01A10996_garza
07-13-2001
Francisco Garza, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Francisco Garza v. Department of the Air Force
01A10996
July 13, 2001
.
Francisco Garza,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A10996
Agency Nos. KHOF98422, KHOF98297
Hearing No. 360-99-8719X
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII)
42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of race (Hispanic), national origin
(Mexican-American), and age (47 at relevant time) and retaliated against
for his prior EEO activity when: 1) he received an appraisal rating
of �Excellent� and 2) he was not selected for the position of Equipment
Management Specialist. For the following reasons, we VACATE the agency's
final order and REMAND the matter for hearing.
The record reveals that during the relevant time, complainant was
employed as an Equipment Specialist (Electronic) at the agency's
Kelly Air Force Base in San Antonio, Texas. On December 22, 1997,
complainant filed an EEO complaint alleging that he was discriminated
against when he was not promoted.<1> According to complainant, in
retaliation for this EEO activity, he was assigned additional duties
which he had difficulty performing. Again according to complainant,
these performance difficulties resulted in complainant receiving an
�Excellent� appraisal rating. This rating was lower than complainant
believed he deserved. Believing himself to be a victim of discrimination,
complainant sought EEO counseling.
Before the counseling process concluded, complainant learned that he had
not been considered for promotion to the position of Equipment Management
Specialist. According to complainant, he was told by management that
he was not considered for the position because, as a result of his
appraisal �he didn't show high enough.� Believing the non-selection to
be the result of discrimination, complainant brought this issue to the
attention of the EEO Counselor.
Following counseling, complainant filed a formal complaint on
September 14, 1998. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, complainant
was provided a copy of the investigative file and requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination.
With respect to the appraisal claim, the AJ concluded that complainant
established a prima facie case of retaliation but not of race, national
origin, sex or age discrimination. With respect to the nonselection
claim, the AJ found that complainant had established a prima facie case
of race, national origin, sex or age discrimination but did not address
the question of whether he had made out a prima facie case of retaliation.
The AJ then concluded that the agency proffered legitimate,
nondiscriminatory reasons for the appraisal and the nonselection and
that �[c]omplainant has produced insufficient evidence of pretext to
carry the burden of persuasion in this case.�
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. 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 does not
sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred in
determining that this matter could appropriately be decided without
a hearing. It is fundamental that a decision without a hearing may
be rendered only where there is no genuine issue of material fact
between the parties. Here complainant's evidence directly contradicts
the agency's evidence on a number of important points. For example,
the agency sought to justify the low rating complainant received under
the factor entitled �Working Relationships� by adducing his supervisor's
testimony that complainant did not demonstrate the ability �to relate to
people effectively.� In response, complainant cited evidence that he
had an �open line of communication and exceptional working relationship�
with co-workers and customers. The AJ completely ignored this conflict
in testimony and the obvious factual dispute it creates. Instead, the
AJ repeatedly engaged in the kind of weighing of evidence that should
not be performed without having held a hearing.<2>
We find that complainant has adduced sufficient evidence which, if
believed, could support an inference that the agency had engaged in
retaliation and discrimination as alleged. 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 agency's final action and
REMANDS the matter for a hearing in accordance with this decision and
the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's San Antonio
District 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 the complaint 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 (M0900)
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 13, 2001
__________________
Date
1The December 28, 1997 complaint is not a subject of this appeal.
2 Our conclusion that the AJ was engaged in an inappropriate weighing
of evidence is bolstered by her repeated use of such phrases as �[t]he
evidence persuades me . . . .� or �I find [the agency's] explanations to
be credible . . . .� In determining whether a decision without a hearing
is appropriate, an AJ should not undertake to evaluate the persuasiveness
or credibility of any evidence. That can be done only after a hearing
is held.