01-2006-2896_Attridge
03-17-2008
Peter D. Attridge, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area) Agency.
Peter D. Attridge,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area)
Agency.
Appeal No. 01200628961
Hearing No. 160-A5-0538X
Agency No. 4B018001405
DECISION
JURISDICTION
On April 12, 2006, complainant filed an appeal from the agency's March
7, 2006 final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission VACATES and REMANDS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Labor Relations Specialist EAS-19 at the agency's Massachusetts
District, facility in North Reading, Massachusetts. On November 18, 2004,
complainant contacted an EEO Counselor and filed a formal EEO complaint
on January 4, 2005, alleging that he was discriminated against on the
bases of race (White), sex (male), and age (D.O.B. 07/12/54) when: (1)
the agency failed to pay for his law school tuition; (2) he was denied a
noncompetitive downgrade to the position of Postmaster at the Manchester,
Massachusetts, Post Office; and (3) he was not alternatively selected
to the same position pursuant to a competitive selection process.
AJ'S DECISION WITHOUT A HEARING
Undisputed Facts
The Administrative Judge summarized the undisputed facts in his decision
as follows: Complainant's affidavit states that, in the spring of
2004, the Manager of Human Resources for the District (M1) entered a
staff meeting in which complainant was present and announced that the
agency intended to make funds available to employees who wished to pursue
educational opportunities. After this announcement, complainant met with
M1 in June 2004 and told him that he wanted to attend the Massachusetts
School of Law ("MSL"). M1 responded that he did not think it would
be possible to secure funding for law school due to the price, the
insufficient link between a law school education and complainant's job
duties, and the agency's anticipation that complainant would quit the
agency for higher paying employment shortly after complainant graduated
from law school and was admitted to the bar. Before receiving an official
response on his request for tuition reimbursement, complainant applied
for and enrolled at MSL.
As complainant's affidavit further states, on August 31, 2004, a week
after classes at MSL began, M1 told complainant that he had spoken
with the Massachusetts District Manager (D1) who decided to deny
complainant's education reimbursement request after D1 referred to
criteria articulated in Article 713.2 of the Employee & Labor Relations
("ELR") Manual. D1's affidavit does not dispute that he based his decision
to deny complainant's request for tuition reimbursement on criteria set
forth in the ELR Manual.
On September 14, 2004, complainant observed a posting for the position
of Postmaster, EAS-18, for the Manchester, Massachusetts, Post Office.
Afterward, complainant met with Massachusetts District Post Office
Operations Manager (RMO) and requested a noncompetitive downgrade to the
Postmaster position. RMO told complainant that he would have to submit
a written request for the downgrade, but also told complainant that he
was unlikely to grant the request because he had never before granted a
downgrade and wanted to "open the job up to the broadest consideration."
Approximately three weeks later, D1 told complainant that he denied his
noncompetitive downgrade request, and that complainant would have to
apply competitively for the position. D1 does not dispute these facts.
Complainant subsequently applied for the position, but management
initially did not grant him an interview. After raising an objection,
management added him to the interview register. The Senior Post Office
Operations Manager (POOM) (M2) and RMO interviewed complainant on October
24, 2004. Complainant was notified on November 23, 2004, that he was
not selected for the position.
Claim 1
The AJ concluded that the agency established a legitimate,
non-discriminatory reason for its decision to deny complainant tuition
reimbursement. Specifically, D1's affidavit states that the ELR Manual
allows him to use his discretion to conclude that granting educational
reimbursements to complainant would not benefit the agency. According to
D1, under the ELR Manual, a law degree would not increase complainant's
potential for career advancement because complainant also indicated to
the agency that he had a goal in becoming the Manchester Post Office
Postmaster, and the position of Postmaster does not require a law degree.
D1 also states that a law degree is not necessary for a Labor Relations
Manager position. D1 also explained that he used his discretion to
deny complainant reimbursement because complainant was not a candidate
for the agency's Advanced Leadership Program, which would have provided
greater justification for the agency to grant reimbursement.
