01A33323_r
08-21-2003
Lynn A. Rogers, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Lynn A. Rogers v. Department of the Air Force
01A33323
August 21, 2003
.
Lynn A. Rogers,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A33323
Agency No. 9M0R02008
Hearing No. 380-A3-8040X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled
matter. Complainant timely initiated the appeal 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. In his complaint, complainant alleged that
the agency discriminated against him on the basis of disability and in
reprisal for prior EEO activity when:
(1) On February 15, 2002, complainant's supervisor mocked complainant's
hearing impairment by saying "what" and laughing; and
On February 25, 2002, complainant's flight chief and supervisor made
disciplinary entries on complainant's AF Form 971 and placed him on
administrative leave.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The appeal record reveals that on February 20, 2003, the AJ
issued a notice of intent to issue a decision without a hearing wherein
she notified the parties that she had determined that a decision without
a hearing may be appropriate because no material facts were in dispute.
The four-paragraph notice further stated that the agency articulated
nondiscriminatory reasons for each of the actions and the record "appears
devoid of any evidence demonstrating that the Agency's explanations are a
pretext masking intentional discrimination." The AJ warned complainant
that failure to respond to her notice may result in summary judgment in
favor of the agency, or in the alternative, remand of the matter to the
agency for a final agency decision.
In a three-sentence decision dated March 18, 2003, the AJ found no
discrimination. The brief decision noted that a notice of intent
to issue a decision without hearing had been issued, but complainant
failed to respond to the notice. The decision stated that "therefore,
for the reasons stated in my February 20, 2003 Notice of Intent to Issue
a Decision Without a Hearing, I hereby GRANT summary judgment in favor
of the agency...."
First, an AJ may properly issue a decision without a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003); 29 C.F.R. � 1614.109(g). Second, the
administrative judge cannot issue a decision without a hearing unless
there are no genuine issues of material fact in dispute. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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, the issuance of a decision without a hearing is
not appropriate. Third and similarly, the AJ may not issue a decision
without a hearing if he or she actually has to make factual findings in
order to do so. Fourth and finally, the 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. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). 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 administrative judge could order discovery, if necessary, after
receiving an opposition to a motion for a decision without a hearing).
Upon review, we determine that the AJ erred in not setting forth the
material facts she deemed undisputed in the notice of intent to issue
a decision without a hearing. Moreover, we find that the AJ further
erred when she incorporated her insufficient notice into her decision and
failed to write a thorough, well reasoned decision addressing the merits
of complainant's complaint. We also find that the AJ inappropriately
warned complainant that a sanction could result from his failure to
respond to her notice. Failure to respond to a notice of an intent to
issue a decision without a hearing is not, in and of itself, conduct
that an AJ should sanction. See Hale v. Department of Justice, EEOC
Appeal No. 01A03341 (December 8, 2000).
Despite these errors, we find that the issuance of a decision
without a hearing was nonetheless appropriate. Regarding claim (1),
the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). In this matter, we find that claim
(1) does not involve sufficient harm or loss to complainant's terms,
conditions, or privileges of employment to render him aggrieved nor
is sufficiently severe or pervasive to constitute harassment under EEO
regulations. Consequently, we dismiss claim (1) for failure to state
a claim.
Regarding claim (2), agency management responded that disciplinary entries
were made on complainant's AF Form 971 because he left for a flight line
assignment without a radio. Complainant failed to present any evidence
that other employees not within his protected classes were treated
differently when they left for an assignment without a radio. Moreover,
complainant acknowledged in his investigative affidavit that he left for
an assignment without a radio. With respect to placing complainant on
administrative leave, the agency responded that complainant was placed on
leave because supervisors and co-workers reported that complainant was
often hostile and behaved peculiarly. We find that complainant failed
to offer any evidence from which an inference of discrimination could
be inferred nor did he rebut the legitimate, nondiscriminatory reasons
offered by the agency for both its actions in claim (2).
Consequently, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final order because a preponderance of the record evidence does not
establish that discrimination occurred.
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
_August 21, 2003_________________
Date