0120093392
08-10-2011
Christopher J. Casey, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Christopher J. Casey,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093392
Hearing No. 461-2008-00010X
Agency No. DAL070105SSA
DECISION
Complainant timely filed an appeal from the Agency’s July 9, 2009,
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 reasons set forth below the Commission AFFIRMS
in part and VACATES and REMANDS in part the Agency’s final order.
ISSUES PRESENTED
The issues presented before the Commission on appeal are (1) whether an
EEOC Administrative Judge (AJ) issuance of a decision without a hearing
on the matter related to the Agency’s failure to extend Complainant’s
detail was proper; and (2) whether Complainant’s complaint, in part,
should be subsumed within the class complaint certified by the Commission
in Jantz v. Social Security Administration, EEOC Appeal No. 0720090019
(August 25, 2010), request for reconsideration denied, EEOC Request
No. 0520110045 (January 4, 2011).
BACKGROUND
Complainant was employed by the Agency as an Attorney-Advisor (GS-12)
at the Agency’s Louisiana Office of Adjudication and Review facility in
Metairie, Louisiana at the time of events giving rise to this complaint.
On February 1, 2007, he filed a complaint in which he alleged he was
discriminated against on the basis of disability (visual impairment)
when his detail to a Group Supervisor position was not extended, and he
was denied the opportunity to apply for the Group Supervisor position
(GS-13) announced in Vacancy Announcement 316-06 because the Agency
posted it while he was on leave. Complainant amended his complaint on
May 1, 2007, when the Agency canceled Vacancy Announcement 255-06 which
advertised a Senior Attorney-Advisor (GS-13) position.
The Agency accepted all three issues for investigation, and at the
conclusion thereof, provided Complainant with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an
AJ or a final decision from the Agency based on the record. Complainant
requested a hearing therefore his case was transferred to the appropriate
EEOC District Office and assigned to an AJ. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s March 14,
2008, motion for a decision without a hearing and, on June 23, 2009,
issued a decision without a hearing finding that Complainant had failed
to establish discrimination. The Agency subsequently issued a final order
adopting the AJ’s findings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission should impose
sanctions against the Agency for presenting an apparently fraudulent
defense before the AJ in support of the Agency’s motion for a decision
without a hearing. Complainant’s remaining contentions speak to
his case-in-chief and as such will not be addressed separately but are
inherently included in the “Analysis and Findings” section below.1
The Agency requests that we affirm its final order. The Agency also
requests that we disregard Complainant’s supplementary appeal statement,
submitted on January 13, 2011, because it was provided to the Commission
well past the regulatory time period for filing additional information
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, at Chap. 9, § VI.B. (Nov. 9, 1999)
(providing that an administrative judge’s “decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] 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
Summary Judgment
Initially we note that our determination on the AJ’s decision to issue
a decision without a hearing is limited to Complainant’s claim that he
was discriminated against when the Agency did not extend his detail as
Group Supervisor. 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).
After reviewing the record in this case, we find that the record was
adequately developed, that no genuine issues of material fact remain, and
that no further fact-finding is necessary. We also find Complainant was
given ample notice, a comprehensive statement of the undisputed facts,
and the opportunity to respond. Thus, we have no reason to disturb
the AJ’s decision to issue a ruling without a hearing regarding
Complainant’s detail. We also find no merit to Complainant’s
contention, made on appeal, that the Agency put forth a “fraudulent
defense” before the AJ.
Disparate Treatment
Regarding the detail to the Group Supervisor position, the AJ found the
following relevant facts. On July 16, 2006, the Hearing Office Director
(HOD), an employee in Complainant’s office, went on maternity leave.
During the HOD’s leave period, the Group Supervisor moved into the HOD
position leaving the Group Supervisor position vacant. Complainant and
a co-worker (Co-worker) were given the opportunity to perform 30-day
details in the Group Supervisory position, with Complainant going first
because of seniority.
Complainant served his detail from September 5, 2006, to October 3, 2006.
See Administrative Judge’s June 23, 2009, Decision (AJ Decision) at
7-8. The Co-worker’s initial detail dates spanned October 4 through
November 2, 2006. At the conclusion of her detail, however, the HOD
had not returned from maternity leave and was not scheduled to return
to work until November 13, 2006. Id. When the HOD returned to work,
the Group Supervisor took leave for two weeks therefore the Co-worker
was allowed to continue serving in an Acting Group Supervisor capacity
until the end of November.
