0120110987
05-12-2011
Thomas P. Oscar, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Thomas P. Oscar,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120110987
Hearing No. 531-2010-00054X
Agency No. ARS-2009-00372
DECISION
On November 22, 2010, Complainant filed an appeal from the Agency’s
November 4, 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. 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 Research Food Technologist, GS-14, with the Agency’s Agricultural
Research Service (ARS) at the Agency’s work facility in Princess Anne,
Maryland at the University of Maryland, Eastern Shore (UMES).
On March 24, 2009, Complainant filed an EEO complaint wherein he claimed
that the Agency discriminated against him on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when on December 10, 2008:
1. Complainant was excluded from the research project with the Food
Safety and Inspection Service, Microbiology Division (FSIS).
2. Complainant was denied additional resources to conduct his
research project.
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 Motion for a Decision Without
a Hearing and issued a decision without a hearing on August 31, 2010.
Initially, the AJ denied the Agency’s Motion to Dismiss on the grounds
of untimely EEO Counselor contact. AJ’s Decision at 2. The AJ
found that since the Agency continued to discuss funding the project at
issue until January 2009, it was not unreasonable for Complainant to
delay his EEO contact until January 9, 2009. Id. The AJ found that
the Agency did not commit reprisal against Complainant with regard to
each of the aforestated claims. Id. at 6. The record reveals that
on December 14, 2007, the FSIS requested that the ARS conduct research
on poultry carcass mapping. Id. at 4. The AJ noted that this request
indicated that Complainant would be afforded the opportunity to conduct
the research at UMES. Id. However, Complainant was informed by the
National Program Leader of the ARS National Program Staff that ARS lacked
funding to support the project and FSIS did not have a large budget. Id.
Nonetheless, Complainant requested from the Area Director of the ARS North
Atlantic Area additional full-time and permanent personnel and a funding
increase of $480,000, which was subsequently reduced to $380,000. Id.
Complainant explained this could be accomplished by realigning vacant
positions under his supervision. Id. Complainant also sought the
creation of a research unit (the Delmarva Food Safety Research Unit)
of which he would be the leader. Id.
The Area Director informed Complainant that the funding was not available
in the budget to implement his proposals. Id. On April 18, 2008,
the National Program Leader informed Complainant that FSIS would only
provide $40,000 per year for approximately two to three years toward the
carcass mapping research. Id. Complainant responded by rejecting the
offer, noting that he did not believe that a $40,000 investment would
be worthwhile. Id. The AJ stated that Complainant subsequently refused
to be involved with the project as resources were to be utilized from
the ARS facility in Athens, Georgia. Id. The AJ noted that the carcass
mapping research was not undertaken by FSIS or ARS. Id.
The AJ found that Complainant established a prima facie case of
reprisal. Id. at 5. The AJ stated that the Area Director and the
National Program Leader were responsible officials in Complainant’s
prior EEO complaints and they rejected his carcass mapping research
proposal while his complaints were pending. Id. The AJ further found
that the Agency articulated a legitimate, nondiscriminatory reason for
its actions and that Complainant failed to show the reason is a pretext
for discrimination. Id. According to the AJ, Complainant’s proposals
were not budgeted initially as a result of an $80,000,000 ARS federal
budget cut in February 2008. Id. The AJ noted that early in the
discussions regarding the project, Complainant rejected an alternative
proposal to proceed with the research. Id. at 6. The AJ stated that
other scientists at GSIS and ARS continued to have discussions about
the project but it was never funded. Id.
The Agency subsequently issued a final order implementing the AJ’s
finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged.
On appeal, Complainant contends that he did not remove himself from the
research project. According to Complainant, he did not tell management
that the project should be moved to Athens and exclude him. Complainant
maintains that he told his supervisors there was no reason to include ARS
scientists in Athens. Further, Complainant argues in contrast to the
Agency’s position that resources were not available for the project,
that the National Program Leader informed him on February 21, 2008,
that the requested resources were available. Complainant states that
the carcass mapping project was halted in Athens in conjunction with
the processing of the instant complaint.
In response, the Agency asserts that after receiving the FSIS request,
the National Program Leader told Complainant that ARS did not have any
funds to support the project and that FSIS would have to provide the
funding. Agency Response at 7. The Agency maintains that Complainant
was more interested in obtaining funding and additional personnel for
his own unrelated projects as opposed to the chicken carcass mapping
research project. Id. at 8. The Agency notes that Complainant had
stated that in order to fund his proposal, the Agency had to provide
$480,000 and take two positions currently not located at UMES and
transfer these positions to UMES and place them under his supervision.
