01a05026
02-16-2001
Lawrence C. Carter, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Lawrence C. Carter v. Department of Energy
01A05026
February 16, 2001
.
Lawrence C. Carter,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A05026
Agency Nos. 98-004-HGHR, 98-057-HQHR
Hearing Nos. 100-98-8169X, 100-99-8105X
DECISION
Complainant initiated an appeal concerning his equal employment
opportunity (EEO) complaints of unlawful 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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.<1> Complainant originally filed two formal
complaints which were later consolidated by the AJ in one decision.
In his formal complaint filed on October 3, 1997, complainant alleged
that he was discriminated against on the bases of race (African-American),
age (50), and in reprisal for prior EEO activity when:
Complainant was non-selected for the position of Contract Specialist.
Complainant filed a second complaint on March 4, 1998, in which he
alleged that he was discriminated against on the bases of disability
(back injury) and in reprisal for prior EEO activity when:
Complainant was denied parking privileges in the Forrestal Building
garage.
The AJ issued a decision in April 2000, without holding a hearing,
finding no discrimination.
Non-selection
The Administrative Judge found that the material facts were not in
dispute. With regard to the non-selection, the AJ found that the agency
articulated legitimate nondiscriminatory reasons for its actions which
complainant failed to establish were pretextual. In reaching this
conclusion, the AJ noted that despite receiving a highly successful
performance appraisal for the rating period immediately preceding his
non-selection, complainant did not score high enough to be named on the
referral list by the Staffing and Rating Panel. The AJ found that the
Selecting Officials (SOs) did not select complainant because he was
not named on the referral list as one of the �qualified� or �highly
qualified� applicants.
Denial of Parking Privileges
With regard to complainant's claim that the agency discriminated
against him when it denied him parking privileges in the Forrestal
Building garage, the AJ found that the agency articulated legitimate
nondiscriminatory reasons for its actions which complainant failed to
establish were pretextual. Specifically, the AJ found that in April
1997, the agency's Parking Committee sent a form letter to all employees
who had handicapped parking spaces in the Forrestal building garage
and requested each recipient to provide updated medical documentation
regarding their continued need of a handicapped parking permit. The AJ
found that the agency denied complainant's parking request because its
doctor determined that complainant failed to submit detailed medical
documentation to support a renewal of his handicapped parking permit.
The AJ found that the Parking Committee denied complainant's request for a
parking permit in July 1997, based on �unusual hours� because complainant
did not meet the criteria of the agency's parking regulations. The AJ
noted that complainant was granted a daily temporary parking permit for
his occasional late hours but that this permit was later revoked because
complainant abused the privilege. The AJ found that complainant's request
for a �car pool� permit was denied in November 1997, after the Parking
Committee discovered that complainant was not a member of a car pool
based on the statements of the proposed members of the car pool.
On appeal, complainant contends that the AJ erred when she failed to
afford him a hearing on his discrimination complaints. In addition,
complainant argues that an evidentiary hearing will show that the agency
failed to credit him as a fully disabled veteran applicant and otherwise
appropriately apply his educational background.
REVIEW OF SUMMARY JUDGMENT
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. An issue is "genuine" if the evidence is such that
a reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, complainant has failed
to establish the essential elements of his or her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988).
Our review of a case where summary judgment has been granted under
29 C.F.R. � 1614.109(g) is de novo. EEOC Management Directive (MD) -
110, Ch. 9, Sec. VI(B)(4)(b) (November 9, 1999). In that regard, we
conclude that the AJ erred in granting summary judgment on this record
where there were several questions of fact to be resolved.
Non-selection
On the issue of complainant's non-selection, complainant claimed that
his name was not included on the certification list because the panel
members that rated and ranked the candidates for these positions did not
rate and rank complainant's qualifications comparable to the rating and
ranking standards used to qualify the other candidates who applied for
the Contract Specialist position, GS-1102-13. Complainant states that
the panel members improperly applied his veterans preference status
and his educational background and argues but for this impropriety,
he would have been placed on the referral list for selection. We find
that these are factual issues which required the AJ to hold a hearing
and to weigh the evidence.
Denial of Parking Privileges
On the issue of the denial of parking privileges, complainant claimed that
he was discriminated against when the agency denied him a handicapped
parking space in the Forrestal building garage. The record contains
documentation by complainant's health care providers, documenting
his medical condition and requesting that complainant be afforded a
parking space to accommodate his medical condition. We find that the AJ
incorrectly addressed complainant's claim as a disparate treatment claim
of disability discrimination rather than a claim that the agency failed to
accommodate his disability. The Commission finds that there are genuine
issues as to the material facts of whether complainant was disabled
and whether the agency accommodated complainant's claimed disability.
Therefore, we find that it is appropriate to remand the entire parking
privilege denial claim for a hearing.
CONCLUSION
After a careful review of the record, we find that the AJ erred in
granting summary judgment and that there were genuine questions of fact
to be resolved at a hearing. Accordingly, we vacate the agency's final
action and REMAND this matter so that complainant may have a hearing on
the matter.
ORDER
The agency is ORDERED to take the following actions:
Within 15 calendar days of the date this decision becomes final, contact
the relevant EEOC District Office in writing to schedule a hearing on
the merits of the remanded claims.
Send a copy of the letter referenced in provision 1 of this Order to
complainant and to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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
February 16, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 Pursuant to the regulation set forth at 29 C.F.R. � 1614.109(i), where
an agency does not issue a final order within 40 days of receipt of an
AJ's decision in accordance with 29 C.F.R. � 1614.110, then the decision
of the AJ shall become the final action of the agency. In the present
case, the agency failed to issue a final order within 40 days of receipt
of the AJ's decision, thus, the AJ's decision shall be considered the
final action of the agency.