0120083589
07-17-2012
Judith Lakomy, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Judith Lakomy,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120083589
Hearing No. 560-2007-00167X
Agency No. FNP-2006-052
DECISION
On August 11, 2008, Complainant filed an appeal from the Agency's July 16, 2008 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 accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge correctly determined that the record was adequately developed for summary disposition.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in a term appointment with a not-to-exceed date of September 18, 2005 as a Park Ranger (Interpretation), GS-0025-09, at the Agency's Lewis and Clark National Historic Trail in Omaha, Nebraska. The Supervisory Park Ranger was Complainant's First Level Supervisor (S1). On October 14, 2005, Complainant contacted an EEO Counselor. On February 28, 2006, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity.
In an attachment to the formal complaint, Complainant specified that she was challenging two types of adverse employment actions: (1) S1's initial decision not to renew her term position;1 and (2) S1's subsequent decisions not to hire her for several GS-05 and GS-09 Park Ranger positions. Report of Investigation (ROI), at 19, 33. Complainant also submitted documentation,2 which she previously had provided to the EEO Counselor, regarding those non-selections. Id. at 67-76.
The Agency accepted for investigation only one claim: that it discriminated against Complainant on the bases of disability and reprisal when it did not renew her term position. Id. at 150. The Agency did not mention Complainant's non-selection claims. Id. In a rebuttal statement, Complainant again raised her non-selection claims. Specifically, Complainant asserted that S1 had not selected her for the GS-05 Park Ranger positions because of her EEO complaint. Id. at 282.
The Agency investigated only Complainant's non-renewal claim, and provided her with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ), but the Agency moved for a decision without a hearing. In her response to the Agency's motion, Complainant reiterated her non-selection claims and emphasized that she had provided relevant information to the EEO Counselor in January 2006.
Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on July 9, 2008. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that she was subjected to discrimination as alleged.
In her decision, the AJ initially noted that Complainant alleged two things: (1) disability discrimination when S1 did not renew her term position; and (2) reprisal discrimination when S1 refused "to consider her for future positions with the Agency." AJ Decision, at 1. The AJ, however, found that Complainant failed to state a claim of reprisal because she had not participated in any prior protected EEO activity, other than the filing of the instant complaint. Id. at 13. The AJ concluded that an August 30, 2005 mediation meeting, which Complainant cited as the reason for S1's refusal to consider her for future positions, did not constitute protected activity because no part of the meeting involved allegations of discrimination. Id.
On appeal, Complainant, among other things, asserted that her reprisal claim involved her non-selections for positions she applied to after her term was not renewed. The Agency did not submit a brief or statement in opposition to Complainant's appeal.
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 Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an AJ'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 EEO MD-110, at Ch. 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").
AJ's Issuance of a 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). 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 AJ 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 AJ 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 (Feb. 24, 1995). "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 (Mar. 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 (Apr. 25, 1995). 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 EEO MD-110, at Ch. 7, � I.; see also
29 C.F.R. � 1614.109(e).
After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing because the record was not adequately developed for summary disposition. The record reflects that Complainant properly raised her non-selection claims in her formal complaint and continued to raise them in her rebuttal statement, in her response to the Agency's motion for a decision without a hearing, and on appeal. As the Agency did not accept those claims for investigation, however, the record contains little documentation regarding the non-selections. For example, the record does not include copies of the vacancy announcements, the position descriptions, the candidates' applications, or the selection certificates. Moreover, the record contains no sworn testimony from the selecting officials about why they chose the selectees over Complainant.
Complainant averred that, at an August 5, 2005 meeting with S1, she told him that she felt his decision to not renew her term position was based on an "EEO reason" - her disability. ROI, at 171. As noted above, the AJ focused on an August 30, 2005 mediation meeting in deciding that Complainant had not engaged in EEO protected activity not the earlier August 5, 2005 meeting between Complainant and S1. We find that Complainant's alleged statements at the August 5, 2005 meeting could be construed as oppositional EEO activity. On remand, we advise the AJ to consider the above to determine whether it constitutes prior EEO activity.
In summary, we find that the record was inadequately developed. An "appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." EEO MD-110, at Ch. 6, � I. Therefore, judgment as a matter of law for the Agency should not have been granted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission VACATES the Agency's final order and REMANDS the entire complaint to the Agency in accordance with this decision and the Order below.3
ORDER
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 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 (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
__7/17/12________________
Date
1 According to Complainant, S1 informed her of his decision in an August 5, 2005 meeting. ROI, at 170.
2 The documentation included letters, dated December 2005 and January 2006, notifying Complainant of her non-selections and a list of the relevant vacancy announcement numbers. Id. at 70-72, 76.
3 In order to avoid fragmentation, we will not address the merits of Complainant's remaining claim (non-renewal of her term position) at this time.
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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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