William D. Hogsten, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionApr 5, 2000
01a00208 (E.E.O.C. Apr. 5, 2000)

01a00208

04-05-2000

William D. Hogsten, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


William D. Hogsten, )

Complainant, )

)

v. ) Appeal No. 01A00208

) Agency No. 97015HCF

Donna E. Shalala, )

Secretary, )

Department of Health and Human )

Services, )

Agency. )

____________________________________)

DECISION

On October 5, 1999, the complainant filed an appeal with this Commission

from the agency's final action which it issued pursuant to 29 C.F.R. �

1614.110.<1> The Commission accepts the complainant's appeal 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 in this appeal is whether the Administrative Judge

properly granted the agency's motion for a decision without a hearing

based on a finding that there were no material facts at issue.

BACKGROUND

The complainant alleged in his complaint of December 29, 1996, that the

agency's Health Care Finance Administration (HCFA) discriminated against

him based on his race (White) when it did not select him for one of two

GS�340-13 Program Manager positions in Medicare Customer Assistance,

Office of Customer Communication, Bureau of Program Operations.

After an agency investigation, the complainant requested a hearing

before an Administrative Judge employed by the Commission. On May 18,

1998, the agency submitted to the Administrative Judge a Motion for a

Decision without a Hearing. The complainant provided an opposition to

the agency's motion on June 1, 1998. After reviewing the investigative

file and the submissions of the parties, the Administrative Judge

concluded that there was no dispute as to material facts and that

there was sufficient information upon which to base a decision without

a hearing. The Administrative Judge made findings of fact, addressed

contentions raised by the complainant, and concluded that the complainant

had failed to establish by a preponderance of the evidence that the agency

unlawfully discriminated against him based on his race regarding the two

non-selections. By decision of September 7, 1999, the agency adopted

the Administrative Judge's findings of fact and conclusions of law.

This appeal followed.

ANALYSIS AND FINDINGS

As a threshold matter, the Commission finds that the agency initially

failed to include in the record copies of the agency's May 18, 1998

Motion for a Decision without a Hearing and the complainant's June 1, 1998

Opposition to the Agency's motion when it submitted the complaint file to

the Commission. Following the issuance of a show cause notice by the

Commission's Office of Federal Operations (OFO), the agency submitted

a copy of its Motion for a Decision without a Hearing but failed to

submit a copy of the complainant's Opposition to the Agency's Motion.

In response to the show cause notice, the agency represents that its

counsel contacted the complainant's attorney in an effort to obtain

the missing information and that the complainant's appellate attorney

declined to cooperate in this activity. Nevertheless, the Commission

finds that the submitted record demonstrates that the issuance of a

decision without a hearing was not appropriate in this case.<2>

EEOC Regulation 29 C.F.R. �1614.109(e) authorizes Administrative Judges

to issue findings of fact and conclusions of law without a hearing where

the record and the submissions of the parties, if any, demonstrate that

there is no genuine issue as to any material fact. The Regulation is

patterned after the summary judgment procedure set forth in Rule 56 of

the Federal Rules of Civil Procedure. Rule 56 provides for the granting

of summary judgment when the moving party shows �that there is no genuine

issue as to any material fact and the moving party is entitled to judgment

as a matter of law.� Rule 56 further provides that a party opposing a

properly supported motion for summary judgment �may not rest upon the

mere allegations or denials of his pleading, but ... must set forth

specific facts showing that there is a genuine issue for trial.� An

issue is �genuine� if the evidence is such that a reasonable fact-finder

could find in favor of the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 US. 242, 248 (1986). An issue of fact is �material� if it might

affect the outcome of the complaint under the governing substantive law.

