0120110957
09-20-2012
Arthur L. Stone, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Arthur L. Stone,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120110957
Hearing No. 530-2010-00131X
Agency No. HS-09-TSA-005764
DECISION
Complainant timely filed an appeal from the Agency's November 5, 2010, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues on appeal are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against him on the basis of reprisal for prior EEO activity when it refused to return him to full duty, and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Federal Air Marshal. Complainant worked at the Agency's Philadelphia Field Office from April 21, 2002, until August 3, 2007. On June 8, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when it refused to return him to full duty as a Federal Air Marshal.
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 timely requested a hearing. On May 26, 2010, the Agency filed a Motion to Dismiss and Motion for a Decision without a Hearing. Complainant filed a Response in Opposition to the Agency's Motion on June 10, 2010. The AJ issued a decision without a hearing on October 8, 2010. 1
In his decision, the AJ found that, on August 3, 2007, Complainant was removed from his position as a Federal Air Marshal (FAM) because he could not perform his duties due to a physical condition. Complainant appealed his removal to the Merit Systems Protection Board (MSPB or Board) and alleged, in part, that the Agency discriminated against him based on disability. On December 4, 2007, an MSPB Administrative Judge issued an Initial Decision affirming the removal and finding that Complainant had not shown that the Agency discriminated against him on the basis of disability.
By letter dated May 23, 2008, Complainant asked the Agency to reinstate him to his former position because he had recovered from his medical condition. In a July 11, 2008, response, the Supervisor of the Agency's Human Resources Staffing and Compensation Branch notified Complainant of the Agency's determination that he was not eligible for reinstatement under 5 C.F.R. � 353.301(b).2 She stated that Complainant continued to receive compensation from the Department of Labor's Office of Worker's Compensation Programs (OWCP) and that the medical documentation Complainant submitted to support his reinstatement request did not show that Complainant was fully recovered. On June 20, 2008, Complainant filed a second appeal with the MSPB alleging that the Agency had retaliated against him for his prior MSPB participation by not restoring him to his former FAM position. On September 22, 2008, an MSPB AJ dismissed the second appeal for lack of jurisdiction on the grounds that Complainant continued to receive OWCP benefits and therefore was not fully recovered. The full Board denied Complainant's Petition for Review on March 4, 2009.
The EEOC AJ found that Complainant continued to receive OWCP benefits at the time that he filed the instant complaint. In a July 22, 2009, decision, OWCP stated that Complainant's injury occurred in April 2005 and found that Complainant was "disabled for the job [he] held on the date of injury" but was capable of working. The OWCP decision concluded that Complainant was entitled to compensation, noted that Complainant was working as a security officer at the time of the decision, and computed the compensation award in light of Complainant's earnings from his security officer work.
The AJ also found that Complainant established a prima facie case of reprisal discrimination. He concluded, however, that the Agency articulated legitimate, nondiscriminatory reasons for its action and that Complainant failed to show that the reasons were a pretext for discrimination. The Agency asserted that it followed federal law and the decision of another federal agency when it did not allow Complainant to return to work while he continued to receive OWCP benefits. Although Complainant made numerous arguments, he offered no evidence that the Agency's reasons were pretextual. The AJ noted, for example, that there was no evidence that the Agency was not required to follow the cited regulations or the Department of Labor's decision. Accordingly, the AJ found that the Agency did not discriminate against Complainant.3
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the arguments he raised in response to the Agency's Motion for a Decision without a Hearing. He argues that the Agency refused to recognize that he had recovered fully and failed to process his return to work in reprisal for prior EEO activity. The Agency raises no arguments on appeal.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both and AJ's determination to issue a decision without a hearing, and the decision itself, 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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 United States 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 Corp. 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, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly 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 the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant had an opportunity for discovery, he was given notice of the Agency's Motion for a Decision without a Hearing, and he responded to the Motion. There were no genuine issues of material fact in dispute. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ properly issued a decision without a hearing.
Denial of Complainant's Request for Reappointment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence. Burdine, 450 U.S. at 256.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
After a review of the record, we find that Complainant has established a prima facie case of reprisal. We also find that the Agency has articulated legitimate, nondiscriminatory reasons for its action and that Complainant has not shown the reasons to be a pretext for discrimination. As the AJ noted, Complainant has presented no evidence that the Agency was not following regulations concerning an employee's right to priority consideration for reappointment after the cessation of OWCP benefits. The record establishes that Complainant was receiving OWCP benefits at the time he sought to return to the Agency and that he was still receiving them when he filed the instant complaint. Complainant has offered no evidence that discriminatory animus motivated the Agency's denial of his request for reappointment while he was still receiving OWCP benefits. His bare assertions that the Agency engaged in reprisal do not establish that the Agency's articulated reasons for its action were pretextual. The AJ therefore properly determined that Complainant had not established his claim of discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we 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 (Nov. 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
September 20, 2012
Date
1 The AJ denied the Motion to Dismiss because Complainant stated a claim and his claim was not a collateral attack on the Department of Labor's workers' compensation process.
2 Office of Personnel Management regulations provide that an injured employee is entitled to priority consideration for restoration to a position if the employee "applies for reappointment within 30 days after the cessation of compensation." 5 C.F.R. � 353.301(b).
3 We note that, in his decision, the AJ referred to Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e et seq. (Title VII). Complainant's reprisal allegation, however, falls under the Rehabilitation Act. In this instance, however, the AJ's reference to Title VII rather than the Rehabilitation Act was harmless error.
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0120110957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110957