0120093847
03-09-2012
Robert S. Young, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
Robert S. Young,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 0120093847
Hearing No. 531-2009-00011X
Agency Nos. HHS-FDA-CDER-072-07-F
HHS-FDA-CDER-005-08-F
HHS-FDA-CDER-020-08-F
DECISION
Complainant timely filed an appeal from the Agency’s August 20, 2009,
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 Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing and whether the AJ properly
found that Complainant did not establish that he was subjected to
unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a GS-15 Medical Officer at the Agency’s facility in Rockville, Maryland.
Complainant was hired as a Medical Officer in 1974 and promoted to the
GS-15 level in 1976.
On November 30, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (Asian/Pacific
Islander/Hawaiian Native), national origin (Polynesian), color (Brown),
age (born in November 1941), and in reprisal for prior EEO activity when:
1. On August 7, 2007, Management notified Complainant that his position
would be subject to peer review;
2. On October 11, 2007, the Agency denied Complainant an Acting Branch
Chief assignment; and
3. On November 28, 2007, Management required Complainant to use annual
leave to represent another employee at a congressional interview.
In investigative statements, Complainant stated that peer review
is a classification system that began about ten years ago in which
employees in lower grades could be promoted to higher grades through
peer committees. Complainant stated that he has never been subjected
to peer review, but now management is trying to retaliate against him
because of his prior EEO activity.
Complainant further stated that a field investigator requested that he
accompany her to an interview with a congressional investigative staff.1
Complainant stated that, in the past, the Agency allowed employees to
use official time when representing other employees for a congressional
interview, but the Agency made him use eight hours of annual leave to
represent the field investigator.
Complainant also stated that in Summer 2007, the Division Director left
the Agency, and the Branch Chief replaced him as Acting Division Director
(Director). Complainant stated a co-worker (C1) was appointed Acting
Branch Chief, and he does not know if he (Complainant) was considered
for the assignment. Complainant stated that he was more qualified for
the appointment because he went to a “top school,” has a Master of
Laws degree, served as an expert witness, and taught pharmacology for
over 30 years.
The Associate Commissioner for Science (Commissioner) stated that
Complainant was notified that his position would be subject to peer
review because Agency policy provides that, in order for a non-management
Medical Officer to be promoted to a GS-15 level, peer review must be
used. The Commissioner stated that peer review of GS-15 non-management
positions will occur every five years, and the peer review process is
necessary to ensure compliance with Office of Personnel Management’s
(OPM) requirements that positions are properly titled and graded.
The Commissioner further stated that the August 7, 2007, peer review
e-mail that was sent to Complainant was sent to all non-management
GS-15 Medical Officers. The Commissioner stated that he was unaware of
Complainant’s prior EEO activity when the peer review notice was issued.
The record reflects that since 1979, the Medical Officer GS-15 position
has been subject to periodic peer review to ensure that the Medical
Office’s duties were properly classified as GS-15, but that prior to
2007, enforcement of the peer review requirement was not uniform because
of a lack of resources.
The Director stated that Labor Relations advised her that the Acting
Branch Chief detail assignment did not have to be announced because the
assignment was not expected to exceed 120 days. The Director stated
that her assignment as Acting Division Director was expected to last
less than 120 days and, therefore, the Acting Branch Chief assignment
was also not expected to exceed 120 days. She further stated that
she appointed an employee (C1) as Acting Branch Chief from August 2007
until October 11, 2007, and a second employee (C2) from October 11, 2007
until February 2008. The Director stated that C1 and C2 were selected
because of their past performance in the Branch, and Complainant was not
selected because of “the timeliness of his work” and work backlog,
as reflected in his most recent performance reviews.
The record contains a document entitled “Food and Drug Administration
External Relations Attendance by FDA Employees at Congressional
Hearings.” Report of Investigation, Exhibit F9. The Agency contends
that Complainant did not comply with this document’s requirements
for requesting official time to attend congressional hearings
and investigations. The document states that it governs employees'
attendance at congressional hearings or other legislative and oversight
functions and sets forth guidelines for securing proper approval to attend
these meetings. The document further states that any employee whose job
performance may be enhanced by observing a particular hearing may attend
congressional hearings, as part of his or her official duties, provided
approval is secured from the immediate supervisor and the Associate
Commissioner for Legislation and Information for all legislative and
oversight hearings or the Director of the Division of Financial Management
if the hearing involves appropriations. Additionally, the document
states that any employee who fails to meet the aforementioned criteria
may attend a congressional hearing during official work hours but must
use annual leave approved in advance by his or her immediate supervisor.