Id. At the summary judgment stage, the role of the judge is not to

determine the truth of the matter but to determine whether there is a

genuine issue for trial. Id. at 249. What is required to withstand a

motion for summary judgment is not sufficient evidence to resolve the

matter conclusively in favor of the party asserting the existence of a

material fact at issue. Rather, all that is required is that sufficient

evidence supporting the claimed factual dispute be shown to require a

jury or judge to resolve the parties' differing versions of the truth

at trail. Id.

It is undisputed that the complainant established a prima facie

case of discrimination based on his race. He applied and was deemed

qualified by the agency for two vacant Program Manager positions; he

was not selected; and two individuals of a different race were selected:

selectee 1 (Black) and selectee 2 (Black). It is also undisputed that

the agency rebutted the complainant's prima facie case by articulating

legitimate nondiscriminatory reasons for the two non-selections through

affidavits by the selecting official (White) who was the Acting Director

of the Bureau of Program Operations; the recommending official (White)

who was the Acting Manager of the Office of Customer Service; and the

Manager of the Medicare Customer Unit (White) who was the individual who

would be supervising the selectees. Thus, the outcome on the merits of

this case turns on whether the articulated reasons for the selections

were a pretext for discrimination based on race.

In this case, the selecting official averred that the complainant was not

selected because he was not recognized as demonstrating the same level of

leadership skills as the two selectees. It is undisputed that selectee

1 had chaired and overseen the Division of Medicare Operations Support

(DMOS) reorganization work group which directly impacted the positions

at issue. Selectee 1 also was about to complete the HCFA Leadership

Program and was reassigned to his new position at the same grade level.

The Commission finds, however, that there is a material fact at issue

regarding the purported superiority of selectee 2's leadership skills.

According to the selecting official, the complainant had served on the

initial reorganization committee to plan how and where functions in the

former DMOS should be located within HCFA and the selectees had served

on a later reorganization committee which made specific organizational

proposals and implemented plans to perform the functions in the Bureau

of Program Operations. The record does not provide any specific

information describing what leadership roles, if any, the complainant

and selectee 2 took on these reorganization committees. The record

contains other evidence, however, of the complainant's leadership skills.

The complainant's application lists Superior Performance Awards for

1986-1989 and 1993-1994; Special Act Awards in 1990 and 1991; and

a Bureau Director's Citation in 1993. The complainant's application

includes a copy of the Bureau Director's Citation which recognizes the

complainant's exemplary performance as Control and Support Sector Chief

and his effective functioning as the Correspondence Branch Chief. An

undated letter awarded the complainant an EPMS appraisal bonus.

The letter indicated that the complainant's work as Chief of the

Correspondence Branch, providing �outstanding leadership� in directing

the numerous activities of the Branch, as well for his volunteering

to supervise the Control Support Section for a two month period, had

contributed to the effective operation of both the Bureau and the agency.

In contrast, Selectee 2's application does not list any awards.

The selecting official also averred that he based his selections on the

recommendations of the Acting Office Director and the Unit Manager where

the positions were located. The selecting official indicated that they

discussed all of the candidates and he agreed with their recommendations.

However, the Commission finds that the rationale for the recommendations

of the Acting Office Director and the Unit Director conflict with one

another. The Acting Director, Office of Customer Communications, averred

that he recommended selectee 2 for promotion primarily because she was

currently a supervisor in the organization where the vacancy was and her

selection would provide continuity in the reorganization in a unit with

significant problems.<3> The Medicare Customer Unit Manager agreed that

the DMOS group had a lot of baggage to get rid of, but indicated that

the group needed a fresh start. She opined that since the complainant

had been in the former organization, it would have been difficult for

him to lead the same persons who had worked for him. The Commission

finds that the apparent disagreement between the statements of the Acting

Office Director and the Unit Manager on the desirability of continuity

in leadership for a unit with significant problems raises an issue of

material fact as to the agency's motivation for promoting selectee 2.

