0120080675
04-12-2012
Darcey L. Shimitz, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Darcey L. Shimitz,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120080675
Hearing No. 260-2005-00183X
Agency No. FSIS-2003-00199
DECISION
Complainant timely filed an appeal from the Agency's October 22, 2007, final order concerning her 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in this case.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Food Inspector at the Agency's facility in Sioux City, Iowa.
In December 2002, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (Asthma) and in reprisal for prior EEO activity when:
1. On August 2, 2002, Complainant's supervisor (S1) did not approve her request for leave;
2. On or about October 25, 2002, S1 charged Complainant Absent without Leave (AWOL) while she was on military duty; and
3. S1 removed the stool Complainant rested on, which deprived her of a reasonable accommodation.
The record reveals that on January 22, 2002, Complainant was diagnosed with Chemical Encephalopathy; Chronic Bronchitis with airways obstruction; Asthma; and Reactive Airways Disease. Complainant maintained that her impairments substantially impacted the major life activities of breathing, walking, standing, and working. Complainant's Affidavit (Ex. 1) (attached to Complainant's Supplemental Opposition to Agency's Motion for Summary Judgment). Complainant stated that Food Inspectors usually perform all their duties from a standing position, but initially a stool was present to use while performing inspections. Ex. 1, p. 3. Complainant further stated that on June 17 and 18, 2002, she first requested a reasonable accommodation because the Agency removed a stool on which she rested, and she needed the stool because she had equilibrium problems. Ex. 1, p. 6. Complainant further stated that she told management that she needed the stool because of her medical condition, but the Supervisory Veterinary Medical Officer told her that Complainant's second-line supervisor (S2) removed stools for safety reasons and because inspectors were using the stools to sleep at inspection stations. Complainant further stated that on June 17 and 18, 2002, she told S2 that she needed to use the stool because of her medical condition.
Complainant further contended that the Agency wrongfully charged her AWOL when her military duty was extended, although the Supervisory Veterinary Medical Officer and other management officials had verbally approved the leave. Ex. 1, p. 12. Complainant further maintained that the AWOL charge was improper because she faxed requisite documentation concerning her extended military duty to the Agency.
S2 stated that he believed that the stool was removed in or about April 2002. Ex. 11, p. 3. S2 further stated that first-shift management made the decision to remove the stool for every inspector because it determined that the stool was a safety hazard. S2 stated that the rail inspection area where Complainant worked was very congested, and it was unsafe to have the area obstructed by the stool. S2 stated that Complainant complained to him about removal of the stool, and he informed her that it was removed because of safety concerns. Ex. 11, p. 3. S2 stated that Complainant never made him aware of her medical condition or the need for the stool because of her medical condition. Ex. 11. p 2.
The Supervisory Veterinary Medical Officer/Public Health Veterinarian stated that the stool was removed for safety reasons. He stated that Complainant never made him aware that her request for the stool was related to a medical condition, and Complainant never presented any medical documentation regarding her medical condition. Ex. 12, p 3. He further stated that he observed that the stool used by Complainant and other employees caused severe crowding and congestion in the work area where employees routinely passed each other, and he and another supervisor agreed to remove the stool because it was a safety hazard.
Complainant's immediate supervisor (S1) stated that he disapproved Complainant's leave request for July 29, 2002, and August 2, 2002, because she failed to submit the proper medical documentation to support her request. Ex. 10, p 3. S1 stated that on July 24, 2002, Complainant submitted a SF-7l (Request for Leave Form) for leave for court duty and military duty. He further stated that he disapproved Complainant's requested leave because she did not provide him with a copy of her court papers for duty on July 29, 2002, or submit any documentation of her military orders for August 2, 2002. S1 stated that on July 25, 2002, Complainant provided him with a copy of her court order, and he approved her leave for July 29, 2002. However, S1 stated that Complainant never provided him with the requested documentation of her military orders or letter from military command. He stated that on July 27, 2002, Complainant moved to the night-shift rotation, resubmitted her leave request for August 2, 2002, and was approved for leave by the night-shift inspector.
S1 further stated that he reported Complainant AWOL when she went on her annual military training for two weeks in October 2002 and extended her leave without informing him or contacting the district offices. S1 stated that after Complainant faxed the proper documents to the district office, her military leave was approved. S1 stated that Complainant's leave status was then changed from AWOL to Leave without Pay (LWOP). Ex. 10, p 4.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
The Minneapolis AJ
Complainant's complaint was initially assigned to the Commission's Minneapolis Area Office, where an AJ issued an Acknowledgment and Scheduling Order. On December 5, 2005, Complainant filed her first set of discovery requests, which included interrogatories, document requests, and requests for admissions for the Agency. On January 6, 2006, Complainant received the Agency's response to her request.
On January 11, 2006, Complainant notified the parties that she considered many of the Agency's responses deficient because they appeared to be inadequate and nonresponsive. On January 19, 2006, the AJ informed the parties that discovery would end on February 3, 2006. On February 14, 2006, Complainant received supplemental responses to her discovery requests from the Agency. On March 8, 2006, Complainant's filed her first Motion to Compel and Request for Sanctions. In the motion, Complainant objected to the Agency's responses to 10 requests for admissions and 12 document requests as unresponsive or inadequate.