The Agency maintains that Complainant did not request official time from
his immediate supervisor and the Associate Commissioner for Legislation
and Information to attend the congressional interview.
At the conclusion of the investigation, the Agency provided Complainant
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. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s March 20, 2009, motion for
a decision without a hearing and issued a decision without a hearing in
the Agency’s favor on August 11, 2009. In that decision, the AJ found
that Complainant failed to establish a prima facie case of reprisal with
respect to claim 1. The AJ further found that Complainant failed to
prove that the Agency’s non-discriminatory explanations were pretext
for unlawful discrimination. The Agency subsequently issued a final
order fully adopting the AJ’s findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision
without a hearing in favor of the Agency. Complainant contends that,
although it is unclear if the Commissioner was aware of his prior EEO
activity before he notified him that his position would be subject to
peer review, a hearing is necessary to assess the credibility of the
Commissioner’s assertion that he was unaware of Complainant’s prior
EEO activity. Complainant further contends that a hearing is necessary
to assess the credibility of the Director’s assertion that she did not
know that her detail as Acting Director would last more than 120 days,
and therefore, require that the Acting Branch Chief position be filled
through advertisement and competition. Complainant maintains that the
Director never considered him for the Acting Branch Chief assignment,
but he should have been considered. Complainant also contends that the
Agency’s peer review committees do not guarantee compliance with Office
of Personnel Management (OPM) classification standards for positions.
The Agency requests that we affirm its final order.
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 for 29 C.F.R. Part
1614, Chap. 9, § VI.B. (Nov. 9, 1999). 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 Chap. 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
Decision without a Hearing
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. Dep’t 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). After a careful review of
the record we find that there was no genuine issue of material fact or
credibility so as to warrant a hearing; a decision without a hearing
therefore was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental
Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, he must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once Complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reason(s) for its action was a
pretext for discrimination. At all times, Complainant retains the burden
of persuasion, and it is his obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
For purposes of analysis and without so finding, we assume that
Complainant established a prima facie case of discrimination for each
claim. Nonetheless, the Commission finds that the Agency provided
legitimate, non-discriminatory reasons for its actions, as detailed above.
Complainant maintains that a hearing is necessary to assess the
credibility of the Director’s assertion that she did not know that
her detail as Acting Director would last more than 120 days.2 However,
Complainant has not provided any evidence beyond his bare assertion that
the Director was aware that she would be Acting Director beyond 120 days
when she appointed C1 and C2 as Acting Branch Chiefs. Complainant also
maintains that the Director never considered him for the Acting Branch
Chief assignment, but he should have been considered because he went
to a “top school,” has a Master of Laws degree, served as an expert
witness, and taught pharmacology for over 30 years. Complainant did not
rebut the Director’s assertion that he was not appointed Acting Branch
Chief because he had timeliness issues and a work backlog, which were
documented in his 2008 and 2007 performance appraisals. Likewise,
Complainant did not rebut the Agency’s articulation of C1’s and
C2’s qualifications for the appointment. We note that an employer
has greater discretion when filling management or specialized positions,
and Complainant has failed to provide any evidence that would establish
that unlawful discrimination was a factor in the Agency’s appointments.
See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Complainant further maintains that peer review should not be applied
to Medical Officer positions because peer review committees do not
guarantee compliance with OPM classification standards. Assuming that
Complainant’s assertion is true, all non-management GS-15 Medical
Officers were subjected to peer review, which greatly undermines
Complainant’s assertion that the imposition of peer review was motivated
by race, color, age, national origin, or reprisal. Ultimately, the
Agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259;
Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Complainant’s subjective belief that discrimination may have occurred
is insufficient to establish a genuine issue of material fact of pretext;
the respondent must present affirmative evidence in order to defeat a
properly supported motion for summary judgment. See Betkerur v. Aultman
Hospital Association, 78 F.3d. 1079, 1094 (6th Cir. 1996). As such,
we determine that Complainant has provided no evidence from which a
reasonable fact-finder could conclude that the Agency’s explanations
were pretext for unlawful discrimination. Consequently, we find that
the AJ properly found no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 9, 2012
Date
1 We note that there is no evidence or claim that this congressional
interview involved any EEO matters.
2 Because we assume arguendo that Complainant established a prima facie
case of unlawful discrimination, we decline to address Complainant’s
appellate arguments pertaining to whether he established a prima facie
case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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