0120112629
10-11-2011
Scott K. Dow, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Coast Guard), Agency.
Scott K. Dow,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Coast Guard),
Agency.
Appeal No. 0120112629
Hearing No. 410-2011-00047X
Agency No. HS-10-USCG-005901
DECISION
On April 22, 2011, Complainant filed a timely appeal from the Agency’s
March 24, 2011, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. The appeal is timely and is accepted pursuant
to 29 C.F.R. § 1614.405(a).
ISSUE PRESENTED
Whether Complainant was discriminated against based on his disabilities
(depression, back and various other medical conditions) when on February
16, 2010, he learned that was not selected for promotion to the position
of Supervisory Merchant Marine Evaluation Specialist, GS-11/12, i.e.,
Chief of the Regional Examination Center (REC) in Charleston, SC.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Course Oversight Auditor, GS-11, i.e., the Assistant Chief of REC
located in Charleston, SC.
On May 8, 2010, he filed an EEO complaint alleging the above issue.
Following an investigation, Complainant requested a hearing before an
EEOC Administrative Judge (AJ). After the Agency submitted a motion
for summary judgment, the AJ issued a decision without a hearing finding
no discrimination.
Complainant’s first line supervisor (S1), who was also the selecting
official, was Chief of Operations for REC, and worked in the National
Maritime Center (NMC) in Martinsburg, West Virginia. He met Complainant
on three occasions, including at least once after the non-selection.
The position Complainant sought serves as the Chief of the Charleston
REC, and technical expert, providing administration on regulatory
provisions and controls for the merchant mariner credentialing program.
This includes supervising the review of credential applications for
local limited licenses and pilotage. The evaluation process includes
mathematical computations and interpolation concerning horsepower ratings
and vessel tonnage. The position directs the development of procedures
in determining eligibility and application of examination procedures;
and doing merchant marine training. The position supervises operational
tests to determine an examinee’s competency. The position maintains
continuing liaison with officials of shipping companies, maritime unions,
and federal, state, or municipal agencies. This is an office job,
and lifting boxes of not more than 20 pounds may be required.
The AJ found that Complainant was an individual with a disability.
He found that the position description indicated supervisory experience
was important because it emphasized that the incumbent provides direction
and supervision to unit staff. This was listed as a major duty.
The Agency advertised the same position three times from late August
2009 and January 2010. Complainant applied each time.
S1 served on the selection panel with P1 and P2, all of whom worked at the
NMC in West Virginia. Complainant was interviewed over the telephone.
The selection panel unanimously recommended the selectee (no known
disability) as the best applicant. The selectee was a Professional
Qualification Evaluation Branch Chief who worked in the NMC in West
Virginia.
The AJ recounted that the Agency explained it chose the selectee
because it believed he was the best qualified candidate based on his
extensive supervisory experience and performance during the job interview.
Complainant countered that he has two college degrees and the selectee has
none; that he has experience on a ship and the selectee does not, and that
he has been to civilian supervisor school, and he believed the selectee
has not. The AJ found that the disparity between the qualifications
of the selectee and Complainant did not rise to the level to show
pretext. The AJ observed that the REC Chief position had no positive
education requirement, and on-ship experience was not a requirement.
All three vacancy announcements explicitly stated there was no positive
education requirement. The selectee’s application revealed that he
had 19 years of active duty service with 17 years in the Marine Safety
Program, including 5 years in the Merchant Marine Credentialing program.
He wrote that he had tremendous knowledge of merchant marine equipment,
operations, and practices.
The AJ also found that at the time of the selection, the Agency was
unaware Complainant had a disability. The AJ recounted S1’s statement
that he did not observe any indication of Complainant having limitations
identifying a disability, and was unaware of Complainant’s disability
during the selection process. The AJ also referred to Complainant’s
statement that he had not asked for any accommodation because he was able
to perform his job without one, and he never specifically notified the
Agency about his medical conditions. Complainant stated that he attempted
to maintain his privacy about the details of his medical condition.
The Agency’s final action fully implemented the AJ’s decision.
CONTENTIONS ON APPEAL
Complainant argues that the AJ prematurely made a decision, and improperly
denied a hearing. The AJ issued an Acknowledgment and Order on December
1, 2010, giving the parties 90 calendar days from receipt thereof to
complete discovery, unless otherwise directed by the AJ. On December
27, 2010, Complainant’s attorney timely mailed discovery requests
to the Agency. On December 30, 2010, the Agency filed a motion for
summary judgment. On appeal, Complainant’s attorney affirms that after
receiving the Agency’s motion, he immediately contacted Agency counsel
and received her consent to seek a stay of the motion until discovery
was completed. The attorney affirms that he advised the AJ of this,
who then approved a stay until 15 days after the completion of discovery
to submit an opposition to the Agency’s motion for summary judgment.
He affirms that he filed the stay motion on January 14, 2011. He writes
that the Agency responded to his written discovery requests on January
31, 2011, and that he deposed S1, P1, P2, and the administrative officer
(human resources type person) who was involved in the issuing of the
three vacancy announcements. He argues that nevertheless, before he
filed his opposition to the Agency’s motion for summary judgment, the
AJ made a decision on February 17, 2011, without a hearing finding no
discrimination. Complainant argues that the discovery uncovered evidence
demonstrating genuine issues of material fact, that the AJ’s grant of
summary judgment should be reversed, and that he should be permitted to
complete discovery and file his opposition to the Agency’s motion for
summary judgment.
