Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120121003 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120121003

Hearing No. 570-2010-01140X

Agency No. HS-10-CIS-004681

DECISION

Complainant filed an appeal 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 Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. When the Agency failed to
issue a Final Order within 40 days of the issuance of a decision without a hearing by the
Administrative Judge (AJ) on October 11, 2011, the AJ's Decision became the Agency's Final
Order. 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 a Manager and
Central Region Branch Chief at the Agency’s facility in Dallas, Texas. On May 24, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Caucasian) and disability when:

Effective February 12, 2010, Complainant was removed from his position as Central
Region Branch Chief Office of Information Technology.

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. Over Complainant's objections,
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the AJ assigned to the case granted the Agency’s September 23, 2011, motion for a decision
without a hearing and issued a decision without a hearing on September 30, 2011.1

In his Decision, the AJ found the undisputed evidence showed that Complainant was reassigned
from his position as Central Region Branch Chief to another position because Complainant’s
supervisor (S1) and the Deputy Chief Information Officer (M1) had received complaints from
Complainant’s subordinates, and reports that Complainant had assigned inappropriate work to
a federal employee. The AJ found Complainant did not present evidence to rebut the evidence
that two of his subordinates had complained about him to his superiors. The AJ found that
Complainant presented no evidence that other similarly situated employees not in his protected
groups were treated better under similar circumstances, nor any evidence that his race or
disability played any role in the decision of the Agency to reassign Complainant from his
supervisory position. The AJ noted that Complainant disagreed with the Agency’s business
decision to reassign him and believed that he was reassigned because he issued a lowered
performance evaluation to an African-American employee. The AJ noted that the decision to
reassign Complainant occurred on September 8, 2009, before Complainant issued the specified
performance evaluation at the end of the fiscal year on September 30, 2009.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s Final Action pursuant to 29 C.F.R.
§ 1614.109(i).

On appeal, Complainant states that the AJ’s notice regarding his intent to issue a decision
without a hearing did not include a statement of undisputed facts so that Complainant was left
to guess which facts the AJ intended to rely upon in his decision and was thus denied an
opportunity to effectively respond to the AJ’s notice.

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

1 The AJ’s Decision is dated September 30, 2011, and is accompanied by an Order Entering
Judgment and certificate of service to the parties dated October 11, 2011.
0120121003

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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).

As a preliminary matter, we discern no abuse of discretion by the AJ regarding his notice and
decision to issue a decision without a hearing as the record was adequately developed for
issuance of a decision without a hearing. We further discern no abuse of discretion concerning
the AJ's failure to specifically set forth a statement of undisputed facts. Moreover, we find that
the AJ did set forth undisputed facts in his Decision.

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.

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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). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

In the instant case, we find the AJ properly issued his decision without a hearing as the
material facts are not in dispute. We assume without so finding, that Complainant is a
qualified individual with a disability. We find, as did the AJ, no dispute that Complainant was
the subject of one or more complaints received by M1 from Complainant’s staff. We find the
undisputed evidence shows that Complainant was implicated in one or more disputes regarding
the assignment of appropriate work for a federal employee and contract employees. We
concur with the AJ that Complainant did not present any evidence to suggest, much less prove,
that his race or disability motivated the Agency’s decision to remedy the circumstances
between Complainant and the employees he supervised by removing Complainant from the
immediate workplace.

Additionally, Complainant states he was never informed of the details of still other informal
complaints that were reportedly received by M1 or S1. Resolving all reasonable inferences in
Complainant’s favor, we find the undisputed evidence shows that at least one EEO complaint
was filed with the Agency in which Complainant was identified as the responsible management
official. We find Complainant presented no evidence from which an inference that his race or
disability motivated the Agency to remove Complainant from his supervisory position. We
therefore decline to disturb the AJ’s decision without a hearing finding no race or disability
discrimination.

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s Final Action finding no
discrimination.

0120121003

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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.

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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

March 26, 2013
Date