Complainant alleges that the Agency’s decision to extend the
Co-worker’s detail was discriminatory because he was not allowed the
same opportunity. In the absence of direct evidence of discrimination,
as is the case here, the allocation of burdens and order of presentation
of proof in a disparate treatment case is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
First, Complainant must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination, that is, a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802. Second, the Agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency
is successful, then Complainant must prove by preponderant evidence
that the legitimate reason(s) proffered by the Agency was a pretext for
discrimination. Id. at 256. We will assume Complainant has established
a prima facie case of discrimination on the bases of disability.
We now determine whether the Agency articulated a legitimate,
nondiscriminatory reason for not extending Complainant’s detail.
Burdine at 253. The Agency explained that Complainant’s detail was
not extended because there was no business reason to justify such a move.
In so doing, the Agency noted that Complainant himself was on paternity
leave from October 13, 2006, to November 9, 2006, and therefore, was on
leave on November 2, 2006, the day the Co-worker’s detail was scheduled
to end. In other words, the opportunity to extend Complainant’s detail
never presented itself.
In the final step in the analysis, the inquiry moves to consideration
of whether Complainant carried his burden to demonstrate pretext. In
order to prevail on his claim of discrimination, Complainant must
show, through probative and preponderant evidence, that the Agency's
articulated reason was a pretext for discrimination. Complainant can do
this by showing that the Agency's explanation is unworthy of credence
and that its actions were influenced by legally impermissible criteria,
i.e., animus toward him because of his disability.
Complainant’s only argument that the Agency’s reason is discriminatory
is that they could have contacted him while he was on leave to offer
him the detail. Like the AJ, we are not persuaded that the Agency’s
failure to contact Complainant to offer him a temporary position which
would have required him to work while he was in leave status is evidence
of discrimination. Complainant’s claim is therefore denied.
Complainant also alleges that the Agency’s posting of Vacancy
Announcement No. 316-06 while he was on leave constituted unlawful
discrimination. We note, as did the AJ, that Complainant’s leave
request was submitted after the Regional Chief ALJ had already requested
Human Resources to post the vacancy announcement; further, control of
exactly when the announcement would be posted was within the control
of Human Resources. We further note, as did the AJ, that Complainant
did not avail himself of a collective bargaining agreement provision
that allowed him to request that the Agency notify him of any vacancies
announced in his absence, nor did Complainant inquire about any posted
vacancies during his leave, although he acknowledged speaking by telephone
with his first-line supervisor (the Group Supervisor) during his leave.
Accordingly, we find that Complainant has not submitted evidence to even
sufficient to raise an inference of discrimination in connection with
this claim.
With regard to Complainant’s non-selection under Vacancy Announcement
255-06, we find that this claim must be remanded to the Agency for further
processing. We note that on January 4, 2011, the Commission reaffirmed
its decision in Jantz v. Social Security Administration, which certified a
class-complaint wherein the class was defined as “all current and former
employees with targeted disabilities at [SSA] who, on or after August 22,
2005, have applied for promotions, appeared on a best qualified list,
and have been denied opportunities for promotion.” See Jantz at 2.
Complainant avers that he is blind, which the Commission has identified
as a targeted disability. Complainant further avers that he was placed on
the best-qualified list for the Senior Attorney-Advisor position announced
in Vacancy Announcement 255-06, but was not selected for the position.
In light of our decision in Jantz, we find that the Agency should have
subsumed this claim into the Jantz class complaint.
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 regarding extending Complainant’s detail
and Vacancy Announcement 316-06; however, we VACATE and REMAND that
portion of the final order related to the non-selection under Vacancy
Announcement 255-06.
ORDER
Within thirty calendar days of the date this decision becomes final, the
Agency shall issue Complainant a letter stating that it will subsume the
non-selection under Vacancy Announcements 255-06 into the class certified
in Jantz v. Social Security Administration, EEOC Appeal No. 0720090019,
(August 25, 2010); request for reconsideration denied, EEOC Request
No. 0520110045 (January 4, 2011).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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 (R0610)
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 (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
August 10, 2011
Date
1 The AJ denied what he regarded as an attempt by Complainant to amend
his complaint. Complainant explicitly does not challenge this on appeal
and only mentions it to indicate that he never intended to amend his
complaint. See Complainant-Appellant’s Brief in Support of Appeal,
at 1-2.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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