The AJ concluded that complainant has not shown evidence that D1 failed
to follow agency policy or practice. Moreover, the AJ concluded that
complainant failed to identify any facts that could establish that D1's
interpretation of agency guidelines was an abuse of his discretion or
was motivated by a complainant's race, sex or age.
Claim 2
The AJ noted that the undisputed record shows that RMO had never
before granted a request for a noncompetitive downgrade. RMO stated
that it is more important to make positions available to the "broadest
consideration in order to find the most qualified candidate." The AJ
concluded that complainant failed to present evidence of disparate
treatment or discriminatory animus with respect to RMO's denial of
complainant's request for a non-competitive downgrade.
Claim 3
The AJ noted that complainant submitted an application for the
position. The agency convened a Review Committee to screen the
applicants, and recommended the following candidates: (1) the selectee
(SE) (White, female, 51); (2) Applicant 1 (A1) (White, male, 44);
(3) Applicant 2 (A2) (White, male 36). Consideration also was given
to complainant and Applicant 3 (A3) (White, male, 51). M2 and RMO
interviewed the candidates. According to RMO's affidavit, both he and
M2 decided to select SE as the most qualified candidate. RMO explained
that they based their decision to select SE on a number of factors of
which RMO felt SE exceeded complainant, including the following: (1)
leadership and practical decision making; (2) communication skills;
(3) operational knowledge; and (4) exposure and experience with new
programs in operational functions. In comparing complainant to SE, RMO
found complainant lacked leadership skills, had limited communications
skills, demonstrated an entitlement outlook and often a high degree of
sarcasm and had limited operational knowledge, particularly with such
functions as AWIPS, DOIS and MSP. RMO also explained that he considered
complainant's past employment as an Officer in Charge ("OIC") at the
Woburn, Massachusetts, Post Office, where complainant "had difficulty
implementing a new program and his tenure in office was short and his
performance unremarkable."
The AJ concluded that although complainant presented sufficient evidence
to create an inference of sex discrimination, he did not produced evidence
of pretext. In addition, the AJ concluded that complainant failed to
establish that his qualifications were superior to SE's.
FINAL AGENCY ACTION
The agency adopted the AJ's finding that complainant failed to raise a
genuine dispute of material fact with respect to his claims and concluded
that complainant failed to establish discrimination.
CONTENTIONS ON APPEAL
Complainant argues, inter alia, that the AJ improperly issued a summary
judgment decision prior to receiving his response to his January 31,
2006 Notice of Intent to Issue Decision without a Hearing (Notice).2 On
March 3, 2006, prior to mailing his response to the Notice, complainant
received an Order Entering Judgment (Order) dated February 28, 2006.
The Order states that "neither party responded" to the Notice and that
judgment was thereby entered in favor of the agency. Complainant argues
that the AJ erred in issuing his Notice without considering complainant's
response. In addition, complainant argues that the AJ improperly reduced
the discovery period from 90 days to 60 days. Complainant argues that,
as a pro se litigant, it was very difficult for him to meet the discovery
time-frame. 3
STANDARD OF REVIEW
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.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(EEO MD-110) (providing that an administrative judge's "decision to issue
a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo"). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
ANALYSIS AND FINDINGS
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). Unlike the typical civil employment
discrimination trial in federal court, an EEOC hearing is not strictly
judicial in nature - it is a quasi-investigatory exercise, as well.
