01a00561
04-03-2000
Thomas H. Pate, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Thomas H. Pate, )
Complainant, )
) Appeal No. 01A00561
v. ) Agency No. 980240
) Hearing No. 100-99-7551X
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, 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.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein in whether the Administrative Judge (�AJ�),
in making the decision not to hold a hearing erred in finding that there
were no genuine issues of material fact.
BACKGROUND
At the time in question, complainant held the position of Acting Regional
Administrator, within the Department of Agriculture. Complainant,
a Caucasian male, age (DOB: 02-24-42), states that he timely applied
for two positions; FNS Regional Administrator, Chicago and FNS Regional
Administrator, Denver. Subsequently, complainant was not selected
for both position for which he applied. In his stead, for the Chicago
position, a younger, African American male was selected. Also, in his
stead, for the Denver position, a younger Caucasian male was selected.
Believing that he was the victim of discrimination, on October 2,
1997, complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that he timely applied for two
positions for which he was qualified for, but was not selected for either
of them.
Counseling failed, and on December 24, 1997, complainant filed a
formal complaint claiming that he was the victim of unlawful employment
discrimination on the bases of his age (forty and over), race (Caucasian),
gender (male) and reprisal (prior EEO activity). The formal complaint was
comprised of the matters for which complainant underwent EEO counseling,
discussed above.
Upon completion of the investigation, complainant requested a hearing
before an AJ. Prior to the hearing, the AJ determined that the present
complaint was ripe for Summary Judgment. The AJ found that there were no
genuine issues of material fact in dispute. Specifically, the AJ found
that the agency articulated non discriminatory reasons why they did not
select complainant and complainant failed to rebut the explanation proving
that it was pretextual. In the decision, the AJ makes specific reference
to the selecting official's statement that she did not select complainant
based on subjective factors surrounding complainant's interview and
a reference from R1 which the selecting official claimed to be poor
because complainant was referred to as having a lack of team building
skills and numerous employee complaints and grievances against him.
The agency upon receiving the AJ's recommended findings and conclusions,
decided to adopt the AJ' s decision and therefore, issued a FAD dismissing
complainant's complaint.
On appeal, complainant argues that the selecting officials statement
that R1 referred to him as having a lack of team building skills and
numerous employee complaints and grievances against him is erroneous.
To support this contention, complainant points directly to R1's affidavit
in the ROI. Therein, R1 specifically states, that he does not recall
any consultation on the above two selections and he does not believe
that the selecting official ever sought him out for consultation in
her decision to select for the three positions she filled at that time.
Moreover, R1's affidavit repeats several times that he was not involved
in the selection process for the above positions.
ANALYSIS AND FINDINGS
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,
complainant 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 determining whether to grant 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 judgment 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 in
concluding that there was no genuine issue of material fact in this
case. Here, complainant clearly establishes that part of the agency's
articulated reason is in direct contradiction. Specifically, the agency
here claims R1 stated that complainant lacks team building skills and
has had numerous complaints and grievances filed against him. However,
R1's affidavit in the ROI states, that he does not recall any consultation
on the above two selections and he does not believe that the selecting
official ever sought him out for consultation in her decision to select
for the three positions she filled at that time. Moreover, R1's affidavit
repeats several times that he was not involved in the selection process
for the above positions. In finding no discrimination, and that the
present complaint was ripe for summary judgment, the AJ credited the
selecting officials explanation, despite R1's own affidavit.
While the Commission makes no judgment about the veracity of the
statements made by the selecting official or that of R1, this is
precisely the type of evidence that is appropriate for cross-examination,
elaboration and credibility determinations. The factual aspects of this
case are disputed and in conflict. 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 6, page 6-1; see also 64 Fed. Reg 37,644, 37,657 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �� 1614.109(c) and (d)).
�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). Accordingly,
the Commission finds that the AJ erred in issuing Summary Judgment and
the FAD which adopted the AJ's decision must be reversed.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
agency's final decision and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
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 (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
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 (Z1199)
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:
April 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.