Complainant submits excerpts of the above depositions. He argues that
the deposition testimony of the selection panel members are in direct
contradiction with one another and raise doubt on their credibility
and the Agency’s account of the selection process. The selectee,
who had active duty military status, was not eligible to be hired for
this civilian position until he went on “terminal leave” pending
retirement, or retired. He went on terminal leave on February 27, 2010.
After the selection panel unanimously chose the selectee following the
first vacancy announcement, the selecting official was told, based on
advice from human resources, that the selectee was not eligible for
hire because he could not come on board within 45 days of his selection
because of his military status. Complainant refers to the deposition
testimony of the selecting official that after learning this, they went on
to unofficially select a second candidate, but it turned out he was not
eligible for the same reason as the selectee. The selecting official
stated that since they could not pick either of the best candidates,
they decided to re-advertise the position. Complainant argues that there
is a genuine material fact in dispute since P1 and P2 indicated in their
depositions that there was no discussion on hiring a second candidate.
Complainant also argues that the deposition testimony confirms that he
acted as the REC Chief since the job became vacant in September 2009, and
intermittently before that. On awareness of his disability, Complainant
argues that he advised S1, as well as P1, who also served in a supervisory
capacity over him in some respects, that he could not lift heavy objects.
In opposition to the appeal, the Agency submits a copy of its motion
for summary judgment that it filed with the AJ.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9,
1999) (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”).
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 Def., 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 agree with Complainant’s argument that the AJ prematurely made
his decision. The AJ issued his decision prior to the expiration of the
ordered 90 day discovery period. Also, the AJ advised Complainant’s
attorney that he had 15 days after the completion of discovery to submit
an opposition to the Agency’s motion for summary judgment, albeit it
appears the AJ made no written ruling on Complainant’s stay motion.
The AJ’s premature decision deprived Complainant of the opportunity
to respond to the Agency’s motion for summary judgment
On appeal, Complainant writes that the Agency responded to his written
discovery requests, submits excerpts of depositions referenced above,
and makes argument opposing the Agency’s motion for summary judgment.
While Complainant generally contends he would like to complete
discovery, we find that the record is now adequately developed to
rule on whether there are genuine issues of material fact in dispute.
Because Complainant did not have the opportunity to submit his argument
and connected discovery documentation prior to the appeal, we will
consider the argument and documentation now.
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 Constr. 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.1 See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
S1 explained that in choosing a selectee, leadership was the primary
qualification sought. This is consistent with the interview questions.
S1 stated that the selectee’s interview responses were much more
detailed and in and depth than Complainant’s, and the selectee’s
interview was exceptional. He stated the selectee had stronger
experience leading large groups of people, had facilitated several small
group teams, and had a wider range of supervisory experience. P1 stated
the interview was 90% of the decision making process, and Complainant’s
responses did not hit the mark as often as the selectee’s. P2 stated
that the selectee’s interview and application package were stronger
than Complainant’s.
Complainant argues that the Agency’s reasons were pretext to mask
discrimination. Specifically, he argues that he was more qualified.
He contends that he was an Acting REC Chief, and had other superior
qualifications. An employer has discretion to choose among equally
qualified candidates, so long as the selection is not based on unlawful
criteria. In the absence of such evidence, the Commission will not
second guess the agency's assessment of the candidates' qualifications.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at
259 (1981). We agree with the AJ’s assessment that Complainant’s
qualifications are not such in comparison to the selectee’s as to
raise the specter of discrimination.
Complainant also argued that contrary to the Agency’s explanations for
multiple vacancy announcements, the real reason was because it sought
delay so it could hire the selectee when he was eligible. He contends
that selection panel member’s contradictory deposition testimony about
whether they attempted to select another candidate after being advised
the selectee was not eligible creates a genuine issue of material fact.
We disagree with Complainant that any of this creates a genuine issue of
material fact in dispute or shows pretext. The record without contest
shows that after being informed the candidate(s) selected pursuant to
the first vacancy announcement were not eligible for hire, the selecting
official decided to re-announce the position. It is uncontested that
the selection panel was unanimous in its wish to choose the selectee.
It consistently explained it believed the selectee was best qualified.
Even if the Agency, as alleged by Complainant, went through the
exercise of re-announcing the position two more times to delay so it
would have the opportunity to hire the selectee, or this was one of the
motivations, this does not prove pretext since it wanted the selectee
for non-discriminatory reasons.
Complainant wrote in his affidavit that he had conversations with S1
about the nature of his injuries and that he could not lift heavy boxes,
and indicated he told S1 and P1 that he had a bad back and could not lift
heavy objects. Complainant stated he was unable to lift objects weighing
30 pounds or so. S1 and P1 denied having knowledge that Complainant
considered himself as having a disability. Assuming Complainant’s
version of events is accurate, this does not prove that the Agency’s
reasons for choosing the selectee, i.e., he was best qualified, was
pretext to mask discrimination. We add that the position did not
require heavy lifting, so it is unlikely this was a consideration.
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 action with fully implemented the AJ’s finding of
no discrimination.
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
October 11, 2011
__________________
Date
1 For purposes of analysis, we assume without finding that Complainant
is an individual with a disability.
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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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