these circumstances,

we find that the AJ's decision without a hearing was not inappropriate.

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). He

must generally establish a prima facie case by demonstrating that he

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). The prima facie inquiry

may be dispensed with when the agency articulates a legitimate and

nondiscriminatory reason for its conduct. See United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is

a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

Even considering the facts in the light most favorable to the complaint

and assuming, arguendo, that the complainant established a prima facie

case of race and reprisal discrimination, we find that the agency

articulated legitimate non-discriminatory reasons for complainant's

inability to attend the conference. A final registration list confirms

that the complainant was never properly registered for the conference.

Complainant's office director stated that he gave complainant his consent

to attend the conference, but that at the time he and complainant had

that conversation, he did not connect complainant's request with the

e-mail he had received about the conference; he took no further action.

ROI, Page 12.

Because we find that the agency provided a legitimate, nondiscriminatory

reason for not permitting the complainant to attend the conference, to

prevail, the complainant must prove, by a preponderance of the evidence,

that the agency's explanation is a pretext for discrimination. We find

that the complainant failed to do so. The complainant's sole argument

in support of his position is that he thought he had enrolled in the

conference based on an e-mail exchange which took place between him

and a representative from the Office of the Secretary at USDA, who

was incorrectly identified to him as the contact for the conference.

ROI, Page 6 and 11. Assuming, arguendo, that complainant thought

he was in contact with the right person, the office representative

nonetheless clarified the registration process for the conference in

her April 17, 2006 e-mail response to the complainant, by stating in

relevant part that the "invitation to the employee groups was to the

Employee Organization Roundtable on Wednesday, April 19th and the lunch

preceding it... [a]ttendance at CR Conference was determined by the

individual agencies. You must be registered by your agency to attend the

conference itself." Complaint File, Page 56. Therefore, we find that

the complainant failed to show by a preponderance of the evidence that

race or reprisal was a factor in his inability to attend the conference.

As a result, complainant failed to establish that the agency's explanation

was a pretext for discrimination.

CONCLUSION

Based on a thorough review of the record, including all the

statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order.

The Administrative Judge's decision without a hearing was appropriate and

a preponderance of the record evidence viewed in the light most favorable

to the complainant does not establish that discrimination occurred.

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

September 22, 2009

Date

1 In an attachment to his appeal, complainant requests that he be

permitted to return to mediation to resolve the two remaining issues

from his initial EEO complaint (the lump sum payment and one letter

of apology). Complainant also states that he responded to the agency

as requested, informing the agency that all but two of his requests

from his initial EEO complaint remain unresolved. At the time he filed

his appeal, complainant had not received any response from the agency,

and thus never completed mediation as requested.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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