0120093668
08-29-2012
Erica C. James, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
Erica C. James,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120093668
Hearing No. 461-2009-00026X
Agency No. OCFO-2008-00151
DECISION
On September 1, 2009, Complainant filed an appeal from the Agency's August 10, 2009, final order concerning her 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the complaint for an administrative hearing.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against her on the bases of race (African American) and reprisal (prior EEO activity) when it did not select her for a position of IT Specialist (Applications Software), and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Computer Assistant, GS-0335-09, Technology Service Division, Scheduling Section Branch, at the Agency's National Finance Center in New Orleans, Louisiana. She engaged in prior EEO activity when she filed EEO complaints in 1995 and 1998 and when she wrote witness statements for two complainants in 2007.
On January 11, 2008, Complainant file a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), reprisal (prior EEO activity), and physical disability when it did not select her for the position of IT Specialist (Applications Software). GS-2210-07. Report of Investigation (ROI) Exhibit (Ex.) 1. By letter dated March 24, 2008, the Agency accepted the following issue for investigation:
Whether the Agency subjected the Complainant to discrimination based on race (African American) and reprisal (previous EEO activity) when on November 20, 2O07, she was not selected for IT Specialist (Application Software), GS-2210-7/9/11, announced under vacancy announcement number DS132634.
Id. Ex. 3.1
The record reveals that the Agency announced a vacancy for an entry-level IT Specialist (Applications Software) in March 2007 and used the announcement to fill two vacancies in two different sections. See ROI Exs. 11, 5 at 2, 6 at 2, 7 at 2. A July 11, 2007, Roster of Noncompetitive Eligibles listed one candidate, a Caucasian male (C1). Id. Ex. 2 at 11. A July 11, 2007, Office of Personnel Management (OPM) Certificate of Eligibles listed four candidates: an African American female (C2) received a 106 rating, Complainant received a 104 rating, a Caucasian female (C3) received a 102 rating, and a Caucasian male (C4) received a 102 rating. Id. Ex. 12 at 1-3.
For the first vacancy, the Selecting Official (SO1) and the Reviewing Official (RO) conducted telephone interviews. The Agency offered the position to C1, but he declined the job. Id. Ex. 5 at 3. The Agency then offered the position to C3, who also declined the job. Id. Ex. 12 at 3. A second, August 2007 OPM Certificate of Eligibles listed C2 (106 rating), Complainant (104 rating), and C4 (102 rating). Id. at 5-7. C4 was offered and accepted the position. Id. at 7.
For the second vacancy, a September 2007 OPM Certificate of Eligibles listed C2 (106 rating), Complainant (104 rating), and a Caucasian male (C5) (102 rating). Id. Ex. 12 at 8-10. The Selecting Official (SO2) interviewed C2 and Complainant in person and C5 by telephone. See id. Ex. 6 at 3. C5 was offered and accepted the position. Id. Ex. 12 at 10.
SO1 told the EEO Investigator that she selected C1 because he already had a job in programming, and C4 because he had experience with Common Business-Oriented Language (COBOL) and with writing a payroll application. She stated that she did not select Complainant because Complainant did not have payroll experience and, although payroll writing was not a necessity, the experience made C4 better qualified for the position. She also stated that she did not know Complainant, did not know Complainant's race, and was not aware of Complainant's prior EEO activity. Id. Ex. 5.
SO2 told the EEO Investigator that he selected C5 because C5 had 30 years of experience in the field, had recently retired from teaching computer science and mathematics at the college level, had several degrees in mathematics and computer science, had written numerous complicated systems, and knew COBOL. He stated that Complainant was unable to answer some interview questions to the best of her ability and should have known more about Job Control Language (JCL) and basic programming. He also stated that he was not aware of Complainant's prior EEO activity. Id. Ex. 6 at 3-4.
RO told the EEO Investigator that C4 and C5 had more skills than Complainant. She stated that C4 was retired military and had returned to school and taken several computer classes. She also stated that C5 was qualified for a higher grade than that for which he had applied and that his skill sets rivaled those of some senior people. According to RO, Complainant had some of the skill sets that the Agency used but was not selected because C5's skills far exceeded those of everyone else. RO stated that she was not aware of Complainant's race or prior EEO activity. Id. Ex. 7 at 3-4.
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 July 9, 2009, the AJ issued a decision without a hearing in favor of the Agency. According to the AJ's decision, the following chronology of events occurred after Complainant's hearing request:
On May 7, 2009, the AJ issued a Notice of Intent to Issue a Decision without a Hearing in Favor of the Agency (Notice of Intent).
On June 25, 2009, the Agency filed a Motion for Summary Judgment, which the AJ treated as a response to the Notice of Intent.
In the decision, the AJ stated that Complainant had not responded to the Notice of Intent and that the time for responding had elapsed. AJ Decision at 2.
The AJ found that Complainant applied for the IT Specialist position, two vacancies existed, Complainant was qualified for the position, she was a member of a protected group (African American) and had engaged in prior EEO activity, and the position was filled by a White applicant. The AJ also found that Agency officials interviewed Complainant by telephone, the interviewers did not know Complainant personally, they did not know of her prior EEO activity or race, and the deciding official did not know Complainant's race or EEO activity. Further, the AJ found that the selecting official chose the selectee because of his Common Business Oriented Language (COBOL) and payroll experience and that Complainant lacked experience in writing payroll application or COBOL. Id. at 3.
