0120064720
12-18-2007
Mark Benedict, Complainant, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Mark Benedict,
Complainant,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120064720
Hearing No. 100-2005-00317X
Agency No. FSIS-2003-040085
DECISION
On August 17, 2006, complainant filed an appeal from the agency's July
12, 2006, 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., 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 deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission reverses the
agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the AJ, in making the decision not
to hold a hearing, correctly determined that the record was adequately
developed and that there were no genuine issues of material fact in
dispute.
BACKGROUND
The record reveals that complainant served as a senior team member
on the staff of a U.S. Presidential Committee for Persons Who Are
Blind or Severely Disabled from November 1990 through the summer of
2000, when he transferred to the agency. He then held the position
of Program Analyst, GS-0343-13, in the agency's Office of Policy and
Program Development (OPPD), Regulations and Directive Development Staff.
On November 10, 2003, complainant filed an EEO complaint alleging that
he was discriminated against based on his race (Caucasian), sex (male),
age (DOB: 01/30/51) and disability (left side paralysis and short term
memory recall difficulties) when, since July 2001:
1. He has been subjected to crude language, insensitive remarks,
criticism and threats regarding his work performance and job security
by his supervisor (S-1);
2. In September 2003, he received an unacceptable performance rating
for the 2002-2003 rating cycle;
3. He was denied a performance award for the 2002-2003
rating cycle;
4. He was instructed to resign from outside activities;
5. His time and attendance sheet was modified without his knowledge
and consent, deducting six hours;
6. Derogatory e-mails regarding him were sent to individuals within
and outside his division;
7. Black females received preferential treatment to include not
having to comply with office procedures;
8. Since 2003, his supervisor has given him misleading, confusing
and inaccurate guidance which has resulted in the need for needless
multiple drafts and attributed to his writer error;
9. His requests for writing classes and a mentor were
denied;
10. Upper management failed to adequately address the hostile work
environment when it was brought to their attention;
11. His reasonable accommodation request for a neutral observer to
attend his meetings with management was denied;
12. In October 2003, his supervisor canceled a meeting to discuss
reasonable accommodation issues with the FSIS Reasonable Accommodation
Coordinators;
13. He was threatened with losing his job if he asked for
too many accommodations;
14. His request to work at home during inclement weather
became an issue during
Hurricane Isabel; and
15. He was not selected for a Grade 14 Analyst position advertised
for the FSIS, OPPD, RODS staff and a second Grade 14 was awarded as a
promotion without being formally announced.
Complainant also alleged that he was discriminated against based on
reprisal when senior management refused to convert him from Schedule
A status to competitive employment status, thus denying him promotion
potential.1
At the conclusion of the agency's investigation, complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over complainant's objections,
the AJ assigned to the case granted the agency's April 19, 2006 motion for
a decision without a hearing and issued his decision on June 26, 2006.
The AJ found that the agency's motion correctly set forth the material
facts, and he thereby adopted them. These facts, in relevant part,
consisted of the following: after the agency opted to use Schedule A
authority to appoint complainant to the Program Analyst position, he
was converted to competitive status under the provisions of Executive
Order 12125 on or about April 22, 2004. The agency provided him with a
range of reasonable accommodations when it hired him and on a continuous
basis thereafter. He applied for the Grade 14 Analyst positions, but
S-1 selected others because they had more experience than complainant
in drafting regulations, better abilities to analyze complex issues and
to deal with those issues in a timely manner, and wrote well with little
guidance and under tight deadlines.
In September 2003, S-1 provided complainant with an unsatisfactory
performance rating. She asserted that he did not satisfy one of his
critical performance elements in that he failed to produce acceptable
finished products, and that his work products did not demonstrate problem
solving skills and incorporated irrelevant material. Due to a technical
error, the performance rating was declared null and void, and complainant
received a Superior rating based on the prior year's rating.
The AJ determined that the agency articulated legitimate nondiscriminatory
reasons for its actions. For example, complainant's "unacceptable"
performance rating was due to his "substandard" analytical and writing
skills; and he was not selected for the position in question because "his
writing skills were assessed as not only not clearly superior to those of
the selecetee(s), but as inadequate for the requirements of the position."
Moreover, the AJ noted that the agency's motion correctly stated that the
issues raised by complainant, if assumed to be accurate, either fail to
state a claim or fail to establish a prima facie case of discrimination,
including but not limited to claims 1, 3, 4, 5, 6, 7, 8, 11, 12, and 14.
He similarly determined that S-1's remarks, as noted in claim 1, were
not related to complainant's protected bases because S-1 behaved in the
same manner toward all her employees, and that the employee referred to
in claim 7 was not similarly situated to complainant. He further found
that complainant's perception that his job was threatened was based on
his interpretation of S-1's statements regarding another employee and her
requests for accommodations. Finally, he concluded that the totality
of the record failed to show that the agency discriminated against
complainant on the bases of race, sex, age, disability, or in reprisal.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Complainant appeals from that order. In his statement
on appeal, he explains, among other things he has received a rating of
Superior or higher and awards in every year of his federal employment
until the events surrounding the subject claims. Moreover, he asserts
that S-1 and second-line supervisor (S-2) have repeatedly told him and
others that he does not function well, and that he is "not a productive
employee," despite his evaluations issued by S-2 of Outstanding in 2001,
Superior in 2002, and then-current rating of Fully Satisfactory in July
2005. He also contends that, as a person with a targeted disability,
the agency has repeatedly denied him the opportunity to fairly compete
for advancement to a GS-14 position, and that the agency has a well
documented history of not promoting individuals with severe disabilities
to higher grades.2
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999) (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo").