Id. at 9. The Agency states that Complainant later adjusted his proposal
to $380,000 worth of funding for the transfer of the vacant vice-Bayles
position to UMES, an additional transfer of $100,000 to UMES, and the
creation of an entirely new research project with Complainant as the
research leader. Id. at 10. According to the Agency, Complainant’s
proposal could not be implemented because ARS and the North Atlantic
Area were operating on a flat budget and eliminating positions as they
became vacant. Id. at 11. The Agency states that the ARS budget was
reduced by $80,000,000 in the budget released in February 2008. Id.
The Agency notes that two positions in the North Atlantic Area were
slated to be eliminated and one of those was the vice-Bayles position
that Complainant sought to have realigned to UMES. Id.
The Agency asserts that Complainant rejected alternative proposals to
move forward with the research project. Id. at 25. The Agency notes
that on April 18, 2010, the National Program Leader informed Complainant
that FSIS was willing to commit a maximum of approximately $40,000 per
year for 2-3 years to the carcass mapping research. Id. The Agency
maintains that Complainant rejected the opportunity to conduct the carcass
mapping research. Id. at 26. The Agency notes that Complainant stated
on April 18, 2008, that it would be a waste of the taxpayers’ money
without full support from ARS. Id. The Agency further points out that
Complainant admitted that he never told anyone that he would be willing
to do the project for the $40,000 allotted by FSIS. Id. According to
the Agency, it attempted to reduce Complainant’s costs to fit within
the FSIS budget and secure Complainant’s involvement. Id. at 26-27.
The Agency states that it proposed to have the chickens processed at
Athens and shipped to Complainant for analysis. Id. at 27. The Agency
argues that Complainant admitted he did not want Athens involved in
the project because he had previously lost a major research project to
Athens, ARS’ poultry center. Id. Although other scientists at FSIS
and ARS continued to discuss the project, the Agency states that the
project was never funded. Id. at 29. The Agency states that the project
never moved beyond the planning stage and no funding was allocated for
the project. Id.
With regard to the arguments presented on appeal by Complainant, the
Agency asserts as to the alleged statement made by the National Program
Leader that resources were available that the National Program Leader
did not have authority to realign resources and both before and after
the alleged statement, he informed Complainant that ARS lacked funds to
contribute to the project. Id. at 30-31. The Agency maintains despite
Complainant’s argument to the contrary that Complainant refused to
utilize ARS resources from Athens and subsequently suggested to FSIS
that the project be transferred to Athens. Id. at 33. The Agency
asserts that in light of Complainant’s admissions it had legitimate
and nondiscriminatory reasons for rejecting Complainant’s proposals
to conduct the carcass mapping research. Id.
ANALYSIS AND FINDINGS
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).
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). Complainant
must initially 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 Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
We shall assume arguendo that Complainant established a prima facie case
of reprisal. The Agency stated that it decided to deny Complainant
additional resources to conduct the carcass mapping research project
and subsequently exclude him from the project for the following reasons.
The Agency explained that it had insufficient funding for the project.
ARS could not afford to provide funds after experiencing a substantial
budget reduction and FSIS would only contribute $40,000 per year for a
2-3 year period. Complainant was offered the opportunity to continue to
participate on the project in conjunction with the Athens facility but
Complainant rejected that option. We find that the Agency articulated
legitimate, nondiscriminatory reasons for the actions at issue.
Complainant attempts to establish pretext by challenging the Agency’s
position that it lacked sufficient resources to fund the carcass mapping
research project. According to Complainant, the National Program Leader
told him in February 2008, that the requested resources were available.
Even assuming arguendo that the National Program Leader uttered this
statement to Complainant, the record indicates that the National Program
Leader lacked the authority to realign resources and that he informed
Complainant in April 2008, that FSIS was willing to commit a maximum
of approximately $40,000 per year for 2-3 years to the carcass mapping
research. The record also does not support Complainant’s denial that
he lost interest in pursuing the project when the proposal was made to
include the Athens facility. Upon review of the record, we find that
Complainant has failed to establish that the Agency’s explanation for
its action was pretext intended to mask discriminatory intent.
CONCLUSION
The Agency’s determination in its final action that no reprisal
discrimination occurred is AFFIRMED.
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
May 12, 2011
__________________
Date
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0120110987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120110987