01A21298
12-04-2003
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).