Appeal No. 0120090980
Hearing No. 430-200-800033X
Agency No. 1K-231-0036-07

Decision
On December 5, 2008, complainant filed an appeal from the agency's November 6, 2008 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

Background
At the time of events giving rise to this complaint, complainant worked as a Maintenance Mechanic at the agency's Richmond Processing and Distribution Center facility in Richmond, Virginia. On July 15, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the basis of reprisal for prior protected EEO activity when:  

1. As of May 1, 2007, complainant was subjected to two drug tests;
2. As of May 1, 2007, the agency has not responded to complainant's request for a detail to the Franklin Post Office, and
3. As of May 1, 2007, the agency has failed to update complainant's training records for promotion eligibility.

In her decision, the AJ found that the material facts of complainant's complaint were not in dispute. Both complainant and the agency acknowledge that complainant was required to participate in two random drug tests in 2006, as he alleged. Complainant argues that his position is that of a maintenance mechanic which is not a safety sensitive position that requires employees to undergo random drug testing. Complainant's name appeared on the list of employees subject to testing at the time he was selected for testing.

The AJ found that the selection of employees for random drug testing was accomplished by aTest Consultants, Inc., and that complainant's name was on the list because he held a Commercial Drivers License (CDL). Complainant's name was removed from the list after a manager (M1) realized that complainant no longer used his CDL for agency work. The AJ concluded that complainant failed to establish a prima facie case of reprisal discrimination, noting in part that complainant's prior protected activity occurred in February 2006, while the acts complainant alleged were motivated by reprisal occurred more than a year later in July 2007.

The AJ considered complainant's claim that his request for a detail to the Franklin Post Office remained unanswered by the agency. The AJ found the undisputed evidence showed that no positions at complainant's level were vacant at the Franklin Post Office and that was the reason complainant did not receive a detail to that facility.

The AJ found no dispute regarding complainant's training records. In January, complainant had, as he alleged, completed training in "Ref Air Conditioning" by eLearning (Course No. 5560303). Ml acknowledged that complainant had taken the course, but Ml did not realize that complainant's training records had not been updated, and that his records have since been updated to reflect the training.

The AJ found no evidence to establish that the reasons cited by agency for its actions were not true and that discrimination was the real reason for the drug tests, the failure of the agency to grant complainant's request for a detail, and for complainant's training records to need updating, as complainant alleged. The AJ found no facts to establish that reprisal motivated the agency's actions and no other facts connected complainant's prior EEO activity to any of the actions complainant claimed were discriminatory. Accordingly, the AJ found a hearing was not necessary and that drawing every inference in complainant's favor, that complainant had not shown that discrimination occurred.

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.

On appeal, complainant states that he has established a prima facie case of reprisal discrimination. Specifically, complainant's prior EEO matter was settled in March 2006. Complainant states that less than a year later he was selected for random drug testing, when complainant's name should have been removed from the random drug test list in July 2006. Further, complainant states that part of the March 2006 settlement of complainant's prior complaint required the agency to provide proper training and update complainant's records within one year of March 2006.1 M1 replaced complainant's prior supervisor, S1, in January 2007. Complainant's alleges that it was M1 who failed to respond to complainant's requests to update his training records until March 2007.

Complainant states that he timely responded to the AJ's notice of intent to issue her decision without a hearing and in his response, detailed the above facts at odds with the AJ's recital of undisputed facts. Complainant argues that a reasonable fact finder could find that M1 was aware of complainant's prior protected activity and aware that complainant's training records were not up to date as alleged in complainant's complaint.

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, § VLB. (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"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and agency's, factual conclusions and legal analysis -including on 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").

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. 01 A24206 (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).

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).

Complainant can establish a prima fade case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security 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 Coffina v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 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. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

In the instant case, we find that the AJ properly issued her decision without a hearing. We consider complainant's appeal brief as well as his statement in opposition to the AJ's notice of her intent to issue a decision without a hearing. We find complainant has not presented evidence in dispute of the agency's legitimate reasons for its actions.

Specifically, complainant does not dispute that he previously operated a vehicle for which duties he was required to possess a Commercial Drivers License and for which random drug testing was required. Neither party disputes that complainant no longer operates such equipment and neither party disputes that complainant should not be subjected to random drug testing any longer. Complainant has not shown how retaliation motivated the agency to leave his name on the list for possible random drug searches or that failing to remove complainant's name from the list was even done knowingly.

Similarly, we find no dispute that complainant's training records should have been updated prior to the time that they were updated. We find no objective evidence that M1 knew that complainant's training records were not updated or that he failed to update those records in a timely fashion when he discovered they were not up to date.

We find the record reflects that the delays accompanying complainant's training records, as well the agency's failure to respond to complainant's informal requests for a detail assignment to Franklin Post Office, were not unreasonable and that no evidence presented, when viewed in the light most favorable to complainant, shows that the agency to have been motivated by reprisal for complainant's prior protected activity.

Conclusion
The Commission AFFIRMS the agency's final action finding no discrimination.
 

Statement of Rights -- On Appeal Reconsideration 

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:

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).

Complaint's Right to File a Civil Action 
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 
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").