It is specifically designed as "an adjudicatory proceeding that completes
the process of developing a full and appropriate record." EEO MD-110,
at 7-1 [emphasis added]; see also 29 C.F.R. � 1614.109(a) (stating that
once a complainant request a hearing and an EEOC administrative Judge is
appointed, the administrative judge assumes "full responsibility for the
adjudication of the complaint, including overseeing the development of
the record"); cf. EEO MD-110, at 7-7 (explaining that "[t]he Commission
intends that the [a]dministrative judge will take complete control of the
case once a hearing is requested"). Agencies are initially responsible
for conducting thorough and complete investigations of complaints
of discrimination brought against them. See 29 C.F.R. � 1614.108(b)
(instructing agencies to "develop an impartial and appropriate factual
record upon which to make findings on claims raised by the written
complaint:); and EEO MD-110, at 6-1 (noting that an "appropriate factual
record is one that allows a reasonable fact finder to draw conclusions
as to whether discrimination occurred"). However, Commission rules
recognize that agencies will not always meet their regulatory burden
to conduct such comprehensive investigations. The rules thus clarify
that "where a hearing is properly requested and where there has been
no investigation or there is an incomplete or inadequate investigation,
the record in the case shall be developed under the supervision of the
[a]dministrative judge." EEO MD-110, at 7-7.
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).
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, the Commission finds that the
AJ's grant of summary judgment was not appropriate, as the Report of
Investigation is not complete.4
For example, with respect to Claim 3, complainant testified that during
the application process, prior to the selection decision, SE contacted
and advised him that she was aware that management reversed its decision
and decided to give complainant an interview for the vacant position.5
Complainant had never before had any contact with SE and found it
suspicious that she would have such privileged information during the
interview process. This contact gave complainant the impression that
the selection decision was predetermined by management.
Complainant also affirmed that RMO told him that SE was selected
over complainant because of her "extensive delivery background."
However, complainant argues, and the record suggests, that SE had
less extensive delivery experience than complainant. Complainant also
affirmed that RMO told him that SE's AM Standard Operating Procedure
(AMSOP) involvement was a factor in her selection. Yet, the vacancy
announcement and position description makes no mention of AMSOP experience
and complainant states that there were no questions during the interview
regarding AMSOP or knowledge of AMSOP. In addition, complainant asserts
and the record shows that he was not initially granted an interview.
The record shows that the Review Committee screened and selected three
individuals for an interview. However, the record is devoid of any
testimonial or documentary evidence that provides any basis for the
Review Committee's selection of interviewees. In addition, the agency
provides no explanation for the decision to later grant complainant and
A3 an interview. We also note that RMO's affidavit mentions a number
of reasons for selecting SE over complainant, but fails to address
complainant's assertion that RMO relied on delivery experience or AMSOP
involvement. Lastly, we note that M2 failed to provide any affidavit
or statement that explains his involvement and observations during the
interview/selection process or corroborates RMO's testimony.6
Given complainant's assertions of pretext to which the agency fails to
dispute or respond, we find the record incomplete. Accordingly, summary
judgment is premature. For these reasons, the Commission vacates the
agency's final decision and remands this matter for completion of the
investigation, for a re-examination of the evidence as a whole and
thereafter a reconsideration of whether summary judgment is appropriate.
ORDER
Within 45 days of the date this order becomes final, the agency shall
conduct a supplemental investigation to include: (1) all documentary
and testimonial responses to complainant's assertions of pretext;
(2) all documentary and testimonial evidence related to the Review
Committee's selection process; (3) all documentary and testimonial
evidence related to the interview process, including testimony from M2;
and (4) a second (i.e., rebuttal) affidavit from complainant in response
to all documentary and testimonial evidence provided by the agency.
This information will be forwarded to the Hearings Unit of the New York
District Office together with a copy of the complaint file to the EEOC
Hearings Unit for assignment of an Administrative Judge. 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
March 17, 2008
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 The parties were given until March 3, 2006 to respond to the AJ's
notice.
3 Complainant did not address the merits of the AJ's summary judgment
decision.
4 We also find that the undisputed record shows that the AJ did not
provide complainant an opportunity to respond to his Notice, since the
Order was issued before the time to respond expired.
5 The agency provides no response to this assertion.
6 The record is also devoid of documentary or testimonial evidence
describing the interviews.
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0120062896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036