0120122209
10-12-2012
Larry A. Falcon, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Larry A. Falcon,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120122209
Hearing No. 451-2011-00311X
Agency No. 9P0J11009
DECISION
Complainant filed an appeal from the Agency's April 13, 2012 Final Order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Aircraft Sheet Metal Mechanic at the Agency's Trainer Development Division facility in Randolph Air Force Base, Texas. On February 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Mexican American)1, religion (Catholic), disability (nerve damage), and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
On January 14, 2011, Complainant became aware he was not selected for the position of Sheet Metal Mechanic (Aircraft) Supervisor WS 3806-10 (AFPC 421606-140680-9P-NRR).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 28, 2011, motion for a decision without a hearing and issued a decision without a hearing on March 22, 2012.
In her Decision, the AJ found that the Agency promoted E1 to the supervisory position described in Complainant's complaint (subject position) using the Agency's "by name request" process. In that process, the AJ noted that the undisputed evidence indicated that the selecting official did not receive a list of eligible candidates and did not consider any other applicants for the position. Accordingly, the AJ found no dispute that Complainant was not considered for the position, despite his having applied for it along with a number of other candidates. The AJ found no dispute that E1 was selected for the position without competition.
The AJ considered Complainant's contention that Complainant was not selected because he did not attend the same church as S2, the concurring official in the selection process. The AJ observed that the undisputed evidence showed that E1 did not attend S2's church either. Moreover, the AJ found that Complainant did not present any evidence that the Agency's reasons for using the "by name request" process were false or unworthy of belief. Specifically, the AJ observed that S1 (the selecting official) and S2 both stated that E1 was the obvious choice for the position based on his productivity at any given task since he joined the organization and his performance as a team leader. Moreover, the AJ found that S1 relied on the advice of a staffing specialist regarding the use of the "by name request process" and no evidence showed that the staffing specialist knew Complainant or was aware of Complainant's protected bases. Accordingly, the AJ found the material facts were not in dispute, and that Complainant had not shown that discrimination on any basis motivated the Agency's selection decision.
The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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).
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). Complainant must initially establish a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find the AJ properly issued her Decision without a hearing. We concur that the material facts are not in dispute and that drawing every reasonable inference in Complainant's favor, Complainant has not shown that discrimination occurred as alleged.
We assume without so finding, that Complainant is a qualified individual with a disability. We further assume, for purposes of analysis, that Complainant established a prima facie case of discrimination on all alleged bases. We find, as did the AJ, that the Agency articulated legitimate, non-discriminatory reasons for its actions that Complainant did not show were pretext. We find no dispute that S1 and S2 (and in discussion with another supervisor, S3) agreed that E1 was an ideal choice for the identified position and that, with the guidance of a staffing specialist, used the Agency's "by name request" streamlined hiring process to complete the selection process. We find no dispute that Complainant's qualifications were not compared to those of the selectee by S1 or S2, and that neither Complainant nor any other applicant was considered for the position.
We find no evidence from which it would be possible to conclude that Complainant's protected bases played any role in the decision of S1 or S2 to use the Agency's streamlined selection process. We concur with the AJ that Complainant presented no evidence to show that S1 or S2 unreasonably relied on the advice of the staffing specialist regarding the propriety of the use of that process in this case. Accordingly, we discern no basis upon which to disturb the AJ's Decision.
CONCLUSION
We therefore AFFIRM the Agency's Final Order, finding 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 12, 2012
__________________
Date
1 National origin was added as a basis after Complainant filed his complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122209
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122209