On August 10, 2006, the AJ denied Complainant's Motion for Sanctions but granted Complainant's Motion to Compel. Specifically, the AJ ordered the Agency to produce by August 18, 2006, all documents relating to Complainant's medical history and disability; all documents describing the Agency's responsibility to provide a reasonable accommodation; all requests for a reasonable accommodation due to a medical impairment by Complainant's co-workers from 2001 through 2003; and the contact information of all persons the Agency consulted regarding Complainant's medical condition. Also on August 10, 2006, the AJ issued a Pre-hearing Conference Order that stated that the Agency must file any Motion for a Decision without a Hearing by August 28, 2006. The Agency filed a Motion for a Decision without a Hearing on August 28, 2006, to which Complainant responded in opposition on September 14, 2006. On August 28, 2006, Complainant filed a second Motion to Compel and Request for Sanctions on the basis that the Agency failed to properly respond to the AJ's order compelling discovery responses. On September 11, 2006, the Agency responded to Complainant's Motion to Compel and Request for sanctions. The Minneapolis AJ did not rule on the motions, and on or about November 7, 2006, the matter was reassigned to an AJ at the Commission's Milwaukee District Office because the initial AJ became the Acting Area Director for the Minneapolis Area Office.
The Milwaukee AJ
On July 25, 2007, the Milwaukee AJ (henceforth, the AJ) denied Complainant's Motion for Sanctions for Discovery Abuses without explanation. However, also on July 25, 2007, the AJ issued a Compel Order that directed the Agency to produce the following information to Complainant within 14 days:
1. Complainant's military leave requests from 2001 to 2003;
2. All communications relating to Complainant's military leave requests from 2001 to 2003;
3. All other documents referring or relating to Complainant's military leave requests from 2001 to 2003, including but not limited to the denial of her requests for leave, as well as any disciplinary, adverse, personnel or corrective action taken or contemplated;
4. Any newsletters addressing military leave;
5. Any travel orders and military order received from Complainant directing her to report to duty;
6. Complainant's SF 50s from 2000 to 2003;
7. Complainant's time and attendance reports from 2000 to 2003;
8. Complainant's statements of earning and leave from 2000 to 2003;
9. Complainant's injury reports from 2000 to 2003;
10. A complete copy of Complainant's medical file;
11. Any and all requests from the Agency to Complainant regarding submission of medical documentation, or requests for an accommodation;
12. Any and all documents which support Agency's contention that it engaged in the interactive process;
13. All documents, electronic or otherwise, that refer or relate to Complainant's disability status;
14. All documents that describe the Agency's procedures for requesting and providing reasonable accommodations to individuals with disabilities, and the Agency's responsibilities under the Rehabilitation Act;
15. All requests for accommodations due to a medical impairment submitted by other employees; and
16. Identification of the steps taken to preserve, review, and produce responsive electronic information.
The Agency did not provide the information to Complainant as directed by the AJ. On August 15, 2007, the AJ directed Complainant to file a supplemental opposition to the Agency's Motion for a Decision without a Hearing and any Motion for Sanctions for violations of the AJ's Compel Order by August 31, 2007. On August 24, 2007, Complainant filed another Motion for Sanctions regarding discovery, but the Agency did not respond to the Motion until September 6, 2007. The Agency moved for a decision without a hearing, to which Complainant responded in opposition, and the Agency replied on September 13, 2007. On September 19, 2007, Complainant moved for sanctions to strike the Agency's untimely September 6, 2007, Reply to Complainant's opposition to the Agency's Motion for a Decision without a Hearing. The AJ initially scheduled a status conference for September, 20, 2007, but instead of holding the status conference on that date, the AJ granted the Agency's Motion for a Decision without a Hearing.
In a decision dated September 21, 2007, the AJ granted the Agency's August 2006 Motion for a Decision without a Hearing. In that decision, the AJ found that there was insufficient evidence in the record from which a reasonable trier of fact could conclude the Complainant was the victim of unlawful discrimination. Specifically, the AJ found that Complainant failed to provide any evidence from which it could be concluded that the Agency's non-discriminatory explanations for its actions were pretext for unlawful discrimination under a disparate treatment analysis. With respect to Complainant's reasonable accommodation claim, the AJ concluded that the Agency removed the stool at issue in April 2002, but Complainant stated that she did not notify the Agency that she needed the stool as a reasonable accommodation for her disability until June 17 and 18, 2002. Consequently, the AJ concluded that although there was a dispute about whether the stool was a safety hazard, there was insufficient evidence in the record from which a reasonable trier of fact could conclude that the Agency was obligated to provide Complainant with the use of the stool because it did not know until several months after it removed the stool that Complainant needed the stool as an accommodation. Additionally, in a single footnote sentence, the AJ noted that all motions in this case were denied as "moot." 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 argues that the Agency wrongfully excluded her from the investigation, failed to properly respond to discovery requests, and violated orders from two different AJs. Complainant contends that the Agency failed to produce evidence that would have shown that the Agency failed to provide a reasonable accommodation for Complainant's disability and that its explanations were pretextual.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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. 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).
