John P. McDade, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionAug 14, 2002
01a03792 (E.E.O.C. Aug. 14, 2002)

01a03792

08-14-2002

John P. McDade, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


John P. McDade v. Department of Transportation

01A03792

8/14/02

.

John P. McDade,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A03792

Agency No. DOT-1-98-1057

Hearing No. 170-99-8290X

DECISION

Complainant timely initiated an appeal from a final agency order

concerning his complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission reverses and remands the agency's

final order.

The record reveals that during the relevant time, complainant was

employed as a Computer Specialist at the agency's Atlantic City, New

Jersey facility. Complainant sought EEO counseling and subsequently filed

a formal complaint on March 2, 1998, alleging that he was discriminated

against on the bases of disability (prostate cancer) and age (61 at the

time) when he was reassigned from his Supervisory Computer Specialist,

GM/FM-334-14 position to a Computer Specialist FG-334-14 position.

At the conclusion of the investigation, complainant was provided a

copy of the investigative file and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing

finding no discrimination.

Complainant alleged in his complaint and affidavit that following

his return from an approved absence related to his prostate cancer

in January 1997, he learned that there had been some complaints about

his management style from contractors and individuals he supervised.

Complainant states that he attempted to rectify the problem with his team,

but the environment became increasingly hostile for him when management

failed to provide him with appropriate support.

Complainant averred that during an April 1997 meeting with the Branch

Manager, he complained that the lack of managerial support was causing him

stress which was having a detrimental affect on his illness. Complainant

alleged that in response, the Branch manager suggested that complainant

take additional sick leave, which complainant declined. Complainant then

suggested that some of his supervisory duties be transferred to another

branch until the problem was rectified. According to complainant, the

Division Manager initially agreed, but then suggested that complainant

transfer to a non-supervisory position in order to reduce stress, which

would have a beneficial effect on his health. Complainant averred that

he neither requested the reassignment, nor did he concur with the Branch

Manager's suggestion. Soon thereafter, complainant's position was posted,

but complainant did not apply. In response to the vacancy announcement,

the agency selected for the position a non-disabled younger male.

Complainant averred that on September 9, 1997, the Branch Manager

notified him that he would be removed from his supervisory position.

The following day, complainant requested reconsideration of the decision,

and he alleged that the Division Manager declined, citing complainant's

health problems, and the health benefits of a non-supervisory position.

Complainant averred that November 5, 1997 was the effective date of

his reassignment. This complaint followed.

In her decision, the AJ initially dismissed the complaint because

she determined complainant failed to timely contact an EEO Counselor.

In that regard, the AJ found complainant learned of his reassignment on

September 9, 1997, but failed to contact an EEO Counselor until December

3, 1997. Although the AJ acknowledged that complainant received his

SF-50 official notification of the reassignment on November 5, 1997,

she found complainant was put on notice of the reassignment and should

have contacted an EEO Counselor within 45 days of September 9, 1997.

Assuming, arguendo, that complainant timely made EEO Contact, the AJ

then determined that complainant failed to establish a prima facie

case of age or disability discrimination because he failed to establish

that similarly situated individuals outside of his protected class were

treated differently under similar circumstances. The AJ also found that

by January 1997, management was aware that complainant suffered from

terminal prostate cancer. Additionally, the AJ found that complainant's

terminal cancer rose to the level of a disability because it would have

a substantial impact on complainant's major life activities, and that

complainant was a qualified individual with a disability.

The AJ then concluded that complainant requested a reasonable

accommodation when he complained of the stress of his supervisory

position. Although the AJ acknowledged that complainant denied ever

requesting an accommodation, the AJ found this was not a material issue

in dispute, since complainant averred that he consented to have some of

his supervisory duties transferred to someone else. The AJ further found

that the agency need not necessarily provide the accommodation requested.

Furthermore, the AJ found that complainant's replacement did not raise

an inference of discrimination.

As for complainant's claim that he was subjected to a hostile work

environment, the AJ found no evidence to support his contention.

Rather, the AJ found that complainant's allegation only encompassed

his belief that management was not supporting his efforts to resolve

personnel issues.