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. Department of Defense, 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. 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).
After a careful review of the record, we find that the AJ erred when
he issued a decision without a hearing. A review of the AJ's decision
reveals that he accepted as true the agency's version of the facts.
By doing so, the AJ was inevitably and inherently weighing the evidence,
assessing the credibility of interested parties, and deciding that the
agency's explanation of events was more believable than complainant's.
See Petty, supra. At the outset, complainant has set forth facts
to support an inference of discrimination, despite the AJ's finding
that he did not. Specifically, S-1 admitted to having a discussion
with complainant regarding another employee who requested reasonable
accommodations and was later terminated. Although the AJ found that
it was merely complainant's perception that his job was threatened, we
find that the substance and context of the discussion must be considered
to determine whether S-1 was merely telling an anecdotal story at an
inappropriate time, or whether she sought to deter complainant from
requesting further accommodation. Moreover, while S-1's statements
alone may not state a claim, they, when considered in light of the
other evidence contained in the record, do create an inference of
discrimination and speak to S-1's possible attitude towards those who
request accommodations.
Moreover, we find that a genuine issue of material fact exists as to the
agency's legitimate nondiscriminatory reason for its actions relating to
complainant's unacceptable performance rating,3 denial of an award, and
nonselection. Specifically, the agency's reason consists merely of the
bare assertions that complainant failed to regularly produce acceptable
work products, made repeated submissions to his supervisor because his
writing was "neither clear nor succinct," and failed to "demonstrate
sound problem solving principles." Despite these assertions by S-1, and
agreement by S-2, the record reveals that, during this period, complainant
received a "SPOT" award for work he performed on a project for another
supervisor (S-3), and S-3 averred that complainant's work on the project
was Fully Successful. Nonetheless, S-1 did not consider complainant's
work with S-3 in preparing his performance rating. Moreover, several
of complainant's coworkers testified to complainant's knowledge and
professionalism, and one coworker averred that everyone's work was
repeatedly submitted to a supervisor before becoming final, due to the
type of work the office produced. While we reach no conclusions based
upon the conflicting testimony of record, we find that the quality of
complainant's work product presents a genuine issue of material fact
that cannot be resolved in a decision without a hearing, and that
an assessment as to the credibility of the various witnesses must
be conducted. We note that these are but a few examples of material
facts in dispute, and we remind the parties that 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).
Moreover, many of the incidents described by complainant constituted a
claim of hostile work environment, yet the AJ and the agency disposed of
this claim in a piecemeal manner. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). As a result, the record
was not sufficiently developed such that a fact-finder could determine
whether a hostile work environment may have existed based upon one of
complainant's protected bases. Claims 1, 4, 5, 6, 7, 8, 11, 12, and
14, for example, were found to either fail to state a claim or fail
to establish a prima facie case of discrimination. We find, however,
that the aforesaid claims, along with all the other incidents, should
be analyzed as part of a hostile work environment that complainant
claimed was created by S-1.4 We note that, with respect to claim 1,
while S-1 may have a "rough vocabulary," her insensitive remarks,
open criticism, and possible threats, standing alone, state a claim of
hostile work environment. We note in this regard the testimony of
several individuals that S-1 regularly criticized complainant's work
in the presence of his coworkers. Whether S-1 spoke poorly of all her
employees in an open, hostile manner remains unresolved by the record.
For the aforesaid reasons, we find that this matter is not ripe for a
decision without a hearing because there are genuine issues of material
fact in dispute. Therefore, after a careful review of the record, the
Commission reverses the agency's final order and remands the matter to
the agency in accordance with this decision and the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to submit a request to the Hearings Unit of the
Washington Field Office for scheduling of a hearing. The agency is also
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 30 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
___12/18/07________________
Date
1 The record reveals that complainant was converted from Schedule A status
to competitive employment status pursuant to an April 22, 2004 request.
2 To the extent that the agency challenges complainant's assertion
regarding the representation of individuals with targeted disabilities in
the agency, we direct the agency to review EEO Management Directive 715
(MD-715) and accompanying reports.
3 We note that even where the unacceptable performance rating was declared
null and void, complainant may be entitled to relief for the period of
time that the rating remained his rating of record. In this respect,
the Commission has held that the potential for compensatory damages
means that an allegation cannot be dismissed as being moot without
a determination being made as to whether complainant is entitled to
compensatory damages. See, e.g., Watson v. Department of the Navy, EEOC
Request No. 05970452 (January 8, 1999);Huhn v. Department of the Treasury,
EEOC Request No. 05940630 (February 16, 1995); Ellicker v. Department of
Agriculture, EEOC Request No. 05931079 (September 22, 1994); and Salazar
v. Department of Justice, EEOC Request No. 05930316 (February 9, 1994).
4 The Commission notes that claim 10 contends that the agency failed to
take appropriate and immediate remedial action, and as such, presents
the question of whether liability attaches to the alleged hostile work
environment. McCleod v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682
F.2d 987, 903 (11th Cir. 1982); Hayes v. United States Postal Service,
Appeal No. 01954703 (January 23, 1998) (Where the agency knows or has
reason to know about the occurrence of acts of sexual harassment on the
part of its employees but fails to take immediate and effective action
reasonably calculated to end the harassment, it will be held liable.).
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0120064720
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120064720