Thomas H. Pate, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00561 (E.E.O.C. Apr. 3, 2000)

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.