0120110637
05-23-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120110637
Hearing No. 570-2010-00289X
Agency No. F200900166
DECISION
On October 27, 2010, Complainant filed an appeal from the Agency's September 24, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which adopted an EEOC Administrative Judge's (AJ's) decision.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that on January 6, 2009, he was terminated from his position as a Special Agent because of his sex, in violation of Title VII.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency's Salt Lake City Division, in Salt Lake City, Utah. The AJ's decision incorporated by reference, the material facts as stated in the Agency's "Motion for Summary Judgment."
On or about June 10 2007, the Draper, Utah Police Department (DPD) contacted the Agency's Salt Lake City office to report the arrest of Complainant for domestic violence against his ex-wife ("ex-wife"). On June 10, 2007, the DPD responded to a 911 call from the ex-wife, and when they arrived, interviewed Complainant, the ex-wife, Complainant's son, and Complainant's son's friend about the altercation. The DPD decided to arrest the Complainant for domestic violence, among other charges. The Agency conducted a year-long internal investigation of the June 10, 2007 incident, which included over 30 witness interviews. On January 6, 2009, the Agency's Office of Professional Responsibility (OPR) made the decision to terminate Complainant's employment. OPR decided that termination was warranted for Complainant's violation of the following three offenses: (1) assault/battery, (2) unprofessional conduct off-duty, and (3) lack of candor under oath. On April 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when it made a decision to terminate his employment. Complainant alleged that there was gender bias in the investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. On May 5, 2010, the Agency filed a motion for a decision without a hearing. Complainant filed his opposition to the motion on June 7, 2010, and the Agency filed its reply to Complainant's opposition on June 11, 2010. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion and issued a decision without a hearing on September August 23, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the AJ found that Complainant produced insufficient evidence to establish that his sex was the reason that he was terminated from his Special Agent position. The AJ summed up Complainant's argument primarily as his being dissatisfied with the adequacy of the investigation. The AJ found that the Agency proffered a legitimate, non-discriminatory reason for Complainant's termination which Complainant failed to establish was a pretext designed to mask unlawful discrimination. Additionally, the AJ found that Complainant cited no evidence that the Agency failed to adequately investigate the matter because of his sex, and that it was undisputed that the Agency conducted multiple witness interviews; obtained three written statements; listened to Complainant's two hour oral statement; and considered documents submitted by Complainant and his attorney.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that that the AJ improperly issued a decision without a hearing because there are genuine issues of material facts in dispute. Complainant alleges that instead of holding a hearing, as he should have in the instant matter, the AJ conducted a "trial by affidavit" which Complainant argues is prohibited by applicable precedent. In response, the Agency requests that the Commission affirm the Agency's final. The Agency states that Complainant failed to submit any material evidence of gender discrimination, nor is there any evidence in the record to suggest that the Agency's actions resulted from a discriminatory motive based on gender.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").
ANALYSIS AND FINDINGS
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. Dep't of Def., 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 there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
We assume for the purposes of this analysis, that Complainant has established a prima facie case of discrimination based sex (male). We also find that the Agency articulated a legitimate, non-discriminatory reason for terminating Complainant's employment. Upon review of the record, we concur with the AJ's findings regarding Complainant's allegations of disparate treatment based sex. We find that the Agency provided a legitimate, non-discriminatory reason for Complainant's termination from the Special Agent position. The record reflects that OPR relied on several sources of information, including witness testimony; police reports; statements from Complainant; and photographs of his ex-wife's injuries, to make its determination that termination was warranted in Complainant's case. We agree with the AJ's finding that Complainant failed to establish that the Agency's decision to terminate him was motivated by discriminatory animus. The record does not contain evidence in support of Complainant's assertion that the investigation was tainted with gender bias. Complainant has not demonstrated that the Agency's proffered legitimate, non-discriminatory reason for his termination was a pretext. Consequently, we find that no reasonable inference of discrimination can be drawn.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
___5/23/14_______________
Date
2
0120110637
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110637