01a00208
04-05-2000
William D. Hogsten, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
William D. Hogsten, )
Complainant, )
)
v. ) Appeal No. 01A00208
) Agency No. 97015HCF
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DECISION
On October 5, 1999, the complainant filed an appeal with this Commission
from the agency's final action which it issued pursuant to 29 C.F.R. �
1614.110.<1> The Commission accepts the complainant's appeal pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
ISSUE PRESENTED
The issue presented in this appeal is whether the Administrative Judge
properly granted the agency's motion for a decision without a hearing
based on a finding that there were no material facts at issue.
BACKGROUND
The complainant alleged in his complaint of December 29, 1996, that the
agency's Health Care Finance Administration (HCFA) discriminated against
him based on his race (White) when it did not select him for one of two
GS�340-13 Program Manager positions in Medicare Customer Assistance,
Office of Customer Communication, Bureau of Program Operations.
After an agency investigation, the complainant requested a hearing
before an Administrative Judge employed by the Commission. On May 18,
1998, the agency submitted to the Administrative Judge a Motion for a
Decision without a Hearing. The complainant provided an opposition to
the agency's motion on June 1, 1998. After reviewing the investigative
file and the submissions of the parties, the Administrative Judge
concluded that there was no dispute as to material facts and that
there was sufficient information upon which to base a decision without
a hearing. The Administrative Judge made findings of fact, addressed
contentions raised by the complainant, and concluded that the complainant
had failed to establish by a preponderance of the evidence that the agency
unlawfully discriminated against him based on his race regarding the two
non-selections. By decision of September 7, 1999, the agency adopted
the Administrative Judge's findings of fact and conclusions of law.
This appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, the Commission finds that the agency initially
failed to include in the record copies of the agency's May 18, 1998
Motion for a Decision without a Hearing and the complainant's June 1, 1998
Opposition to the Agency's motion when it submitted the complaint file to
the Commission. Following the issuance of a show cause notice by the
Commission's Office of Federal Operations (OFO), the agency submitted
a copy of its Motion for a Decision without a Hearing but failed to
submit a copy of the complainant's Opposition to the Agency's Motion.
In response to the show cause notice, the agency represents that its
counsel contacted the complainant's attorney in an effort to obtain
the missing information and that the complainant's appellate attorney
declined to cooperate in this activity. Nevertheless, the Commission
finds that the submitted record demonstrates that the issuance of a
decision without a hearing was not appropriate in this case.<2>
EEOC Regulation 29 C.F.R. �1614.109(e) authorizes Administrative Judges
to issue findings of fact and conclusions of law without a hearing where
the record and the submissions of the parties, if any, demonstrate that
there is no genuine issue as to any material fact. The Regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. Rule 56 provides for the granting
of summary judgment when the moving party shows �that there is no genuine
issue as to any material fact and the moving party is entitled to judgment
as a matter of law.� Rule 56 further provides that a party opposing a
properly supported motion for summary judgment �may not rest upon the
mere allegations or denials of his pleading, but ... must set forth
specific facts showing that there is a genuine issue for trial.� An
issue is �genuine� if the evidence is such that a reasonable fact-finder
could find in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 US. 242, 248 (1986). An issue of fact is �material� if it might
affect the outcome of the complaint under the governing substantive law.
Id. At the summary judgment stage, the role of the judge is not to
determine the truth of the matter but to determine whether there is a
genuine issue for trial. Id. at 249. What is required to withstand a
motion for summary judgment is not sufficient evidence to resolve the
matter conclusively in favor of the party asserting the existence of a
material fact at issue. Rather, all that is required is that sufficient
evidence supporting the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions of the truth
at trail. Id.
It is undisputed that the complainant established a prima facie
case of discrimination based on his race. He applied and was deemed
qualified by the agency for two vacant Program Manager positions; he
was not selected; and two individuals of a different race were selected:
selectee 1 (Black) and selectee 2 (Black). It is also undisputed that
the agency rebutted the complainant's prima facie case by articulating
legitimate nondiscriminatory reasons for the two non-selections through
affidavits by the selecting official (White) who was the Acting Director
of the Bureau of Program Operations; the recommending official (White)
who was the Acting Manager of the Office of Customer Service; and the
Manager of the Medicare Customer Unit (White) who was the individual who
would be supervising the selectees. Thus, the outcome on the merits of
this case turns on whether the articulated reasons for the selections
were a pretext for discrimination based on race.
In this case, the selecting official averred that the complainant was not
selected because he was not recognized as demonstrating the same level of
leadership skills as the two selectees. It is undisputed that selectee
1 had chaired and overseen the Division of Medicare Operations Support
(DMOS) reorganization work group which directly impacted the positions
at issue. Selectee 1 also was about to complete the HCFA Leadership
Program and was reassigned to his new position at the same grade level.
The Commission finds, however, that there is a material fact at issue
regarding the purported superiority of selectee 2's leadership skills.
According to the selecting official, the complainant had served on the
initial reorganization committee to plan how and where functions in the
former DMOS should be located within HCFA and the selectees had served
on a later reorganization committee which made specific organizational
proposals and implemented plans to perform the functions in the Bureau
of Program Operations. The record does not provide any specific
information describing what leadership roles, if any, the complainant
and selectee 2 took on these reorganization committees. The record
contains other evidence, however, of the complainant's leadership skills.
The complainant's application lists Superior Performance Awards for
1986-1989 and 1993-1994; Special Act Awards in 1990 and 1991; and
a Bureau Director's Citation in 1993. The complainant's application
includes a copy of the Bureau Director's Citation which recognizes the
complainant's exemplary performance as Control and Support Sector Chief
and his effective functioning as the Correspondence Branch Chief. An
undated letter awarded the complainant an EPMS appraisal bonus.
