01a33634
04-29-2005
Judith A. Monahan, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Judith A. Monahan v. Department of Veterans Affairs
01A33634
April 29, 2005
.
Judith A. Monahan,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33634
Agency No. 200H-2472
Hearing No. 170-A2-8217X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Program Clerk, GS-4 step 6, in the
Vocational Rehabilitation and Employment Service at the agency's Newark,
New Jersey facility, filed a formal EEO complaint on July 30, 2001.
Complainant alleged that the agency had discriminated against her on the
basis of her disability (visual impairment) when she was not selected
for the position of Veterans Service Representative (VSR), GS-996-5,
under vacancy announcement number 394-01-309-7-92.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
disability discrimination because complainant is an individual with
a disability under the Rehabilitation Act. She applied and was found
qualified for the position at issue, but was ultimately not selected in
favor of selectees outside of complainant's protected class. The AJ
also concluded, however, that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the VSR
position, which complainant failed to show were a pretext for unlawful
discrimination. Specifically, the AJ found that the three selectees were
qualified at the GS-7 level, while complainant was only qualified as a
GS-5, and that complainant did not possess the same degree of relevant
skill as the selectees. The agency's final order implemented the AJ's
decision.
On appeal, complainant contends that the AJ erred in issuing a
decision without a hearing as there are genuine issues of material
fact which require a hearing. Complainant further contends that when
asked why complainant had not been selected for the position at issue,
the recommending official stated, among other things, that during the
interview, complainant stated that her weakness was that she had taken a
good deal of sick leave as a result of having eye surgery. Complainant
contends that the recommending official further stated that complainant
was not dependable or reliable, and that she wouldn't want someone on
her team who was not dependable or reliable. Complainant asserts that
these statements establish that her disability was the reason for her
non-selection.
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 a decision without a hearing,
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 disposition 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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a case. If
a case can only be resolved by weighing conflicting evidence, a decision
without a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
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
(Feb. 24, 1995).
After a careful review of the record, the Commission finds that the AJ
erred in issuing a decision without a hearing, as a genuine dispute
of material fact exists which requires a hearing on the merits.
In so finding, we note that both the recommending official (RO) and
the selecting official (SO) provided affidavit testimony stating that
complainant did not have the relevant legal experience nor the experience
with claims processing necessary for the VSR position. (Report of
Investigation, Exhibit B-3, 11-17; B-4, 9-12). Additionally, the SO
stated that complainant's supervisor (S1) gave her a poor evaluation
and that S1had previously asked SO "to give her work because she tended
to sit around when [S1] wasn't there and that [S1] wanted to make sure
she had work to do." (R.O.I., Ex. B-3, 12). We find, however, that the
record does not contain any affidavit testimony from S1, and according
to the report of contact from the investigator, S1stated that he was
not contacted to provide a recommendation for complainant with respect
to the position at issue, which is in direct conflict with the testimony
of the SO. (R.O.I., C-9, 2). We also find that while complainant and her
union representative contend that RO stated, with respect to complainant
taking sick leave for her eye surgery, that "she herself would not
want to have anyone on her team who is not dependable or reliable," RO,
in her affidavit testimony, denies making such a statement.<1>
As such, we find that there are genuine issues of material fact in dispute
regarding complainant's qualifications for the VSR position, and S1's
purported negative evaluation, which require a hearing on the merits.
We also find that, due to the conflicting affidavit testimony regarding
RO's alleged comment that the complainant wasn't dependable or reliable,
there is a need for an assessment of the credibility of the various
parties. 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
to examine and cross-examine witnesses." See EEOC Management Directive
(MD) 110, as revised, Nov. 9, 1999, Chapter 7; see also 29 C.F.R. �
1614.109. "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." Bang v. United States Postal Service, EEOC Appeal No. 01961575
(Mar. 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 23, 1995).
Therefore, we find that the AJ's issuance of a decision without a hearing
was not appropriate, and we vacate the agency's final order and remand
the case in accordance with the order below.
ORDER
The agency shall submit to the Hearings Unit of the Philadelphia 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 (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
April 29, 2005
__________________
Date
1 We note that while the agency has articulated a legitimate
non-discriminatory reasons for its action, this case may be one of �mixed
motive.� A mixed motive case is one in which the agency bases its decision
upon permissible and impermissible factors. Under a mixed motive theory,
where there is direct evidence of an impermissible factor, the agency
must prove, by a preponderance of the evidence, that it would have made
the same decision absent a discriminating factor (age). EEOC Policy
Guidance on Recent Developments in Disparate Treatment Theory, EEOC
Notice No. 915.002 at 16 (July 7, 1992).