Leonard B. Brewster, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 4, 2003
01A21298 (E.E.O.C. Dec. 4, 2003)

01A21298

12-04-2003

Leonard B. Brewster, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Leonard B. Brewster v. Department of Veterans Affairs

01A21298

December 4, 2003

.

Leonard B. Brewster,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A21298

Agency No. 99-1733

Hearing No. 250-A0-8347

DECISION

Complainant timely initiated an appeal from a final agency order

concerning his complaint of unlawful 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 appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

VACATES the agency's final order and REMANDS the matter for a hearing.

The record reveals that during the relevant time, complainant was employed

as a Laundry Worker at the agency's Veterans Administration Medical

Center, North Little Rock, Arkansas facility. Complainant sought EEO

counseling and subsequently filed a formal complaint on December 5, 2001,

alleging that he was discriminated against on the basis of disability

(Diabetes) when he was not selected for the position as a Laundry Worker

Supervisor WS-5 in March 1999.

At the conclusion of the investigation, complainant was provided a

copy of the investigative file and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing

finding no discrimination.

The AJ concluded that complainant established a prima facie case of

disability discrimination, because complainant is an individual with a

disability within the meaning of the law, he was minimally qualified

for the position in question but was not selected and someone who is

not disabled was selected.

The AJ concluded however, that the agency proffered legitimate,

nondiscriminatory reasons for its selection, namely, that the selectee

had more supervisory experience than both complainant and another

candidate. She further concluded that complainant did not come forward

with enough evidence that the agency's reasons for not selecting him were

a pretext for discrimination to create a genuine issue of material fact.

The agency's final order implemented the AJ's decision.

Complainant raises no new contentions on appeal, and the agency requests

that we affirm its final action implementing the AJ's decision.

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, summary judgment is not

appropriate. In the context of an administrative proceeding, an AJ may

properly consider a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

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. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, we find that the AJ erred when she

concluded that there was no genuine issue of material fact in this case.

In finding no discrimination, the AJ relied on the representations of

management officials as provided in their affidavits relating to the

reasons for their selection and disregarded contradictory evidence.

Our review of the selecting official's (S/O) statement reveals that she

considered the selectee's supervisory experience to be of paramount

importance in concluding that he was best qualified. The record

reflects that complainant had supervisory experience, including a

temporary promotion as a Laundry Worker Foreman. S/O acknowledged

that complainant had supervisory experience but she discounted it as

not extensive.<1> The vacancy announcement also identified three other

qualifying criteria covering knowledge of laundry equipment and processes,

the ability to train other employees and to prepare reports. Under all

of these criteria developed by S/O, complainant was rated higher than

the selectee. The previous supervisor also testified that complainant was

more qualified to perform the duties of the position than the selectee.

He rated complainant in a supplemental appraisal for the selection as

�above fully competent� in the area of supervisory abilities. Thus,

there is a genuine issue of material fact whether S/O's reasons for her

selection were a pretext for discrimination.

S/O's credibility regarding her knowledge of complainant's diabetic

condition is also at issue in light of evidence that complainant stated

he spoke with S/O specifically about his diabetes when he was absent

from work for a period of time. Complainant also stated that he spoke

of his condition in a meeting with S/O and the laundry section employees.

S/O denied any knowledge of complainant's condition. One of complainant's

co-workers corroborates that S/O was aware of complainant's condition when

he was absent. He further stated that S/O, in not selecting complainant,

wanted someone who was not sick and who would be present on the job.

This evidence is sufficient to raise a genuine issue of material fact

concerning whether S/O considered complainant's diabetes in making

her selection. In addition, complainant stated that he had been given

accommodations for his diabetic condition under his previous supervisor

but that they were withdrawn after that supervisor left. Assuming

the truth of this claim, it would add further support to complainant's

allegation that his new supervisor, who was both involved in the selection

process and served as the S/O, considered complainant's medical condition

in making the selection.

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 to

examine and cross-examine witnesses.� See EEOC Management Directive

(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; 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.� Mi S. Bang v. United States Postal Service,

EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United

States Postal Service, EEOC Request No. 05950628 (October 31, 1996);

Chronister v. United States Postal Service, EEOC Request No. 05940578

(April 23, 1995). In sum, there are unresolved issues as noted above,

which require an assessment as to the credibility of the selecting

and interviewing officials, co-workers, and complainant. Therefore,

judgment as a matter of law was not appropriate.

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, 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 in accordance

with this decision and the Order below.

ORDER

The agency shall submit to the Hearings Unit of the Memphis District

Office (Little Rock Area 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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 4, 2003

__________________

Date

1The record does not reflect that the

investigator took an additional statement from complainant in response

to S/O's statement in an effort to obtain evidence of pretext. This is

required for the investigation to be an appropriate investigation.

See Equal Employment Opportunity Management Directive 110 for 29

C.F.R. Part 1614 (EEO MD-110), ch.6 (November 9, 1999).