0120090271
02-05-2009
Claude D. Rhodes,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090271
Hearing No. 530200700263X
Agency No. ARLEAD06JUL02741
DECISION
On October 20, 2008, complainant filed an appeal from the agency's
September 17, 2008 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 probationary Heavy Mobile Equipment Repairer Leader at the Letterkenny
Army Depot, in Chambersburg, Pennsylvania.
On August 18, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of race (Black) when he was
forced to resign from Federal Service in lieu of separation.
At the conclusion of the investigation, 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. Over the complainant's objections, the AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision finding no discrimination.
In his decision, the AJ found that complainant failed to demonstrate that
his termination, or resignation, occurred under facts which gave rise to
an inference of discrimination. The AJ further found that complainant
failed to dispute the agency's reasons for terminating complainant;
namely, that complainant reported a false statement on his application
for employment. In addition, the AJ noted that complainant failed to
name any other individual who was treated more favorably under similar
circumstances.
On September 17, 2008, the agency issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination, as alleged.
CONTENTIONS ON APPEAL
In his appeal, complainant contends that he failed to report a prior
conviction on his application for federal employment because he forgot
about the dates, and did not recall being on probation in the ten years
before he applied for the job. In response, the agency maintains that
the evidence reveals a Caucasian employee was also terminated for failing
to disclose information on his application. The agency contends that
complainant failed to introduce evidence of anyone who was treated more
favorably than he was under similar circumstances. To the extent that
complainant raised a hostile work environment claim, the agency maintains
that his allegations do not represent severe and pervasive conduct.
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 careful review of the record, we find that the AJ correctly
issued a decision without a hearing, because no genuine dispute of
material fact existed. The record reveals that complainant worked as a
contractor with the agency as of June 2005. In March 2006, complainant
filed out an application for employment with the agency to work as a Heavy
Equipment Repairer Leader with a two-year probationary period. The record
further reveals that, when answering question 9 on his application,
complainant denied having been convicted, imprisoned, or placed probation
or parole within the last ten years. Complainant worked in the subject
position for three months. However, after a routine investigation, it
was discovered that complainant had been on probation until March 5,
1999 pursuant to a plea bargain. Complainant was therefore issued a
letter of termination for failing to disclose this information on his
application form. Complainant states he was given the opportunity to
resign instead of termination.
Complainant's primary argument is that he has been treated differently
than Caucasian employees and that, had he been Caucasian, the agency
would have given him a less severe penalty. However, complainant failed
to produce evidence that the agency did, in fact, treat other individuals
less severely for failing to disclose information on their application
forms. Although one witnesses testified during the Fact-Finding
Conference that others had been treated less severely, neither the
witness nor complainant identified these comparators. Further, the
agency introduced evidence that it had issued a named Caucasian individual
with a letter of termination for failing to disclose information on his
application form. Accordingly, we find that complainant has not raised
an inference of discrimination with respect to his claim of disparate
treatment.
The individual who initiated the investigation into complainant's
application had retired by the time of the investigation, and was not
available to testify during the Fact Finding Conference. However, the
record reflects that many new hires were referred for investigation.
As such, we find insufficient evidence that complainant was referred
for an investigation because of his race.
In sum, we find complainant failed to carry his burden of presenting
evidence that would raise an inference of discrimination and failed to
dispute the agency's reasons for its actions. 1
CONCLUSION
We AFFIRM the agency's final action finding no discrimination.
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
February 5, 2009
Date
1 We note that in his response to the agency's motion for a decision
without a hearing, complainant alleged, as he does on appeal, that while
he was a contractor for the agency, he was subjected to a hostile work
environment, in that he overheard someone used the "N word" and on one
occasion saw a noose in the workplace. These allegations were not part of
the accepted complaint. Nonetheless, the record reflects that the agency,
upon being apprised of these incidents, took prompt remedial action.
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0120090271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090271