Related questions of material fact are the nature of the problems in the

unit and the extent to which selectee 2 was responsible for the unit's

problems in light of her merely fully successful performance rating

for her leadership of the unit in calendar year 1995.<4> In contrast,

the complainant had received awards for his performance as Branch Chief

from 1991 to 1993.<5>

Finally, the Commission finds that the record raises an additional

question of material fact as to whether the agency officials fully

considered the complainant's qualifications for the vacancies when making

their selections. The Commission observed that the recommending official

and the selecting official sought input from the new Unit manager but,

according to the EEO Counselor's Report, they did not seek input from the

agency official who had supervised both the complainant and selectee

2 and who could have provided information on their effectiveness

as Branch Chief. In addition, both the Acting Office Director and

the Unit Manager averred that they read the candidates' applications.

However, the affidavit of the Acting Office Director did not include any

reference to material contained in the applications. Instead he indicated

only summarily that he did not recommend the complainant because �the

skills and the experiences� of the selectees made them �more attractive

candidates.� Moreover, according to the Unit Manager, nothing in the

complainant's 171 jumped out at her regarding his management experience.

However, the complainant's 171 includes descriptions of the awards

he had received and the management positions he had held, including

GS-11 Branch Chief, DMOS, Correspondence Branch, from September 1991

to October 1993 supervising 17 people; Operations Supervisor, Social

Security Administration, from March 1990 to September 1991 supervising

15 people; and Assistant Buyer and Area Manager for over six years in

private industry, supervising from 10 to 27 employees. The Commission

finds that the failure to seek information from the agency official

who had supervised the complainant and selectee 2, and the lack of

specificity in the affidavits of the Acting Office Director and the Unit

Manager regarding the complainant's and the selectees' prior experience

raises a question of material fact as to the actual motivation of these

officials when recommending selectee 2.

In sum, the Commission finds that genuine issues of material facts exist

that call into question the credibility of the agency's articulated

reasons for the selection of selectee 2. Accordingly, the Commission

concludes that the issuance of a decision without a hearing was improper

in this case. See Pedersen v. Department of Justice, EEOC Request

No. 05940339 (February 24, 1995) (when credibility is at issue there is

a need for cross-examination and summary judgement is improper).

CONCLUSION

The Commission finds that the decision of the agency must be VACATED

and the matter REMANDED for hearing. Because the agency's articulated

reasons lack specificity, it is the decision of the Commission to

permit the parties to conduct additional discovery prior to the hearing

on the complaint. The Commission further finds that the testimony of

the agency official who had supervised the complainant and selectee 2,

and who may have other relevant information, should be allowed by the

Administrative Judge.

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 permit the parties to conduct discovery.

The Administrative Judge also shall authorize the testimony of the agency

official who had supervised the complainant and selectee 2 as to their

effectiveness and as to any other matters relevant to the question of

pretext. After a hearing, 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 5, 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 the complainant, the complainant's representative

(if applicable), and the agency on:

Date 1On 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.

2The Commission recommends that the agency develop a procedure whereby

it can ensure the completeness of all complaint files submitted to the

Commission. In addition, the Commission places the agency on specific

notice that any future failure to include in a complaint file copies of

all documents submitted to or issued by Administrative Judges may result

in a sanction of the agency by the Commission.

3The Acting Office Director also averred that he did not recommend

the complainant because the skills and experiences of the selectees

made them more attractive candidates. The Commission finds that this

statement lacks sufficient specificity, as to the particular skills

and experiences that were desirable, to provide the complainant with

a full and fair opportunity to prove pretext. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). Accordingly,

the Commission finds that this statement may not serve to rebut the

complainant's prima facie case of discrimination.

4Selectee 2 did not receive either an outstanding or an excellent

performance rating for her work as Branch Chief in 1995. She also did

not receive any performance awards for her Branch Chief work.

5The Unit Manager also averred that she had seen selectee 2's commitment

and had seen that she could move people forward. Again, these statements

lack the necessary specificity to provide the complainant with a full

and fair opportunity to prove pretext. See Burdine at 258.