01a03792
08-14-2002
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