0120122448
10-18-2012
Larry A. Falcon, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Larry A. Falcon,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122448
Hearing No. 540-2011-00216X
Agency No. 8L1M11014
DECISION
Complainant filed an appeal from the Agency's April 12, 2012 Final Order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 an Aircraft Sheet Metal Mechanic at the Agency's Trainer Development Division facility in Randolph Air Force Base, Texas. On January 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (nerve damage) when:
On November 3, 2010, Complainant became aware that the Agency did not consider his disabled veteran status and therefore he was not rated or referred for selection to a position as an Aircraft Mechanic Supervisor, WS-8852-10 (announcement number 10AUG059466).
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 EEOC Administrative Judge (AJ). Complainant requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's October 12, 2011 motion for a decision without a hearing and issued a decision without a hearing on February 29, 2012.
In her Decision, the AJ found that the material facts were not in dispute and that no hearing was necessary to determine the merits of Complainant's complaint. Specifically, the AJ found that Complainant failed to present evidence that he is an individual with a disability and that the EEOC does not recognize "disabled veteran" as a protected basis of discrimination. The AJ further found that Complainant was mistaken regarding his belief that he was entitled to priority placement and veterans' preference consideration when applying for an internal promotion. The AJ found that Complainant claimed he was a 20% disabled veteran. The AJ noted that a 30% or more disability rating is required for a veteran to be given priority status.
The AJ further found no credible dispute that the selectee was a priority placement program (PPP) candidate and when he was found well qualified for the position, he was placed in the position by the Agency without further competition. The AJ noted that the undisputed evidence showed that Complainant was ranked at 75 of the 155 applicants who applied through the internal vacancy announcement. Accordingly, the AJ found the Agency articulated legitimate, non-discriminatory reasons for its action that Complainant did not show were a pretext to mask discrimination.
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.
ANALYSIS AND FINDINGS
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).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for disability discrimination. Id.
In the instant case, we find the AJ properly issued her Decision without a hearing as the material facts are not in dispute. As a preliminary matter, we find no evidence that Complainant submitted a designation of representative to the AJ that contained accurate and complete contact information regarding the identity of his representative during the hearing process. We assume, without so finding, that Complainant is an individual with a disability. We concur that the undisputed evidence shows that Complainant's application was rated 75 out of the 155 candidates who applied pursuant to the internal vacancy announcement. We find no evidence that the staffing specialist creating the list of eligible internal candidates was aware of Complainant's disability or that Complainant's rating reflected his protected status. We further find the undisputed evidence shows that Complainant was not given priority placement status and that the selectee was selected because his application received priority placement status. We find no basis upon which to disturb the AJ's decision.
CONCLUSION
We therefore 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
October 18, 2012
__________________
Date
2
0120122448
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122448