0120110740
09-05-2012
Ronald W. Coby, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Ronald W. Coby,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120110740
Hearing No. 570-2009-00743X
Agency No. 09-NCR-WP-RWC-3
DECISION
On November 15, 2010, Complainant filed an appeal from the Agency's October 13, 2010, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to show that he was discriminated against as alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Administrative Judge (AJ) properly issued a decision without a hearing when Complainant alleged that he was discriminated against when he received a low performance appraisal and was subjected to harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Mechanical Engineer Technician, at the Agency's facility in Washington, DC. On December 4, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Light Complexion), disability (back injury and depression), and reprisal for prior protected EEO activity when he received a Level 3 annual performance appraisal on November 17, 2008, and when he was harassed from September 16, 2008 to September 26, 2008.1
At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 13, 2009, motion for a decision without a hearing and issued a decision without a hearing on September 15, 2010. The AJ found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the evidence showed that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency explained that Complainant's evaluation was based on his performance. It was noted that Complainant's rating was developed with input from his supervisor and two other supervisors who were familiar with Complainant's work. Management maintained that Complainant did not often exceed the performance expectations in the critical elements of project management and project development. Moreover, the Agency explained that a level three rating was not a poor performance rating, as the rating indicated that Complainant "Meets performance expectations." To show pretext, Complainant named three other white Mechanical Engineer Supervisors who he believed had received higher ratings than he did. The AJ noted however, that the record did not support Complainant's belief, and, secondly the comparators were not similarly situated to Complainant because they were rated by different supervisors. The AJ found that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant contends that he established a prima facie case of discrimination on the bases or race, color, disability and reprisal. He also maintains that because he did not receive a rating of four, he was denied a monetary award. Additionally, he argues that the level three rating will have a negative impact on his future employment opportunities for promotion and pay grade increases. Complainant contends that because he received a rating of four in three critical elements and received a favorable narrative with only positive comments, his rating should have been a Level 4 rating.
In response, the Agency included a brief which requests that the AJ's finding of no discrimination be affirmed.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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. Dep't of Def., 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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ properly issued a decision without a hearing as there are no material facts at issue. The Commission finds that even if we assume arguendo that Complainant established a prima facie case of reprisal, race, color, and disability discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant was rated a Level 3 based on his performance. Further, with respect to Complainant's contentions on appeal regarding being graded higher because he had also received ratings of four on several elements, the Agency explained that while it was true that Complainant was rated at level three in fifty percent of the critical element weights, and was rated at level four in the remaining critical elements; Agency policy provided that in such circumstances, an overall level three rating was to be assigned. The Commission finds that other than Complainant's conclusory statements, he has not presented any evidence which suggests that the Agency's actions were pretext for discrimination or that discriminatory animus was involved as the evidence shows that Complainant received very complementary comments in his performance appraisal narrative. The Commission hereby finds that Complainant has failed to demonstrate that he was subjected to discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order which found that Complainant failed to prove that he was discriminated against as he alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
___9/5/12_______________
Date
1 Complainant withdrew his harassment claim.
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0120110740
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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