0120120618
09-04-2014
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120120618
Hearing No. 410-2010-00095X
Agency No. HS-09-CBP-006969
DECISION
Complainant filed an appeal from the Agency's September 21, 2011, final order concerning her 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 deems the appeal timely1 and accepts it 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 presented are whether the Administrative Judge properly issued a decision without a hearing, and whether he properly found that Complainant had not established that the Agency discriminated against her as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Patrol Officer trainee/intern, GS-1895-07/9, at the Agency's Port of Entry in Atlanta, Georgia.
On September 3, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (illiotibial band and popliteal tendonitis) when:
1. on June 1, 2009, she learned she was not selected for the position of Import Specialist, GS-1889-07, advertised under Vacancy Announcement Number MHCDE (ACWA)-251682-KE; and
2. by letter dated June 10, 2009, she was terminated during her trial period from the position of CBP Officer (CBPO), GS-1895-09, assigned to the Atlanta Port of Entry, rather than being reassigned to a non-CBPO position as a reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On October 26, 2010, and July 19, 2011, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a statement in opposition to the Agency's Motion on August 12, 2011. The Agency filed its Reply to Complainant's statement in opposition on August 16, 2011. The AJ assigned to the case issued a decision without a hearing on September 1, 2011.
The AJ found the following relevant facts: Complainant was hired by the Agency and started work on September 4, 2007, in the CBP Officer trainee/intern program. The excepted appointment was for two years, and upon successful completion of the internship, Complainant could be noncompetitively converted to a career or career-conditional appointment. Failure to complete the internship would result in termination of employment. Complainant worked for 30 days at the Port of Atlanta after her appointment and then entered the Federal Law Enforcement Training Center (FLETC) on or about October 4, 2007. On October 17, 2007, while engaged in running exercises, Complainant injured her leg and was later diagnosed with a right tibia stress fracture. On November 16, 2007, Complainant was removed from further participation in class at FLETC, and was sent back to the Port of Atlanta. She was also notified that, due to her medical restriction, she would be unable to fully participate in the CBPO training program and was ineligible to receive a Certificate of Graduation for her training. The Agency assigned her to light-duty work.
Complainant applied for the position of Import Specialist, GS-1889-05/07, in April 2009. She was found qualified and was referred to the selecting official for further consideration. On June 1, 2009, she was notified that the selecting official had returned the certificate with no selection made. A vacancy had been anticipated for the position, but did not materialize, so there was no open position which needed to be filled. Additionally, even had there been a vacancy, at least one veteran with veteran's preference was ahead of Complainant on the best-qualified list. By letter dated June 10, 2009, Complainant was notified that her employment was being terminated, due to her excepted service appointment as an intern and the requirement of a satisfactory completion of a two-year trial period. The letter explained that the underlying reason for her termination was that she did not successfully complete the required basic training at FLETC.
The AJ assumed, without deciding, for the purposes of analysis, that Complainant was an individual with a disability within the meaning of the Rehabilitation Act. He found, however, that Complainant was not a qualified individual under the statute and therefore was not entitled to a reassignment to a different position. He found that she never was able to adequately perform the essential functions of her position, either with or without an accommodation, because she was unable to complete the basic training program, and therefore the Agency was not required to offer her reassignment. The AJ noted that the Agency accommodated Complainant's injury for one and one-half years in a light-duty position. As to claim 1, the AJ found that the Agency offered legitimate, nondiscriminatory reasons for not selecting Complainant for the Import Specialist position, in that no vacancy actually occurred to be filled, and Complainant would not have been selected in any event, as a veteran with preference was on the list of candidates ahead of her.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not file any statement or brief in support of her appeal. The Agency did not file any brief in opposition to Complainant's appeal other than to argue that her appeal was untimely filed.
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 an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 the 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 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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. There were no material facts in dispute such that the AJ would have needed a hearing in order to make credibility findings.
Disparate treatment
To prevail in a disparate treatment claim, 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 or she 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department 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).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. Assuming that Complainant is an individual with a disability, we find that the Agency was not required to reassign her to a different position at the end of her excepted service appointment of two years, and that her termination was the result of her failure to complete the training program for the CBP Officer position. The Agency did accommodate Complainant with light-duty work during the duration of her appointment after she was no longer able to engage in the physical activity required by the CBP Officer position. We also find that the Agency offered legitimate, nondiscriminatory reason for not selecting Complainant for the Import Specialist position, which Complainant has not shown to be pretext for discrimination based on her physical impairment.
CONCLUSION
Based on a thorough review of the record and in the absence of contentions from Complainant on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against as alleged.
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.
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 4, 2014
Date
1 The Agency submitted a brief in which it argued that Complainant's appeal was untimely filed. It supplied proof of her receipt of the final Agency decision on September 26, 2011. We note however, that Complainant was represented by legal counsel at the time of the issuance of the final Agency decision, and her counsel was not served with the Agency decision at that time. Under 29 C.F.R. � 1614.605(d), "When the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of materials shall be computed from the time of receipt by the attorney." The Agency has not shown the date of receipt of the Agency decision by Complainant's attorney, and we therefore deem her appeal to be timely filed.
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0120120618
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120618