The AJ then concluded that the agency proffered legitimate,

nondiscriminatory reasons for the reassignment; that complainant requested

a non-supervisory position. In response, the agency granted his request.

In sum, the AJ found complainant failed to establish he was subjected

to age or disability discrimination.

On April 5, 2000, the agency issued a final action that implemented the

AJ's decision.

On appeal, complainant contends, among other things, that the AJ

misapplied summary judgment standards. In particular, complainant

contends that the AJ credited the agency's testimony, and drew no

reasonable inferences in complainant's favor. Furthermore, complainant

argues that the AJ failed to provide him with notice that the complaint

was to be dismissed for untimely EEO Contact. In that regard, complainant

argues that the reassignment decision was not made final until November 5,

1997, since he was still supervising his employees until that time.

The agency stands on the record and requests that we affirm its final

action implementing the AJ's decision.

As initial matter, we disagree with the AJ's dismissal for failure

to make timely EEO Contact. 29 C.F.R. � 1614.105(b) states that an

aggrieved person must initiate contact with a Counselor within 45

days of the date of the matter alleged to be discriminatory or, in

the case of personnel action, within 45 days of the effective date of

the action. In the present case, complainant contends that he was not

officially reassigned until November 5, 1997, when he received his SF-50.

In addition, he contends that he continued his supervisory functions

until this time. There is clearly a dispute in the record as to whether

complainant was in fact in his former position until November 5, 1997.

We also note that 29 C.F.R. � 109 (b) states administrative judges

may dismiss complaints pursuant to 29 C.F.R. � 1614.107, on their own

initiative, after notice to the parties, or upon an agency's motion to

dismiss a complaint. (Emphasis added). Finding no notice of a potential

dismissal in the record, we agree with complainant's contention that he

should have been afforded the opportunity to respond to the dismissal.

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, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

The courts have been clear that summary judgment is not to be used as

a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st

Cir. 1975). The Commission has noted that when a party submits an

affidavit and credibility is at issue, "there is a need for strident

cross-examination and summary judgment on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, we find that the AJ erred when she

concluded that there was no genuine issue of material fact in this case.

In finding no discrimination, the AJ relied on the representations of

management officials as provided in their affidavits when they averred

complainant was reassigned in response to a request made by him. The AJ

found, despite complainant's contention to the contrary, that he in

fact requested a reasonable accommodation of his disability. After a

careful review of the record, we find there is a dispute which goes to

the agency's reasons for its actions, as to whether complainant in fact

made the request for reassignment. Complainant averred that he did not

request a reassignment, he only suggested that some of his supervisory

duties be transferred. This is a material dispute which can only be

resolved at a hearing where the credibility of the witnesses, including

complainant himself, can be examined. Even if complainant requested

a reasonable accommodation, he contends he only requested that some of

his supervisory responsibilities be removed. Instead, complainant was

reassigned to another position. If complainant requested a reasonable

accommodation, a dispute exists as to whether the agency's response was in

fact, reasonable under the circumstances. Finally, complainant alleges

that the agency perceived complainant as an individual with a disability

who should have less management responsibilities for health reasons.

We note that the hearing process is intended to be an extension of the

investigative process, designed to �ensure that the parties have a fair

and reasonable opportunity to explain and supplement the record and to

examine and cross-examine witnesses.� See EEOC Management Directive

(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also

29 C.F.R. � 1614.109(e). �Truncation of this process, while material

facts are still in dispute and the credibility of witnesses is still

ripe for challenge, improperly deprives complainant of a full and fair

investigation of her claims.� Mi S. Bang v. United States Postal Service,

EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United

States Postal Service, EEOC Request No. 05950628 (October 31, 1996);

Chronister v. United States Postal Service, EEOC Request No. 05940578

(April 23, 1995). In summary, there are simply too many unresolved

issues which require an assessment as to the credibility of the various

management officials, co-workers, and complainant, himself. Therefore,

judgment as a matter of law for the agency should not have been granted.

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission reverses the

agency's final action and remands the matter to the agency in accordance

with this decision and the Order below.

ORDER

The agency shall submit to the Hearings Unit of the Philadelphia 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. Thereafter, the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

8/14/02

Date