The letter indicated that the complainant's work as Chief of the
Correspondence Branch, providing �outstanding leadership� in directing
the numerous activities of the Branch, as well for his volunteering
to supervise the Control Support Section for a two month period, had
contributed to the effective operation of both the Bureau and the agency.
In contrast, Selectee 2's application does not list any awards.
The selecting official also averred that he based his selections on the
recommendations of the Acting Office Director and the Unit Manager where
the positions were located. The selecting official indicated that they
discussed all of the candidates and he agreed with their recommendations.
However, the Commission finds that the rationale for the recommendations
of the Acting Office Director and the Unit Director conflict with one
another. The Acting Director, Office of Customer Communications, averred
that he recommended selectee 2 for promotion primarily because she was
currently a supervisor in the organization where the vacancy was and her
selection would provide continuity in the reorganization in a unit with
significant problems.<3> The Medicare Customer Unit Manager agreed that
the DMOS group had a lot of baggage to get rid of, but indicated that
the group needed a fresh start. She opined that since the complainant
had been in the former organization, it would have been difficult for
him to lead the same persons who had worked for him. The Commission
finds that the apparent disagreement between the statements of the Acting
Office Director and the Unit Manager on the desirability of continuity
in leadership for a unit with significant problems raises an issue of
material fact as to the agency's motivation for promoting selectee 2.
Related questions of material fact are the nature of the problems in the
unit and the extent to which selectee 2 was responsible for the unit's
problems in light of her merely fully successful performance rating
for her leadership of the unit in calendar year 1995.<4> In contrast,
the complainant had received awards for his performance as Branch Chief
from 1991 to 1993.<5>
Finally, the Commission finds that the record raises an additional
question of material fact as to whether the agency officials fully
considered the complainant's qualifications for the vacancies when making
their selections. The Commission observed that the recommending official
and the selecting official sought input from the new Unit manager but,
according to the EEO Counselor's Report, they did not seek input from the
agency official who had supervised both the complainant and selectee
2 and who could have provided information on their effectiveness
as Branch Chief. In addition, both the Acting Office Director and
the Unit Manager averred that they read the candidates' applications.
However, the affidavit of the Acting Office Director did not include any
reference to material contained in the applications. Instead he indicated
only summarily that he did not recommend the complainant because �the
skills and the experiences� of the selectees made them �more attractive
candidates.� Moreover, according to the Unit Manager, nothing in the
complainant's 171 jumped out at her regarding his management experience.
However, the complainant's 171 includes descriptions of the awards
he had received and the management positions he had held, including
GS-11 Branch Chief, DMOS, Correspondence Branch, from September 1991
to October 1993 supervising 17 people; Operations Supervisor, Social
Security Administration, from March 1990 to September 1991 supervising
15 people; and Assistant Buyer and Area Manager for over six years in
private industry, supervising from 10 to 27 employees. The Commission
finds that the failure to seek information from the agency official
who had supervised the complainant and selectee 2, and the lack of
specificity in the affidavits of the Acting Office Director and the Unit
Manager regarding the complainant's and the selectees' prior experience
raises a question of material fact as to the actual motivation of these
officials when recommending selectee 2.
In sum, the Commission finds that genuine issues of material facts exist
that call into question the credibility of the agency's articulated
reasons for the selection of selectee 2. Accordingly, the Commission
concludes that the issuance of a decision without a hearing was improper
in this case. See Pedersen v. Department of Justice, EEOC Request
No. 05940339 (February 24, 1995) (when credibility is at issue there is
a need for cross-examination and summary judgement is improper).
CONCLUSION
The Commission finds that the decision of the agency must be VACATED
and the matter REMANDED for hearing. Because the agency's articulated
reasons lack specificity, it is the decision of the Commission to
permit the parties to conduct additional discovery prior to the hearing
on the complaint. The Commission further finds that the testimony of
the agency official who had supervised the complainant and selectee 2,
and who may have other relevant information, should be allowed by the
Administrative Judge.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
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 permit the parties to conduct discovery.
The Administrative Judge also shall authorize the testimony of the agency
official who had supervised the complainant and selectee 2 as to their
effectiveness and as to any other matters relevant to the question of
pretext. After a hearing, 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
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:
April 5, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that the
decision was mailed to the complainant, the complainant's representative
(if applicable), and the agency on:
Date 1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went
into effect. These regulations apply to all federal sector EEO
complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in
deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2The Commission recommends that the agency develop a procedure whereby
it can ensure the completeness of all complaint files submitted to the
Commission. In addition, the Commission places the agency on specific
notice that any future failure to include in a complaint file copies of
all documents submitted to or issued by Administrative Judges may result
in a sanction of the agency by the Commission.
3The Acting Office Director also averred that he did not recommend
the complainant because the skills and experiences of the selectees
made them more attractive candidates. The Commission finds that this
statement lacks sufficient specificity, as to the particular skills
and experiences that were desirable, to provide the complainant with
a full and fair opportunity to prove pretext. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). Accordingly,
the Commission finds that this statement may not serve to rebut the
complainant's prima facie case of discrimination.
4Selectee 2 did not receive either an outstanding or an excellent
performance rating for her work as Branch Chief in 1995. She also did
not receive any performance awards for her Branch Chief work.
5The Unit Manager also averred that she had seen selectee 2's commitment
and had seen that she could move people forward. Again, these statements
lack the necessary specificity to provide the complainant with a full
and fair opportunity to prove pretext. See Burdine at 258.