0120071000
07-15-2009
Thomas Evans, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Thomas Evans,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071000
Hearing No. 410-2006-00003X
Agency No. HS-04-TSA-001176
DECISION
On December 12, 2006, complainant filed an appeal from the agency's
November 13, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
VACATES the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Federal Air Marshal at the agency's Atlanta, Georgia facility.
On November 10, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of disability (Adult Attention
Deficit Disorder) and in reprisal for prior protected EEO activity
when:
1. after having been removed from active flight status in May 2004,
due to a positive urinalysis and disclosure of his medical condition,
complainant was placed on administrative leave beginning on August 17,
2004, which resulted in the denial of a performance bonus and the removal
of his name from consideration for a premium assignment;
2. in May 2004, the agency denied complainant a reasonable
accommodation;
3. on December 6, 2004, complainant was indefinitely suspended
without pay after his access to classified information was suspended
pending an investigation into whether he provided false information on
his 2002 Report of Medical History.
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. The AJ assigned to the case determined, after
viewing the evidence in a light most favorable to complainant, that
a decision without a hearing was appropriate because there were no
genuine issues of material fact in dispute. The AJ issued a decision
without a hearing on September 26, 2006. Specifically, the AJ found
that complainant failed to establish a prima facie case of disability or
reprisal discrimination. The AJ also found that the agency's reliance
on information obtained during a pre-employment medical inquiry was not
an issue in the instant case because complainant is not covered under
the Rehabilitation Act. 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.
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing. Specifically, complainant argues that the AJ made
errors of law with respect to his finding that complainant failed to
establish a prima facie case of disability discrimination, and that
there are genuine issues of material fact which require a hearing.
In its response, the agency requests that we affirm its final order
adopting the AJ's decision finding no discrimination.
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 thorough review of the instant record, the Commission finds
that the AJ erred in issuing a decision without a hearing. Here, the
AJ found that complainant failed to establish a prima facie case of
disability discrimination because he failed to show that his impairment
substantially limited any major life activities. We note, however, that
under 29 C.F.R. � 1630.2(g) an individual with a disability is defined as
one who (1) has a physical or mental impairment that substantially limits
one or more major life activities, (2) has a record of such an impairment,
or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).
The record reflects that complainant has alleged that he both has a
record of a disability and that the agency regarded him as an individual
with a disability. The AJ failed to address either of these arguments,
and we find that the record is not sufficiently developed to determine
if the agency regarded complainant as an individual with a disability
or if complainant has a record of a disability.
We also find that, despite the AJ's findings to the contrary, the validity
of pre-employment disability-related questions and medical examinations
must always be analyzed to determine whether the agency's process is
in conformity with Rehabilitation Act obligations. See Enforcement
Guidance on Pre-employment Disability-Related Questions and Medical
Examinations (Oct. 10, 1995) (web version) (1995 Enforcement Guidance),
EEOC Notice No. 915.002, at 3. The agency is reminded that, under the
Rehabilitation Act, "an employer may ask disability-related questions
and require medical examinations of an applicant only after the applicant
has been given a conditional job offer." See 1995 Enforcement Guidance,
at 2; See also 29 C.F.R. � 1630.13(a); Nolan v. Department of the Army,
EEOC Appeal No. 01975113 (Nov. 1, 2000); see also McKinley v. Department
of the Army, EEOC Appeal No. 01933326 (September 8, 1994); aff'd on
reconsideration, EEOC Request No. 05950027 (December 8, 1995). Here,
we note that, contrary to the AJ's conclusion, the Rehabilitation Act's
prohibition against disability-related pre-employment questions applies
to all applicants, not simply applicants with disabilities. The record
clearly reflects that the agency's actions in removing complainant from
active flight status and indefinitely suspending him were directly related
to complainant's responses to a pre-employment Report of Medical History.
As such, the AJ must determine whether the agency was in violation
of the Rehabilitation Act when it required complainant to answer the
pre-employment disability-related questions at issue.1
Therefore, the Commission finds that the AJ erred in issuing a decision
without a hearing. In finding that a decision without a hearing was
not appropriate, we note that the hearing process is intended to be an
extension of the investigative process, designed to "ensure that the
parties have a fair and reasonable opportunity to explain and supplement
the record and to examine and cross-examine witnesses." See EEOC
Management Directive (MD) 110, as revised, November 9, 1999, Chapter 7,
page 7-1; see also 29 C.F.R. � 1614.109(e). "Truncation of this process,
while material facts are still in dispute and the credibility of witnesses
is still ripe for challenge, improperly deprives complainant 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, because there are material
facts in dispute, a decision without a hearing was not appropriate in
the instant case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the agency's
final order and REMAND the case for a hearing before an Administrative
Judge.
ORDER
The agency shall submit to the Hearings Unit of the Atlanta District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant 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. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
July 15, 2009
Date
1 We note that the Merit Systems Protection Board (MSPB) addressed the
issue of the agency's requirement that complainant submit a pre-employment
Report of Medical History in its decision regarding complainant's removal.
Specifically, the MSPB found that the Report of Medical History was
"prohibited to the extent that it would elicit disability-related
information from [complainant]," and therefore, found that complainant's
removal was not sustained. See Evans v. Department of Homeland Security,
MSPB Docket No. AT-0752-0844-I-1 (December 11, 2007).
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0120071000
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071000
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