0120110159
03-29-2011
David S. Pike, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David S. Pike,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110159
Hearing No. 520-2009-00373X
Agency No. 200H-0005-2009100446
DECISION
On October 2, 2010, Complainant filed an appeal from the Agency’s
September 1, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission deems this appeal as timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
VACATES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Health Systems Specialist at the Agency’s Allocation Resource Center
(ARC) in Braintree, Massachusetts. From 1999 to 2006, Complainant
served as the Chief Information Officer (CIO). The Agency underwent
a congressional-mandated reorganization in 2006 and all information
technology positions were placed under the Office of Information and
Technology (OIT). As a result of the reorganization, Complainant was
moved laterally to a Health Systems Specialist position. Complainant
continued to perform some CIO duties. Complainant and the Director of
Field Programs for OIT (D1) had discussions in 2007 regarding Complainant
being moved to OIT. D1 offered Complainant the opportunity to transfer
to OIT as CIO. Complainant’s response to those offers is in dispute;
however, the discussions did not result in Complainant’s reassignment.
In 2008, D1 and his supervisor decided to advertise a vacancy for the
CIO position. Complainant did not apply based upon his belief that he
would be reassigned to the position. On October 22, 2008, Complainant
learned that the CIO position at the ARC had been filled.
On October 24, 2008, Complainant contacted an EEO Counselor and filed
a formal EEO complaint on December 10, 2008, alleging that the Agency
discriminated against him on the bases of disability and age (48) when,
on or about October 22, 2008, Complainant discovered that he was not
reassigned to the position of ARC Chief Information Officer (CIO).
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s November 6, 2009 motion
for a decision without a hearing and issued a decision on July 27, 2010.
The AJ found that Complainant failed to establish a prima facie case of
discrimination on the alleged bases. Specifically, the AJ determined
that Complainant had not suffered an adverse action as he knowingly and
voluntarily elected not to submit his application under the Agency's
posted vacancy announcement. The AJ noted that Complainant did not
dispute that he failed to submit an application; rather, he maintained
that he had previously been promised the position and was advised that
he should not apply for other jobs. The AJ found that any reliance upon
past purported promises of future job assignments or transfers was beyond
the Commission’s jurisdiction to consider or enforce. Accordingly,
the AJ found that Complainant had not established a prima facie case of
discrimination and that Complainant therefore had not been discriminated
against as alleged. The Agency subsequently issued a final order adopting
the AJ’s decision finding no discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that he was given assurances by
management that he would be reassigned to his former CIO position.
Complainant contends that the Agency admitted that it was a mistake that
he was involuntarily moved out of the CIO position and he was assured
that it would be resolved. Further, Complainant asserts that as a Health
Systems Specialist, he has been unsuccessful in applying for positions
within the new OIT and in most cases, his applications were not even
acknowledged by the new organization. Accordingly, Complainant requests
that the final order be reversed. The Agency requests that the final
order be affirmed.
ANALYSIS AND FINDINGS
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 9-16 (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 9-15. (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”).
Decision without a Hearing
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 Commission notes that the hearing process is intended to be an
extension of the investigative process, designed to ensure that the
parties have "a fair and reasonable opportunity to explain and supplement
the record and, in appropriate instances, to examine and cross-examine
witnesses." See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (Nov. 9, 1999); see also 29
C.F.R. § 1614.109(e). “Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives Complainant of a full and fair
investigation of her claims.“ Bang v. U.S. Postal Serv., EEOC Appeal
No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv.,
EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal
Serv., EEOC Request No. 05940578 (April 25, 1995).
Complainant alleges that he was told multiple times that he would
be reassigned permanently to the CIO position. Further, Complainant
contends that he was offered the position on three separate occasions by
D1, had accepted it, and that D1 announced during a conference call that
Complainant was being reassigned to the position. ROI, Complainant’s
Aff., at 30, 33. Additionally, Complainant maintains that he was told
that he was listed on the organization chart as CIO and was specifically
told not to apply for any positions. Id. D1 avers that he twice met
with Complainant to discuss a reassignment to the CIO position and on
both occasions, Complainant declined any interest. ROI, D1’s Aff.,
at 11-13. A vacancy announcement was issued to fill the position and
Complainant maintains that he was told that there was no reason to
apply for it and that he was being reinstated to the position. ROI,
Complainant’s Aff., at 19. Relying upon those assurances and believing
that the CIO position was his, Complainant did not apply. Id. at 35.
In finding no discrimination, the AJ relied on Complainant’s failure
to apply for the CIO position. After a careful review of the record,
the Commission finds that the AJ erred when he concluded that there were
no genuine issues of material fact in this case. The record contains
conflicting testimony regarding whether Complainant was offered
a reassignment to the CIO position and whether he was discouraged
from applying when a vacancy announcement for the position was issued.
The Commission has found that, under certain circumstances, a complainant
might be aggrieved in a non-selection for a position for which he did
not apply where the complainant alleges that the Agency discouraged
him from applying or the application process was secretive. See Ozinga
v. Dep’t of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991).
As a result, the Commission finds that issuance of a decision without
a hearing was improper as genuine issues of material fact remain.
Therefore, judgment as a matter of law for the Agency should not have
been granted.
CONCLUSION
After a careful review of the record, including Complainant’s arguments
on appeal and arguments and evidence not specifically discussed in this
decision, the Commission VACATES the Agency’s final action and REMANDS
the matter to the Agency for further processing in accordance with this
decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The Agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.
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
March 29, 2011
Date
2
0120110159
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110159