On appeal, Complainant provides an extensive account of a series of actions that she contends occurred when this case was assigned to AJs. Complainant maintains that the Milwaukee AJ assigned to hear this case informed the parties that he did not feel bound by the rulings and orders of the former (Minneapolis) AJ assigned to hear this case. Complainant further maintains that the AJ failed to issue written orders and schedules and denied her request to do so, which is reflected by an inexplicable paucity of documents in the record from the Milwaukee AJ on these matters. Complainant also maintains that the AJ ordered the parties to appear for a conference call on pending motions on February 2, 2007, at 11:30 a.m., but the Agency appeared for the conference call more than 70 minutes late. Complainant contends that the AJ repeatedly denied her requests to sanction the Agency for this matter.
Complainant further contends that during a conference call on February 21, 2007, the AJ granted the Agency's request to conduct a "supplemental deposition" of Complainant. Complainant contends that during the conference call, the AJ further ruled that all expenses for the deposition would be paid by the Agency, including travel expenses. Complainant also contends that on February 22, 2007, the AJ ordered the parties to respond to the question of whether an AJ has the authority to order an agency to bear the costs of taking a supplemental deposition of a complainant by March 1, 2007. Complainant contends that she responded to the AJ's order by March 1, 2007, but the Agency did not comply with the AJ's order. Complainant maintains that on March 9, 2007, the Agency withdrew its request to depose Complainant, and Complainant's counsel objected to the Agency's actions as misconduct that wasted Complainant's and the Commission's time and resources by forcing Complainant to expend nearly nine hours in attorney's fees to comply with the Agency's order. Complainant maintains that the AJ denied her requests for sanctions regarding this matter. Additionally, Complainant contends that the AJ improperly issued a decision without a hearing before discovery had been completed, i.e., before the AJ ruled on Complainant's motion to sanction the Agency.
After a thorough review of this matter, we find that the Milwaukee AJ improperly issued a decision without a hearing. In this case, both the initial Minnesota and subsequent Milwaukee AJs determined that the record was incomplete, and therefore ordered the Agency to provide specific evidence for the record during discovery. Moreover, although the Agency provided supplemental responses to Complainant's discovery requests on February 14, 2006, the record reveals that the supplemental responses to her discovery requests were wholly inadequate, evasive, and non-responsive to her requests. In fact, the Minnesota AJ sought to correct the deficiencies in the Agency's discovery responses when he issued a July 25, 2007, order compelling the Agency to produce 17 types of evidence that were material to Complainant's case.
The Agency failed to comply with the Milwaukee AJ's discovery order, and therefore failed to meet its obligation to fully cooperate during discovery. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 7, � IV.D.1 (b) (Nov. 9, 1999) (noting that during the hearing process, the "parties must cooperate with each other in honoring requests for relevant, non-repetitive documentary and testimonial evidence"). Inexplicably, the AJ compounded the Agency's misconduct by failing to enforce his own order, despite Complainant's persistent pleas for him to do so. Therefore, the record remained inadequately developed when the AJ issued his Decision without a Hearing.
As such, we find that the AJ erred in ruling on the Agency's Motion for a Decision without a Hearing prior to the resolution of the parties' pending discovery dispute. In so finding, we do not find a one-sentence footnote denying Complainant's Request to Compel Discovery to be a meaningful or fundamentally fair resolution of the pending discovery dispute. The AJ clearly was aware of the discovery dispute, and the parties' ongoing efforts to resolve the dispute. The timing of the AJ's ruling effectively precluded Complainant from being able to demonstrate genuine issues of material fact. See Menoken v. Soc. Sec. Admin., EEOC Appeal No. 01A32052 (Jan.3, 2005), citing Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
We note that there remain genuine issues of material fact in dispute. For instance, the Complainant contends that she properly contacted and received approval from management for additional leave when her military duty was extended, but S1 stated that Complainant extended her leave without informing him or contacting the district offices. Complainant also maintains that the stool she used was removed on June 17 or 18, 2002, whereas the Agency contends that it was removed in April 2002. Additionally, Complainant contends that she notified management that she needed the stool because of her medical condition when the stool was removed on June 17 or 18, 2002, whereas management contends that Complainant never informed the Agency that she needed the stool because of a medical condition. These disputed matters are material to determining the merits of Complainant's complaint. Therefore, there is a need for a hearing to assess the credibility of the management officials as well as the credibility of Complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the AJ's finding of no discrimination and the Agency's final order implementing it. We REMAND this case for further proceedings in accordance with this decision and the Order below.
ORDER
1. The Agency shall submit to the Hearings Unit of the Milwaukee District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. 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.
2. The Administrative Judge shall consider all motions and responses to motions submitted by the parties and issue written orders and decisions fully explaining his or her determinations to the parties. Likewise, all notices and scheduling orders must be written and clearly set forth the AJ's requirements and expectations.
3. 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.
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 (R0610)
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 (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
April 12, 2012
Date
2
01-2008-0675
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080675