0120100363
02-15-2012
Mark W. Kirkpatrick, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Mark W. Kirkpatrick,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120100363
Hearing No. 560-2008-00257X
Agency No. 4L0J07001
DECISION
JURISDICTION
On October 23, 2009, Complainant filed an appeal from the Agency’s
September 28, 2009 final order concerning his equal employment opportunity
(EEO) complaint alleging retaliatory discrimination. The Commission
deems this appeal as timely and accepts it pursuant to 29 C.F.R. §
1614.405(a). For the following reasons, the Commission VACATES the
Agency’s final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) properly issued summary
judgment, finding no retaliatory discrimination when the Agency terminated
Complainant, a temporary worker, less than a month after he had testified
at an EEOC hearing for a coworker.
BACKGROUND
In 2005, Complainant was hired as a temporary painter of aircrafts at
the 97th Air Mobility Wing, Altus Air Force Base, OK. He wanted to be a
permanent employee and thought his best chance at securing a permanent
position was to stay in the “paint shop.” But over the next two
years, he was detailed to other assignments.
Experiences While on Detail
First, he was detailed to the “survival shop” as a fabric worker from
April 2006 to May 2006. Next, he was detailed to the “paint shop”
as a work leader for aircraft painters from May 2006 to September 2006.
Complainant received relatively favorable reviews for the work-leader
detail, except for his communication with subordinates.
In a September 19, 2006 email, Complainant’s third-level supervisor
suggested that after the work-leader detail expired, Complainant should
be detailed indefinitely to another shop, because it was unlikely that
the Agency would have a permanent painter position available in the
future, and the other section could use Complainant’s help. Therefore,
in November 2006, Complainant began a new detail as a tools and parts
attendant in the sheet metal shop.
EEO Activity, Work Availability, and Termination
On March 2, 2007, Complainant testified at a coworker’s hearing before
an EEOC Administrative Judge (AJ).
Ten days later, on March 12, 2007, Complainant’s detail supervisor
emailed the second and third-level supervisors, stating that he had
evaluated Complainant’s workload requirements and concluded that the
detail could be terminated because assigned employees could handle the
remaining workload.
The next day, on March 13, 2007, Complainant’s second-level supervisor
confirmed in an email that Complainant’s detail had ended because he was
no longer needed. Further, the second-level supervisor reported that the
paint shop did not have enough work to keep all the painters busy (one
project was caught up and another was in good shape) and was detailing
them to the sheet metal shop for cross-training. The second-level
supervisor requested the third-level supervisor to look for other
temporary employment for Complainant, whose term would end in June 2007.
On April 2, 2007, the third-level supervisor terminated Complainant,
stating that his temporary employment was no longer required because one
project was drawing to a close and another was in “excellent shape.”
Complainant filed an EEO complaint, alleging discrimination on the basis
of reprisal for prior EEO activity when the Agency terminated him on
April 2, 2007.
At the conclusion of the investigation, Complainant was provided a
copy of the investigative file and requested a hearing before an AJ.
The AJ issued a decision without a hearing, finding no discrimination.
AJ Decision
The AJ determined that the Agency articulated a legitimate,
non-retaliatory reason for terminating Complainant. Management emails
showed that Complainant had been detailed to several different shops
to keep him gainfully employed, but there was no further work for
him by March 2007. The AJ relied on a declaration by the third-level
supervisor, who stated that he twice offered Complainant another job
in “early 2007” in the Aircraft division, but Complainant turned
down those offers. Because Complainant had declined the offers, the
third-level supervisor decided to terminate Complainant’s temporary job.
The AJ found that the evidence failed to support Complainant’s
assertions that management was not credible and that there was still
work for him to do.
The Agency’s final action implemented the AJ’s decision.
CONTENTIONS ON APPEAL
Complainant first contends that the record was not adequately developed
for summary disposition. To try to show that the Agency’s explanation
for terminating him (lack of work) was pretextual, Complainant requested
that the Agency provide information on subsequent hirings following
his termination. Complainant maintained in his opposition to summary
judgment that a few weeks after it terminated him, the Agency posted
job listings on USA Jobs and subsequently hired a permanent painter.
However, the Agency objected to Complainant’s requests for information
because they were unduly burdensome, vague, and irrelevant. Therefore,
no such information was included in the record.
Complainant next maintains that there are genuine issues of material fact
in dispute. Complainant disputes the third-level supervisor’s testimony
that Complainant had rejected two job offers. Complainant argues that
there are no documents in the record with his signature showing that
the Agency offered him a job, or that he turned down an offer.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision, we review de novo the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them.
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). We are free to accept (if accurate) or
reject (if erroneous) the factual conclusions and legal analysis of
the AJ and Agency–including 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”).
First, 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 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).
After a careful review, we determine that the AJ erred in issuing summary
judgment because there remain genuine issues of material fact in dispute
and the record was not adequately developed for summary disposition.
First, the record shows that Complainant’s last detail assignment
was originally intended by management to be of indefinite duration.
Yet nine days after Complainant testified at a coworker’s EEOC
hearing, Complainant’s detail supervisor “evaluated” the workload
requirements for Complainant’s detail assignment and determined that
the detail could be terminated because the work could be assigned
to permanent workers. The record contains no emails, documents, or
testimony to explain the circumstances or reasons that prompted the
detail supervisor to evaluate Complainant’s workload requirements in
the first place. The detail supervisor did not respond to requests by the
EEO investigator for an interview. And no other Agency official explained
in their declarations or emails why the detail supervisor felt compelled
to do a formal evaluation of Complainant’s workload requirements,
shortly after Complainant had testified against management in an EEO case.
Second, we find that the record was not adequately developed to
determine whether the Agency’s primary explanation for terminating
Complainant (lack of work) was a pretext to hide a retaliatory motive.
During discovery, Complainant requested, but the Agency declined to
provide, information on subsequent hires by the Agency. Similar to a
non-selection case, in which an initial inference of discrimination
can be drawn when an Agency does not hire a qualified applicant and
instead hires someone outside of the applicant’s protected group,
an inference of retaliatory discrimination could be drawn in this case
if there is evidence that the Agency hired other painters shortly
after terminating Complainant. Such evidence would challenge the
credibility of the Agency’s articulated explanation that there was a
lack of work for Complainant, a qualified painter, to do. Because the
Agency declined to provide Complainant with this potentially relevant
information, we conclude that the record was not adequately developed
for the AJ to determine on summary judgment that Complainant failed to
demonstrate pretext.
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, in appropriate
instances, to examine and cross-examine witnesses." See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1
(November 9, 1999); see also 29 C.F.R. § 1614.109(e). Therefore, the
Commission VACATES the Agency’s final order and REMANDS the complaint
for a hearing before an EEOC Administrative Judge, in accordance with
this decision and the order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the
Hearings Unit of the EEOC Dallas District Office 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 hold a hearing
and 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
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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
___2/15/12_______________
Date
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0120100363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100363