The AJ concluded that Complainant failed to establish a prima facie case of race or reprisal discrimination because the selecting official was not aware of her race and prior EEO activity. He also concluded that Complainant failed to show that the Agency's articulated reason for its action was a pretext for discrimination. In that regard, the AJ noted that Complainant had produced no evidence that her qualifications were so superior to the selectee's that discriminatory or retaliatory motivation could be inferred. Id. at 6.
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.
Upon receipt of this appeal, the EEOC sent a September 16, 2009, letter to the Agency asking it to provide the EEOC with the complete record pertaining to the complaint at hand within 30 calendar days of notification of this appeal. See 20 C.F.R. � 1614.403. The letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. A follow-up request for the missing documents was sent via e-mail on February 3, 2012. Commission records do not reflect that the Agency complied with this request.
On July 3, 2012, the EEOC issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed (Notice to Show Cause). The Notice to Show Cause stated that the following documents were missing from the appellate file:
All motions, pleadings, correspondence, etc., generated during the hearing process, including the Administrative Judge's Notice of Intent to Issue a Decision without a Hearing, dated May 7, 2009, and the Agency's Motion for Summary Judgment, dated June 25, 2009.
In addition, the Notice to Show Cause ordered the Agency to submit the complete file or provide good cause, through evidence and argument, why it could not do so. Specifically, the Notice to Show Cause provided, in pertinent part, that "[t]he Agency is hereby notified that if it fails to submit the missing documents or show good why it cannot do so, OFO may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate." To date, the Agency has not submitted the requested documents.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, argues that the AJ erroneously granted summary judgment to the Agency. She argues that, in the Notice of Intent, the AJ who was previously assigned to her case erroneously stated that Complainant and the other candidates were interviewed by telephone. She asserts that her representative made several unsuccessful attempts to reach the previous AJ to point out the error and subsequently contacted the current AJ. According to Complainant, the current AJ refused to listen when her representative explained the error in the Notice of Intent, indicated that he intended to grant summary judgment, and stated that Complainant could file an appeal upon receipt of the Agency's final order.
Complainant also argues that she was better qualified than the other applicants. She asserts that she works in a section that has daily contact with the selecting officials, that almost all of the section's employees are African American, and that the selecting officials therefore were aware of her race, sex, disability, and prior EEO activity.
The Agency raises no arguments 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 both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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
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 United States 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 Corp. 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, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly 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 this case, we find that the Agency's failure to submit the complete record makes it impossible for us to determine whether the AJ appropriately issued a decision without a hearing. To review the AJ's decision, we must have the Notice of Intent and the Agency's Motion for Summary Judgment. For example, without the Notice of Intent, we cannot determine whether Complainant received a comprehensive statement of the allegedly undisputed material facts. Similarly, we cannot determine whether the Agency argued in its summary judgment motion that SO2 did not know Complainant's race. That information is especially important here, where the AJ concluded that the selecting official was not aware of Complainant's race.
Based on the Agency's failure to submit the complete record, we find that the imposition of sanctions is warranted. Vu v. Social Security Admin., EEOC Appeal No. 0120072632 (Jan.20, 2011) (sanctions appropriate where Agency failed to provide this Commission with motions and responses in support and opposition to decision without a hearing). The Agency was on notice that sanctions were possible if the Agency failed to submit the complete record.
Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to remedy equitably the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
In the instant matter, the Commission finds that the Agency failed to comply with the Commission's request to submit the entire record. The Commission is unable to determine whether the AJ properly issued a decision without a hearing due to the incomplete record. Based on the foregoing, we find that the most appropriate sanction is to remand this matter for a hearing before an AJ.
We furthermore find that an additional sanction is warranted. The Agency is hereby ordered to notify Complainant of his entitlement to retain an attorney for the hearing, and the Agency will be required to pay Complainant's attorney's fees and costs for the entire hearing process. See Vu, supra.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order implementing the AJ's decision without a hearing finding no discrimination and we REMAND this matter for a hearing in accordance with the Order below.
ORDER
1. Within ten (10) calendar days of the date this decision becomes final, the Agency shall notify Complainant that he is entitled to be represented by an attorney of his choice during the entire hearing process. The Agency shall pay for his attorney's fees incurred during the hearing process, regardless of the outcome of his case. The hearing process commences as soon as an AJ receives Complainant's file and does not conclude until the AJ issues a decision on the complaint. Complainant shall choose an attorney within thirty (30) calendar days of the date he receives the Agency's notification.
2. The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's New Orleans Field Office 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 AJ shall hold a hearing and 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
August 29, 2012
Date
1 The letter did not explain why the Agency rejected Complainant's allegations of sex and disability discrimination but stated that Complainant had seven days within which to notify the Agency if she disagreed with the defined claim. The record contains no evidence, and Complainant does not argue on appeal, that she so notified the Agency. Complainant also alleged that the Agency discriminated against her on the basis of veteran's preference. The Agency noted in the letter that veteran's preference was not a covered basis under Title VII.
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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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