0120060092
07-25-2007
Floyd R. McCloud, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Floyd R. McCloud,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01200600921
Hearing No. 100-2004-00866x
Agency No. 044773HQ
DECISION
On September 30, 2005, complainant filed an appeal from the agency's
August 31, 2005, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
REVERSES the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as the Director of Continuity of Operations/Government (COOP/COG) at
the agency's Headquarters Office in Washington DC. On March 12, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (African-American), color (Black), and
reprisal for prior protected EEO activity under an EEO statute that was
unspecified in the record when:
1. On January 5, 2004 complainant was removed from his position as
Director of COOP/COG and reassigned to the position of Security Advisor
(Senior Program Director), Office of Security; and
2. Complainant was subjected to a hostile work environment when he
requested resources to run the COOP/CPG program.
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 complainant's objections, the AJ assigned to
the case granted the agency's May 31, 2005 motion for a decision without
a hearing and issued a decision without a hearing on August 15, 2005.
The AJ found that complainant failed to establish that the agency's
articulated reason for its action was a pretext for discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant argues that the AJ erred in issuing a
decision without a hearing because there are material facts at issue.
Specifically, complainant maintains that, contrary to the AJ's finding,
the agency did not articulate any reason for under-funding the COOP/CPG
program while complainant was in charge. Furthermore, complainant argues
that evidence in the record indicates that funds were available to more
fully fund the program had the agency chosen to do so. In addition,
complainant argues that complainant's high performance appraisal
contradicts the agency's contention that he was reassigned due to poor
performance. Complainant next argues that he offered evidence to show
that otherwise similarly situated colleagues outside of his protected
bases were treated more favorably than he was, with regards to being
provided an administrative assistant and other staff, and a larger
operating budget, when they were in charge of the program.
The agency on appeal requests that complainant's appeal be dismissed
because his appeal brief was not timely submitted. The agency next
requests that we affirm the FAD and argues that the AJ correctly issued
summary judgment and correctly found no discrimination. Initially,
the agency argues that complainant failed to establish a prima facie
case because he failed to establish that he incurred a harm or loss
when he was transferred. Furthermore, the agency argues, complainant
failed to identify otherwise similarly situated coworkers who were
treated differently. Specifically, the agency maintains, complainant's
successor as Director of the program was not similarly situated because
unlike complainant, his successor was placed in the position on a one-year
temporary basis and was therefore not similarly situated with complainant,
who was initially offered the position on a permanent basis. Finally,
the agency maintains, complainant has failed to identify any material
issue in dispute and the only disputed issues raised by complainant are
not material. The agency therefore requests that we affirm the FAD.
ANALYSIS AND FINDINGS
As an initial matter, we note that the agency is mistaken in relying on
29 C.F.R. � 1614.403 to support its argument that the appeal be dismissed
because of an untimely appeal brief. That section states that an appeal
shall be dismissed if the appeal is untimely, but makes no mention
of untimely supporting briefs. As noted above, the FAD was issued on
August 31, 2005 and complainant's appeal was filed on September 30, 2005.
We therefore find that complainant's appeal was timely submitted and
the agency's dismissal motion is hereby dismissed.
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).
Following a review of the record, we find that the AJ erred in finding
no material issue in this case. The AJ stated that the agency's motion
for summary judgment correctly stated the facts. The agency's motion
argued that during complainant's leadership of the COOP/COG program,
the program received "the amount of funds available at the time," Agency
Motion for Summary Judgment, p. 8, and that such funding "remained stable
before, during, and after complainant's tenure in the position." Id.
To support its claim, the agency cites to affidavits made by complainant's
successor in the position, complainant's former supervisor, and the
Budget Team Leader. Id. Complainant, on the other hand, contends that
additional funds were available at the time, but were not provided.
See Complainant's Motion Opposing Summary Judgment, p. 26. In addition,
he contends that funding for the COOP/COG program did not remain stable,
and that both his predecessor and his successor enjoyed access to higher
funding levels than complainant, as well as a larger staff. See Id.,
pp. 26-29. Such allegations are not mere assertions as complainant
provides detailed financial figures and cites to supporting evidence
in the record. Id. Thus the question of the agency's funding of
the COOP/COG program and the level of staffing provided both remain
at issue. These matters are material because they go directly to the
agency's articulated reason for its action, which is that complainant
was transferred due to poor performance.
We note that the hearing process is intended to be an extension of the
investigative process, designed to ensure that the parties have "a fair
and reasonable opportunity to explain and supplement the record and, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).
"Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims."
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998). See also Peavley v. United States Postal Service,
EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States
Postal Service, EEOC Request No. 05940578 (April 25, 1995). In summary,
because the agency's articulated reason is contradicted by complainant's
detailed evidence, an assessment as to the credibility of the various
management officials, co-workers, and complainant himself is required.
Therefore, judgment as a matter of law for the agency regarding should
not have been granted.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission VACATES the
FAD and REMANDS the claim to the agency in accordance with this decision
and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on claim 3 of the complaint, the detail to the TDA position,
in accordance with 29 C.F.R. � 1614.109 and the agency shall issue a
final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 25, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120060092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120060092