Leroy J. Holdmeyer, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 12, 2003
05a31021final (E.E.O.C. Dec. 12, 2003)

05a31021final

12-12-2003

Leroy J. Holdmeyer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Leroy J. Holdmeyer v. Department of Agriculture

05A31021

12/12/03

.

Leroy J. Holdmeyer,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Request No. 05A31021

Appeal No. 01A22894

Agency No. 000411

Hearing No. 160-A0-8549X

DENIAL OF REQUEST FOR RECONSIDERATION

On June 6, 2003, Leroy J. Holdmeyer (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission or

EEOC) to reconsider the decision in Leroy J. Holdmeyer v. Department of

Agriculture, EEOC Appeal No. 01A22894 (May 8, 2003). EEOC regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. � 1614.405(b). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following two criteria:

the appellate decision involved a clearly erroneous interpretation of

material fact or law; or the decision will have a substantial impact

on the policies, practices or operations of the agency. Id. For the

reasons set forth herein, complainant's request is granted.

BACKGROUND

In the previous decision, the Commission dismissed the appeal because we

determined that the appeal raised the same claims as those alleged in

a civil action complainant filed in a U.S. District Court. On request

for reconsideration, complainant claims that the civil action does

not encompass the instant complaint; rather, the civil action only

raises those issues contained in a previously filed complaint (Agency

No. 990970).<1> The agency did not file a response to complainant's

request for reconsideration.

ANALYSIS

EEOC Regulation 29 C.F.R. � 1614.409 provides that the filing of a

civil action "shall terminate Commission processing of the appeal."

Commission regulations mandate dismissal of the EEO complaint under these

circumstances so as to prevent a complainant from simultaneously pursuing

both administrative and judicial remedies on the same matters, wasting

resources, and creating the potential for inconsistent or conflicting

decisions, and in order to grant due deference to the authority of

the federal district court. See Stromgren v. Department of Veterans

Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of

Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,

EEOC Request No. 05880114 (October 25, 1988). The proper inquiry to

determine whether the dismissal is warranted based on the filing of a

civil action is "whether the issues in the EEO complaint and the civil

action are the same, that is, whether the acts of alleged discrimination

are identical." Everett v. Dept. of Army, EEOC Request No. 05930234

(August 5, 1993)(citing Bellow v. United States Postal Service, EEOC

Request No. 05980913 (November 27, 1989).

After a careful review of the entire record, including an examination

of the complaint filed in the civil action, we find the prior decision

erroneously determined that the instant complaint alleged the same

claims as those contained in the civil action. Rather, an examination

of the record reveals that the civil action alleges discrimination when,

among other things, complainant was not selected for a Providence Rhode

Island, Circuit Supervisor vacancy in 1998. The instant complaint

alleges complainant was retaliated against for filing the first EEO

complaint when he was not selected for a Circuit Supervisor position

in 1999. Accordingly, since we find that the appeal should not have

been dismissed, we will now examine the merits of the complaint.

On March 1, 2000, complainant filed a complaint in which he alleged he

was discriminated against on the basis of reprisal (prior EEO activity),

when: (1) he was denied the opportunity to act in the Circuit Supervisor

position in Middlebury, Connecticut; and (2) when, on October 22, 1999,

he was not selected for the Circuit Supervisor position in Providence,

Rhode Island. After an investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ).

The AJ issued a decision without a hearing since she determined there

were no material facts in dispute. Specifically, the AJ found that

complainant failed to present any evidence that would raise a dispute

as to the reasons for the nonselection. Indeed, complainant failed to

dispute the selecting official's reasons for choosing the selectee,

which were described in detail in an affidavit. Furthermore, the AJ

found no one was selected to act in the Middlebury, Connecticut position.

Therefore, the AJ found complainant failed to establish an inference of

discrimination with respect to this issue.

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 summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

After a careful review of the record, the Commission finds that grant of

summary judgment was appropriate, as no genuine dispute of material fact

exists. We find that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

Further, construing the evidence to be most favorable to complainant, we

note that complainant failed to present evidence that any of the agency's

actions were motivated by a retaliatory animus toward complainant.

CONCLUSION

Accordingly, after a review of complainant's request for reconsideration,

the previous decision, and the entire record, the Commission finds that

complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to grant the complainant's request.

The decision of the Commission in Appeal No. 01A22894 is vacated, and

the agency's final decision is affirmed. Complainant is provided with

a right to request reconsideration again because we are examining the

merits of his complaint for the first time.

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 (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. You have the

right to file a civil action in an appropriate United States District

Court within ninety (90) calendar days from the date that you receive this

decision. 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.

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

12/12/03

Date

1Before filing in District Court, complainant appealed his first complaint

to this office. See Holdmeyer v. Dept. of Agriculture, EEOC Appeal

No. 01A05256 (August 6, 2002).