01973000
06-10-1999
William J. McGarrity, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, (Immigration and Naturalization Services), Agency.
William J. McGarrity v. Department of Labor
01973000
June 10, 1999
William J. McGarrity, )
Appellant, )
)
v. ) Appeal No. 01973000
) Agency No. 4-11-054
Alexis M. Herman, ) Hearing No. 100-95-7873X
Secretary, )
Department of Labor, )
(Immigration and Naturalization )
Services), )
Agency. )
DECISION
INTRODUCTION
Appellant timely filed an appeal from the final agency decision ("FAD")
on his complaint alleging discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. In his
complaint, appellant alleged that he was discriminated against based on
reprisal for prior EEO activity when he was not selected for the position
of Manpower Development Specialist, GM-14 (the "position"). This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
For the reasons set forth below, the FAD is VACATED and REMANDED.
ISSUE PRESENTED
The issue presented in this appeal is whether the EEOC Administrative
Judge ("AJ"), in making the decision not to hold a hearing, erred in
determining that there were no genuine issues of material fact.
BACKGROUND
At the time in question, appellant was employed as a Labor Economist,
GS-13, in the agency's Division of Statutory Programs. He submitted his
application for the position, which was in the Employment and Training
Administration ("ETA"), Division of Foreign Labor Certification.
Appellant was placed on the best qualified list, but another candidate
was selected. After learning of his nonselection, appellant timely
filed a formal EEO complaint which was accepted and processed
by the agency. At the conclusion of the investigation, appellant
requested an administrative hearing before an EEOC Administrative Judge
("AJ"). Concluding that no genuine factual disputes existed, the AJ
granted the agency's request and issued a recommended decision ("RD")
without a hearing, finding no discrimination. See C.F.R. �1614.109(e).
The selecting official ("SO") averred that she had no knowledge of
appellant's prior EEO activity and that she made the selection by herself
without the input of any other official. Specifically, the SO denied
that her supervisor, the Director of the ETA, who was aware of appellant's
prior EEO activity, had any involvement in the selection. The SO averred
that the critical factors in her selection decision were an applicant's
knowledge of immigration programs and ability to supervise staff.
In the RD, the AJ queried whether appellant could establish a prima facie
case of retaliation in light of the SO's statement that she was unaware
of his prior EEO activity and that she had acted alone in making the
selection decision. However, inasmuch as appellant asserted that the
affidavits of the SO and the Director contained contradictions, the AJ
assumed for purposes of summary judgment that the Director had input into
the selection decision and, thus, that appellant established a prima facie
case of retaliation. Regarding the selection decision, the AJ found that
the agency had articulated nondiscriminatory reasons for its actions by
asserting that appellant's application did not reflect that he possessed
the necessary knowledge of immigration programs and ability to supervise.
Thus, the AJ found that appellant must "either i) discredit the proffered
reasons, either circumstantially or directly, or ii) adduce evidence,
whether circumstantial or direct, that discrimination was more likely
than not a motivating or determinative cause of the adverse employment
action." Fuentes v. Perski, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis
in original). The AJ found that appellant "did not argue, nor did his
application show, that he possessed the knowledge of immigration programs
and the ability to supervise that [the SO] stated [were] critical."
Accordingly, the AJ granted summary judgment and found that appellant
failed to establish reprisal. In its FAD, the agency adopted the RD.
On appeal, appellant's counsel argues that the AJ erred in issuing
an RD without a hearing because there were material facts in dispute
which could only be resolved through a hearing. The brief asserts that
since filing an EEO complaint alleging discrimination based on age, and
protesting such practices in a letter to the Secretary of the agency,
appellant has been subjected to retaliation, including various actions
taken by the Director. The brief asserts that appellant had worked in the
ETA for 10 years and had been a GS-14 there prior to being downgraded
to a GS-13 during a reduction in force, and that he was entitled to
repromotion to a GS-14 position without competition. Counsel argues
that appellant was well qualified for the position by virtue of his 10
years of experience in the ETA; that he had immigration experience while
in his current division; and that his application, in contrast to the
AJ's findings, clearly reflected his extensive supervisory experience
obtained in at least three different positions. The brief contends that
the SO was required to consider only the Evaluation Factors set forth in
the Vacancy Announcement and that she instead considered other factors.
Counsel asserts that the SO's affidavit contains contradictions and
that she was in fact aware of his prior EEO complaints and that the
Director's affidavit reflects that he knew who was under consideration
for the position.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when s/he 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, appellant has failed
to establish the essential elements of his/her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In response to a
motion for 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.2 766, 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 judgement 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 when she
concluded that there was no genuine issue of material fact with respect
to appellant's nonselection. Appellant was included among the best
qualified candidates for the position. Appellant contends that he had
more supervisory experience than the selectee and was better qualified
than the selectee. Appellant further contends that the factors stressed
by the SO in her affidavit were not among the Evaluation Factors set
forth in the Vacancy Announcement.
While we make no judgment about the veracity or motivation of the
SO, this is precisely the type of evidence that is appropriate
for cross-examination, elaboration and credibility determinations.
EEOC Regulations plainly indicate that the hearing is intended as a
continuation of the investigatory process. Truncation of this process,
while material facts are still in dispute and the credibility of witnesses
is still ripe for challenge, improperly deprives appellant of a full
and fair investigation of his claims. Therefore, we find that the AJ
erred when she issued an RD without a hearing on the issue of appellant's
nonselection. Accordingly, it is the decision of the Commission to vacate
the FAD and remand this matter to the agency for further processing.
CONCLUSION
For the reasons stated above, the FAD is VACATED AND REMANDED, pursuant
to the following Order, for a hearing.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.109 et seq. The agency shall acknowledge to
appellant that it has received the remanded complaint within thirty
(30) calendar days of the date this decision becomes final and advise
appellant that it has requested the appointment of an EEOC AJ pursuant to
29 C.F.R. �1614.109(a). The agency shall make every effort to expedite
the scheduling of a hearing in this matter.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations