0120070381
04-02-2009
William Luther, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
William Luther,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120070381
Hearing No. 100-2005-00552X
Agency No. 045621
DECISION
On October 23, 2006, complainant filed an appeal from the agency's October
4, 2006 final order concerning his equal employment opportunity (EEO)
complaint. Complainant alleged 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). 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 Patent Examiner, GS-1224-14, at the agency's U.S. Patent and Trademark
Office (PTO) in Alexandria, Virginia. On March 16, 2004, complainant
filed an EEO complaint alleging that he was discriminated against on the
bases of race (White), sex (male), and in reprisal for prior protected
EEO activity when the agency:
(1) on or about October 23, 2003, engaged in an improper review of
complainant's work performance;
(2) on December 9, 2003, issued complainant an annual performance
rating of "Unacceptable" for Fiscal Year (FY) 2003;
(3) on December 9, 2003, declined to make a "production adjustment"
to complainant's performance requirement;
(4) on December 9, 2003, declined to make a "pipeline learning curve
adjustment" to complainant's performance requirement;
(5) conducted disparate reviews of complainant's performance and
falsified his performance record from 2002 to present; and
(6) engaged in further reprisal against complainant after December 9,
2003, based on his prior EEO activity, relative to leave requests and
time for union activities.
At the conclusion of the investigation on March 10, 2005, complainant
was provided 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. Subsequently, the AJ assigned
to the case denied motions by complainant to amend the complaint to
include matters which the AJ determined were not like or related to the
instant matter, including complainant's removal from agency employment.
The record reflects that complainant's removal was the subject of a Merits
Systems Protection Board review, in which EEOC concurred in William Luther
v. Department of Commerce, EEOC Appeal 0320080040 (April 11, 2008).
The agency moved for a decision without a hearing. Over complainant's
objection, the AJ granted the agency's motion and on September 26, 2006,
issued a decision in favor of the agency.
In her decision, the AJ dismissed issues 1 and 5 and granted summary
judgment on issues 2, 3, 4 and 6. The AJ dismissed claims 1 and 5 as
preliminary steps to taking an employment action. The AJ found that
complainant failed to introduce any evidence that raised a genuine dispute
as to the agency's stated reasons for its actions regarding issues 2, 3,
4 and 6. The agency subsequently issued a final order fully implementing
the AJ's decision.
CONTENTIONS ON APPEAL
Complainant argues that the AJ erred in dismissing claims 1 and 5 because
the preliminary steps were accompanied by another action that caused
him harm, and that the AJ erred in finding that complainant failed to
present evidence that the agency's explanations were pretextual.
The agency contends that the AJ's decision and the agency's final order
should be affirmed because complainant failed to present evidence to
create a genuine issue of material fact sufficient to rebut the agency's
articulated non-discriminatory reasons for its actions.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions with regard to the initial claims, and the agency's
final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating
that a "decision on an appeal from an agency's final action shall be
based on a de novo review . . ."); see also EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially
means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's,
and agency's, factual conclusions and legal analysis - including on the
ultimate fact of whether intentional discrimination occurred, and on the
legal issue of whether any federal employment discrimination statute
was violated. See id. At Chapter 9, � VI.A. (explaining that the de
novo standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
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. Department of Defense, 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).
We concur with the AJ's determination that the record is sufficiently
developed to permit the issuance of judgment without a hearing and that
complainant has failed to present evidence that demonstrated a genuine
dispute of material fact.
Initially, with regard to the dismissal of claims 1 and 5, EEOC
Regulation 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of
a claim that alleges that a proposal to take a personnel action, or
other preliminary step to taking a personnel action is discriminatory.
Claims 1 and 5 concern the preliminary step of reviewing complainant's
performance prior to an appraisal. We note that when a complaint is
filed on a proposed action and the agency subsequently proceeds with
the action, the action is considered to have merged with the proposal.
See Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568
(October 10, 1997); Charles v. Department of the Treasury, EEOC Request
No. 05910190 (February 25, 1991). Complainant raised claims concerning
his actual performance rating through claims 2 through 4. Therefore,
we find that the AJ properly dismissed claims 1 and 5 as they have merged
into claims 2 through 4.
For the purpose of this analysis, we will assume that complainant
established a prima facie case of discrimination and retaliation. The
prima facie inquiry may be dispensed with in this case, however,
because the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
We find that the record provides no evidence to demonstrate that
the agency's articulated reasons were pretextual with regard to
complainant's race, sex, or reprisal for prior protected EEO activity.
Complainant failed to provide the specifics of his claims or to address
the agency's stated reasons. During discovery, complainant did not
identify any similarly-situated employees and was unable to recall the
particulars of comments that he said were made to him that he believed
showed discriminatory or retaliatory intent.
Although complainant disagreed with the method of review used by the
agency, there is no evidence that the choice of methods was due to race,
sex or reprisal. The record shows that complainant committed an error
and under the policy applicable to all employees, the resulting error rate
warranted an "unacceptable" rating. Because he received an "unacceptable"
in a critical element, complainant could receive no higher rating than
he received. The evidence does not show that complainant was denied a
production goal adjustment ("learning curve" and "pipeline adjustment")
to which he was entitled. There is no support in the record to show
that the agency conducted disparate reviews or falsified his record.
We note with regard to complainant's allegation that the agency engaged
in further reprisal against him after December 9, 2003, until the time
the instant complaint was filed, there is no evidence that the agency
denied complainant his requested union time or discriminatorily denied
any leave requests.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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), 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 (S0408)
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 (Z1008)
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
April 2, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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