0120064637
03-07-2008
Normand Laberge, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Normand Laberge,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200646371
Hearing No. 520A60116X
Agency No. 0563038005
DECISION
On August 8, 2006, complainant filed an appeal from the agency's July
11, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission affirms
the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Environmental Protection Specialist, GS-0028-09, at the agency's Naval
Computer and Telecommunications Area Master Station Atlantic Detachment
facility in Cutler, Maine. On July 16, 2004, the Technical Director,
Naval Computer and Telecommunications Area Master Station Atlantic
Detachment, and complainant's former supervisor (S1) sent a letter to
the union detailing the asbestos procedures and duties to be implemented
on July 30, 2004. The document provided that all asbestos workers
and supervisors would be limited to class 3 or 4 work which included
repair or maintenance which were considered small in scale and duration.
Class 1 or 2 work, including the abatement of asbestos, would no longer
be performed by in-house asbestos workers or supervisors. On April 25,
2005, complainant sent an e-mail recommending that overtime be approved
for two employees to remove asbestos. Complainant's supervisor at that
time (S2) responded to the e-mail and concurred with complainant that
overtime should be used instead of using a contractor for the removal
of the asbestos. Another agency official emailed S1 and complainant
authorizing the preparation of the asbestos removal. However, the
Regional Safety Manager (RSM) emailed S2 stating that in the past,
complainant had raised issues regarding hazard pay and asbestos work,
and had been previously unwillingness to perform asbestos removal work.
On April 26, 2005, complainant emailed S2 and the RSM stating that he
had no reservations about performing the work. On April 27, 2005, the
RSM emailed S2 recommending that the asbestos work be contracted out.
Complainant was not provided the opportunity to perform the asbestos
removal. On July 27, 2005, complainant filed an EEO complaint alleging
that he was discriminated against on the basis of age (D.O.B. 10/04/46)
when around April 26, 2005, he was denied the opportunity to do asbestos
work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On May 12, 2006, the agency filed a Motion
for Summary Judgment. Complainant filed his response on May 26, 2006.
The AJ assigned to the case determined that the complaint did not warrant
a hearing and over the complainant's objections, issued a decision without
a hearing on June 2, 2006. Specifically, the AJ found that assuming
complainant established a prima facie case of age discrimination,
he failed to prove that the agency's articulated reasons for not
permitting him to do asbestos work were a pretext for age discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
Complainant makes numerous contentions on appeal regarding errors
committed by the AJ in her decision regarding his asbestos removal
claim.2 The agency requests that we affirm its FAD.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). We must first determine whether
it was appropriate for the AJ to have issued a decision without a hearing
on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding 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).
Finally, an 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.
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
administrative judge 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).
We find that the record is adequately developed for a decision without
a hearing and that complainant had ample opportunity to respond to the
agency's motion for summary judgment, which he did.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Taking the facts in the light most favorable to complainant and
assuming arguendo, that complainant established a prima facie case of
age discrimination, we find that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, S2 stated in
his affidavit that he was originally in favor of complainant performing
the work because it was his understanding that the scope of the asbestos
abatement work was within complainant's position description. However,
he was informed by the RSM at the Headquarters office that complainant
was not to perform any asbestos abatement work according to the agency's
policy. As a result complainant could not perform the asbestos removal
and S2 was informed that a contractor was required to do the work.
In order to establish that the agency's reasons were a pretext for age
discrimination complainant asserts that he had been permitted in the
past to perform asbestos removal work and that the policy was never
actually implemented before July 2005, when he was informed that he was
not performing the asbestos removal at issue in this case. While both
of these facts maybe true, nevertheless, we find that these reasons
alone are not sufficient to establish that the agency's articulated
reason was a pretext for age discrimination. The record reflects that
the Administrative Officer stated in her affidavit that the S1 actually
implemented the policy in 2004. Further, the Head, Industrial Hygiene
Department Newport/Brunswick, stated in an e-mail contained in the record
that to his knowledge, since the policy was signed no asbestos work was
done to his knowledge. Complainant has offered no evidence to support his
assertion that the policy was not implemented. Complainant's statement
alone does not create a genuine issue of material fact. Moreover, the
record reflects that S2 was unaware of the policy until it was brought to
his attention with regard to incident. Further, we note that complainant
does not provide details of what type of asbestos removal he performed
in the past and whether those assignments were of the type permitted
by the policy or not. Complainant asserts on appeal that he could have
provided the information if he had had the opportunity to do so. We find
that this argument is unavailing since the record shows that complainant
had an opportunity to raise any factual disputes in his response to the
agency's motion for summary judgment. In fact, complainant stated in
his opposition that he could produce that information, but failed to do
so at any point in the process. Therefore, we find that complainant
failed to establish that genuine issues of material fact existed such
that a hearing was warranted.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
adoption of the AJ's decision finding that complainant failed to establish
that he was discriminated against as he alleged. The agency's order is
hereby affirmed.
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
____03-07-2008______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that the record reflects that the agency dismissed one other
claim raised by complainant in his complaint. Since complainant does not
raise the dismissal on appeal, the Commission exercises its discretion
to review only the issue specifically raised in complainant's appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 9-10 (November 9, 1999).
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0120064637
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064637