0120090325
04-13-2011
Benoit Brookens, Complainant, v. Ron Kirk, U.S. Trade Representative, Executive Office of the President, Office of the United States Trade Representative, Agency.
Benoit Brookens,
Complainant,
v.
Ron Kirk,
U.S. Trade Representative,
Executive Office of the President,
Office of the United States Trade Representative,
Agency.
Appeal No. 0120090325
Hearing No. 100-2006-00598X
Agency No. USTR-05-01; USTR-05-02
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 9, 2008 final order concerning
his equal employment opportunity (EEO) complaint alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
an applicant for employment with the Agency. On November 9, 2004,
Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and age (56) when:
1. He was not selected for the position of Policy Analyst (Labor),
GS-0131-14/15, advertised under Vacancy Announcement No. USTR 04-62-VM.
Additionally, on May 23, 2005, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race
(African-American), age (56), and in reprisal for prior protected EEO
activity when:
2. He was not selected for the position of Policy Analyst (Trade),
GS-0301-13/14/15, advertised under Vacancy Announcement No. USTR-05-13-DH.
On September 10, 2008, the Administrative Judge (AJ) granted the
Agency’s motion and issued a decision without a hearing. In her
decision, initially, the AJ assumed arguendo that Complainant had
established a prima facie case of discrimination on the alleged bases
and found that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the Director of Human Resources
(DHR) explained that no one was selected under either vacancy announcement
because she directed her staff to cancel both announcements before
selections were made. The vacancy announcements were cancelled
because of budget constraints. DHR maintained that the Agency had
advertised vacancies in anticipation of separations that did not occur.
DHR added that the Agency ultimately decided that it could not add
staff to its payroll and therefore cancelled the vacancy announcements.
The AJ determined that the record evidence established that budgetary
shortfalls prevented the Agency from filling several job vacancies during
this time period.
Next, the AJ concluded that Complainant had presented no evidence
establishing that the Agency’s reasons were pretextual. As a result,
the AJ found that Complainant had not been discriminated or retaliated
against as alleged. The Agency subsequently issued a final order adopting
the AJ’s decision.
On appeal, Complainant contends that three individuals were hired despite
the Agency’s claims that the vacancy announcements were cancelled
because of budgetary constraints. Accordingly, Complainant requests
that the Commission reverse the final order. The Agency requests that
the Commission affirm the final order.
ANALYSIS AND FINDINGS
Standard of Review
The Commission 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 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).
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. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which require
a hearing. The Commission concludes that, even assuming all facts in
favor of Complainant, a reasonable fact finder could not find in his
favor. Further, the Commission finds that Complainant’s arguments
on appeal are insufficient to create a dispute of material fact. As to
the first identified employee, the record reveals that he was hired for
a different, lower-graded position during the previous fiscal year and
before the vacancy announcements at issue were cancelled. The second
identified employee was hired under a different vacancy announcement
and for a position in a different office. Finally, the third identified
employee was already an Agency employee and was assigned the duties of
the position in claim (2) resulting in no additional cost to the Agency.
Complainant does not dispute those facts. Therefore, no genuine issues
of material fact exist and the AJ’s issuance of a decision without a
hearing was appropriate.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec'y Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the evidence
in the light most favorable to Complainant, the Commission finds that
Complainant has not shown that any of the Agency’s actions were
based on discriminatory animus or that the reasons articulated by the
Agency for its actions were mere pretext to hide unlawful discrimination.
Accordingly, the Commission finds no reason to disturb the AJ’s issuance
of a decision without a hearing.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
April 13, 2011
Date
2
0120090325
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090325