0120090280
01-30-2009
Yvonne White, Complainant, v. Hilary R. Clinton, Secretary, Department of State, Agency.
Yvonne White,
Complainant,
v.
Hilary R. Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120090280
Hearing No. 570200800197X
Agency No. DOSF01707
DECISION
On October 23, 2008, complainant filed an appeal from the agency's October
8, 2008 final order concerning her 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. 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.
ISSUE PRESENTED
Whether the AJ's decision to issue a finding of no discrimination without
a hearing was appropriate.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Contact Representative at the agency's New Orleans, Louisiana Passport
Office. On November 16, 2006, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of race (African-American)
and reprisal for prior protected EEO activity when she was not selected
for the following positions:
1. Passport Specialist, GS-0967-5/7, Vacancy Announcement
No. AR498847;
2. Passport Specialist, GS-0967-07, Vacancy Announcement
No. 38707; and
3. Passport Specialist, GS-0967-09, Vacancy Announcement No. 385915.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's May 6, 2008 motion for a decision without
a hearing and issued a decision without a hearing on August 25, 2008.
In his decision, the AJ found complainant failed to present sufficient
evidence that would raise an inference of discrimination, and failed to
submit sufficient evidence that would dispute the agency's reasons for
its actions. With respect to Vacancy Announcement No. AR498847, the AJ
found that complainant received a score of 85 based upon information
she provided in an online questionnaire for the job. The undisputed
evidence revealed that only 7 selectees were chosen, and no one with
a score lower than 89 was chosen. Although complainant alleged that
she was retaliated against for filing a prior EEO complaint because her
supervisor suggested to her that he had read her personnel file, the AJ
found that this statement did not support an inference of retaliation.
The AJ found no other evidence of a discriminatory or retaliatory motive.
As for Vacancy Announcement No. 383707, the AJ found that complainant
failed to present sufficient evidence that would raise an inference
of discrimination. Complainant applied for the position in question
only at the GS-7 level, and the only selections were made were at the
GS-5 level. Accordingly, complainant failed to present evidence of
similarly-situated individuals, outside of her protected class, who were
treated more favorably.
Finally, with respect to Vacancy Announcement No. 385915, the AJ noted,
"On or about September 13, 2006, OPM notified complainant that her
application would not be considered due to missing or 'ineligible
[illegible] form.'" The AJ found that found that complainant's
application was not considered because it contained a missing or illegible
form. The selecting official averred that she ultimately chose someone
who had prior passport experience, and who had received a recommendation
from the Adjudication Manager. The AJ found that complainant failed
to introduce sufficient evidence that would dispute the reasons she was
not placed on the certificate of eligibles.
On October 8, 2008, the agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant presents statements of co-workers who attest to
her qualifications for the positions.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, 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).
After a review of the record, we find that the AJ was correct in issuing
a decision without a hearing, as no genuine issue of material fact exists.
Complainant presented insufficient evidence that would raise an inference
of race discrimination or retaliation. None of the witnesses presented
during the investigation had witnessed any incident that could be
considered discriminatory, nor did complainant present other evidence
of a discriminatory motive. Further, there was insufficient evidence
of a retaliatory motive. Finally, complainant failed to dispute, with
evidence, the agency's reasons for its actions; namely, that she did
not rate high enough to be considered for the positions in question,
or did not otherwise qualify.
CONCLUSION
We AFFIRM the agency's final action.
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 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), 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
January 30, 2009
Date
2
0120090280
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120090280