01a45507
07-06-2005
Marvin Tobe, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Marvin Tobe v. Department of the Army
01A45507
July 6, 2005
.
Marvin Tobe,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A45507
Agency No. ARMTMCFE02OCT0016
Hearing No. 120-2004-00150X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms in part the agency's final
order and vacates and remands in part.
The record reveals that during the relevant time, complainant was employed
as a Lead Traffic Management Specialist, GS-13, at the agency's Command
Operations Center, Fort Eustis, Virginia facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on January 13,
2003, alleging that he was discriminated against on the bases of race
(African-American), sex (male), and age (D.O.B. August 19, 1939) when:
(1) he was not selected for a GS-14 Supervisory Traffic Management
Specialist position;
he was required to submit a support form for tasks unrelated to the
Table Distribution and Allowances (TDA) position to which he had been
detailed; and
he was detailed to a TDA position that was not equally rotated between
eligible candidates.
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 adopted the agency's recitation of the facts and applicable law as
set forth in the agency's motion for summary judgment. In that document,
the agency argued that complainant failed to establish a prima facie
case of discrimination for any of his claims. The agency further argued
that, assuming arguendo that complainant established a prima facie case,
the agency articulated legitimate, nondiscriminatory reasons for its
actions in each case. Regarding the nonselection for the Supervisory
Traffic Management Specialist position, the selecting officials (SO1:
Caucasian, male, DOB: May 30, 1953; and SO2: Caucasian, male, DOB: July
30, 1952) said that the selectee (S: Caucasian, female, DOB: July 10,
1958) demonstrated the best combination of leadership, management and
technical skills. Regarding the support form for the TDA position, S,
who had become complainant's supervisor, said that all employees were
required to submit support forms to document their recent accomplishments
in preparation for their evaluations. Regarding the TDA position detail,
both complainant's previous supervisor (RMO: African American, male, DOB:
June 9, 1953) and S said that complainant agreed to work the detail and
never expressed any dissatisfaction with the detail, and that rotation
of the detail was therefore never considered. The agency then concluded
that complainant failed to demonstrate by a preponderance of the evidence
that he was discriminated against under any of his alleged bases.
The agency's final action implemented the AJ's decision. From the
agency's action, complainant appeals.
On appeal, complainant contends, among other things, that the AJ
erred in granting summary judgment because material issues remain.
Complainant contends that the AJ's deference to the agency's facts is
not supported by the record. Complainant maintains that the agency's
statement of facts said nothing more than that S was the best qualified
because she demonstrated the best combination of leadership, management,
and technical skills during the interview, but that such a claim was
directly contradicted by complainant's facts that showed that S responded
poorly to the technical questions during the interview, that no leadership
questions were asked, and further, that complainant's leadership and
management experience was superior. Complainant further argues that
record evidence and testimony contradict management's contentions that
the TDA position was a position with a lot of responsibility and that
complainant never told management that he was unhappy with the position.
The agency argues that complainant filed his own Motion for Summary
Judgment prior to the AJ's decision and so complainant therefore must
have felt that there was no material issue present. The agency requests
that we affirm its final action implementing the AJ's decision.
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.
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.
We find initially that, as regards claims 1 and 2, the AJ correctly
found no discrimination. As regards claim 1, the nonselection claim,
complainant argues that the proper selection process was not used,
that the selecting officials used subjective criteria, and that SO2's
deposition testimony was inconsistent with evidence in the record.
We find that, while the selection process may not have been ideal,
complainant has not shown that any deficiencies in the process raise a
material issue of fact concerning the agency's articulated reason for
selecting S. Regarding the agency's use of subjective criteria, we
note that the Commission has held that an employer has more discretion
in selecting management level employees because the qualities needed
to successfully perform in such positions are not easily quantifiable.
White v. Department of the Interior, EEOC Request No. 05930686 (September
1, 1994).
Regarding alleged inconsistencies between SO2's testimony and the record,
complainant argues that SO2 said that S was the best qualified because
she demonstrated the best combination of leadership, management, and
technical skills during the interview, but that such a claim was directly
contradicted by complainant's facts that showed that S responded poorly
to the technical questions during the interview, that no leadership
questions were asked, and further, that complainant's leadership and
management experience was superior. A review of SO 1 & 2's interview
notes, however, reveals that at least three leadership questions were
asked. Furthermore, a comparison of the curricula vitae indicates
that S had fifteen years of management or leadership experience, while
complainant indicated he had less than nine years of such experience.
We are therefore unpersuaded by complainant's arguments and we find they
do not raise a material issue of fact, nor do they otherwise establish,
by a preponderance of the evidence, that discrimination occurred.
As regards claim 2, we find that, even assuming arguendo that complainant
states a claim, and assuming further, that he has established a prima
facie case, the agency articulated a legitimate, nondiscriminatory reason
for its action, namely that the support form was required of all employees
in order to enable supervisors to ensure subordinates received credit
for their work. See Report of Investigation (ROI), Deposition p. 325.
Complainant has not raised a material issue of fact concerning this
claim and has not shown that the agency's articulated reason is pretext.
As regards claim 3, however, we note that in finding no discrimination,
the AJ relied on the representations of management officials as provided
in the agency's Motion for Summary Judgment when they maintained that the
idea of rotating details for the TDA position was never considered because
complainant never complained about the detail. Such representations are
contradicted by RMO who said �I know that [complainant] was adamantly
upset about being [placed on the detail] because he didn't feel that
he was, that was the job that he was hired for.� ROI, Deposition
p. 297. RMO further stated that he took complainant's concerns to SO1,
complainant's second level supervisor, but that nothing was done. Id.,
p. 311. Such statements by a management official are material because
they directly contradict the agency's articulated reason for its action,
namely that no action was taken to rotate others into the detail because
complainant had not made his dissatisfaction with the detail known
to management.
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, in
appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); 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 25, 1995). In summary,
because the agency's articulated reason is contradicted by management
testimony, an assessment as to the credibility of the various management
officials, co-workers, and complainant himself is required. Therefore,
judgment as a matter of law for the agency regarding claim 3 should not
have been granted.
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 AFFIRMS the
agency's final action with respect to claims 1 and 2 and VACATES and
REMANDS claim 3 to the agency in accordance with this decision and the
Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
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 claim 3 of the complaint, the detail to the TDA position,
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
July 6, 2005
__________________
Date
MEMORANDUM
TO: Mary Beth Palmer and Marlin Scheffler
Supervisory Lead Administrative Judges,
Baltimore District Office
FROM: Carlton M. Hadden, Director
Office of Federal Operations
RE: Marvin Tobe v. Department of the Army,
EEOC Appeal No. 01A45507
Enclosed is a decision requiring that the referenced complaint be
assigned to an Administrative Judge for the scheduling of a hearing.
We request that the Administrative Judge notify Marjorie Borders, Chief
of the Compliance Branch of the Office of Federal Operations when a
decision is issued.
If you have any questions regarding the further processing of this
complaint, please contact Robert Barnhart, Director of Compliance and
Control at (202) 663-4525.
cc: District Director
Baltimore District Office
Administrative Judge Coordinator
Office of Field Programs