0120092641
12-15-2010
Jeffrey Stambaugh, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (U.S. Mint), Agency.
Jeffrey Stambaugh,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(U.S. Mint),
Agency.
Appeal No. 0120092641
Hearing No. 541-2008-00283X
Agency No. MINT-08-0002-F
DECISION
Complainant filed an appeal from the Agency's April 20, 2009, final
order 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. � 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 Toolmaker at the Agency's U.S. Mint facility in Denver, Colorado.
On October 25, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian), sex
(male), color (white), and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
On September 6, 2007, Complainant was not selected for a 120-day detail
to the position of Supervisory Die Manufacturing Specialist, because
his name had not been included on a list of interested candidates that
was forwarded to the selecting official.
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, the AJ assigned to
the case issued a decision without a hearing on April 7, 2009. In his
decision, the AJ found that Complainant had worked for the Agency since
1999 and that at the time of the investigation, Complainant was serving as
a Tool Supervisor. Administrative Judge's April 7, 2009 Decision, at 3.
The AJ observed that in July 2007, the Agency announced an opening
for a 120-day detail to the position of Supervisor, Die Manufacturing
Specialist. The AJ noted that Complainant applied for the detail.
On September 6, 2007, the selecting official (Selecting Official),
informed Complainant that he was not selected for the position and that
his name was not on the list of interested employees forwarded to him
for selection. The AJ noted that the Selecting Official stated that two
names appeared on the list of interested candidates forwarded to him by
the Plant Manager: Employee 1 and Employee 2. The Selecting Official
stated that he selected Employee 2 because Employee 1 had recently served
a similar detail to the position of Supervisory, Manufacturing Specialist.
The Plant Manager, the AJ found, admitted that she had made a mistake
when she failed to forward Complainant's name to the Selecting Official
for consideration. The Plant Manager received the list of names of
interested employees from the Agency's Human Resources Specialist. Id.
The AJ found that Complainant did not establish that his qualifications
were plainly superior to the qualifications of Employee 2 and that if the
Plant Manager had forwarded Complainant's name to the Selecting Official
for consideration for the detail, Complainant would not have for certain
been selected. Accordingly, the AJ found that the material facts were
not in dispute and that a decision without a hearing was proper under
the circumstances. The AJ found that Complainant did not establish that
discrimination on any basis occurred as alleged. Id. at 5.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Agency Final Order, April 20, 2009.
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 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 courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24,
1995).
We find that the AJ erred when he concluded that there was no genuine
issue of material fact in this case. In finding no discrimination,
the AJ relied on the statements of the Selecting Official and the Plant
Manager for the Agency's explanation of its decision to select Employee 2.
Specifically, the AJ relied on the Selecting Official's statement that
he selected Employee 2, because Employee 1 had previously been awarded a
detail. See Affidavit of the Plant Manager, March 13, 2008, page 1 (Report
of Investigation (ROI) at 101). The Selecting Official's recollection
of the selection is, however, at odds with the evidence provided by the
Plant Manager that the selection decision considered Employee 2 and other
interested employees. In her statement, the Plant Manager states that
she received three names for consideration: Complainant, Employee 2 (the
selectee), and Employee 3. Affidavit of the Plant Manager, February 28,
2008, page 6 (ROI at 111). This differs from the Selecting Official's
statement that the Selecting Official considered only Employee 2 and
Employee 1 for the position. Affidavit of the Selecting Official,
March 13, 2008, page 1 (ROI at 101).
In addition, notwithstanding the Plant Manager's admission that she
initially failed to accurately recollect the list of names she received
for consideration of the detail, see Affidavit of the Plant Manager,
February 28, 2008, page 6 (ROI at 111), we find the statements of the
Plant Manager and the Selecting Official are inconsistent with respect
to whether Complainant was considered by the Selecting Official for
selection. The Plant Manager states that Complainant was considered along
with Employee 2 and Employee 3, see id., while the Selecting Official
states that he only considered Employee 1 and Employee 2, see Affidavit
of the Selecting Official March 13, 2008, page 2 (ROI at 101).
We find that based on the statements of the Selecting Official and
the Plant Manager, the Agency has presented different reasons for the
selection decision. If the Selecting Official is correct, then Employee
2 was selected because Employee 1 had already served in a detail. If the
Plant Manager is correct, then Employee 2 was selected over Employee
3 and Complainant apparently for some other reason than because of
Employee 1's recent detail. We find that the basis for the Selecting
Official's selection of Employee 2 is a question of fact, material to
the disposition of Complainant's complaint.
We note 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 (November 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 (October
31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578
(April 25, 1995). In summary, there are simply too many unresolved
issues which require an assessment as to the credibility of the various
management officials and Complainant. Therefore, judgment as a matter of
law for the Agency should not have been granted as to whether Complainant
was denied the opportunity to serve a 120-day detail to the position of
Supervisory Die Manufacturing Specialist based on his race, color, sex,
or reprisal.
CONCLUSION
The Commission VACATES the Agency's final order and remands the complaint
to the Agency in accordance with this decision and the Order herein.
ORDER
The Agency shall submit to the Hearings Unit of the appropriate EEOC
field office the request for a hearing within 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 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 order 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 (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 (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
December 15, 2010
__________________
Date
2
0120092641
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120092641