Joseph Stump,

Complainant,



v. 



Janet Napolitano,

Secretary,

Department of Homeland Security,

(U.S. Secret Service),

Agency.



Appeal No. 0120082599



 Hearing No. 570-2007-00254X

 

Agency No. DHS USS 06-0038



DECISION



Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's April 7, 2008 final order concerning an
equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.  



ISSUE PRESENTED



The issue presented by this appeal is whether the instant EEO complaint
was appropriately adjudicated by summary judgment in favor of the agency.



BACKGROUND



During the period at issue, complainant was hired by the agency in 1984
as an Officer in the Uniformed Division (UD) of the Secret Service in
Washington, D.C.  He was promoted to Sergeant in 1990, and to Lieutenant
in 1996.  He has worked in all branches of the UD and has received
numerous commendations for his work.



For several months in 2004, complainant was on leave without pay and
received workers' compensation from an on-the-job injury resulting in
herniated disks in his back and neck. Complainant stated that because of
the herniated disks, he lost strength in his left arm and experienced
numbness.  Complainant also stated that he had difficulty sleeping and
often slept in a chair instead of a bed. Complainant stated that he
has recovered, in part, but will eventually need surgery to correct
the condition.  Complainant stated that he takes over-the-counter
pain medication and uses a home traction unit.  However, complainant
stated that he is able to perform all of the duties of his position and
no reasonable accommodation is needed.  In January 2005, complainant
returned to work in a full duty capacity.



In April 2004, complainant's son was diagnosed with autism.  Complainant
believes that he has been denied a promotion to Captain due to his son's
disability, because the selection decision-makers thought having to take
care of his son would have an effect on his ability to perform as Captain.
As evidence of this, complainant indicated that an agency Inspector,
who knew the Chief of UD (Chief) for 20 years and worked in the Chief's
office, told him after one of his non-selections that "midnight shifts
work well for [you] given the situation with [your] injury and [your]
son's problems and that it is not too bad to stay on as a lieutenant
for the rest of [your] career."



The record reflects that promotions to Captain are made in accordance with
a published Merit Promotion Plan (MPP).  The record further reflects
that candidates for promotion receive a promotion score based on a
combination of their Supervisory Evaluation, Deputy Chief Review Board
and Oral Interview Panel (OIP) score.  The Supervisory Evaluation and
OIP scores are each worth 30% of the total score and the Deputy Chief
Review Board makes up the remaining 40% of the total score.



A new "Promotion Register" is created each promotional cycle with the
names of all qualified Lieutenants eligible for promotion to Captain
in rank order by score.  The record reflects that for each vacancy,
a Merit Promotion Certificate is created consisting of the top 15
scoring candidates from the Promotion Register.  The candidates' names
on each Merit Promotion Certificate are arranged in alphabetical order
without reference to the numerical rank order on the Promotion Register.
The record reflects that the selecting official may select any of the
candidates listed on the Merit Promotion Certificate for promotion to
a vacant Captain position.



On the 2005 promotion register, complainant's scores were significantly
lower than they had been the year before.  In 2004, his composite score
was 32.8, but in 2005, his score had dropped to 14.9.  As a result,
his ranking dropped from 2nd to 28th place, below the top 15 cutoff
for the Merit Promotion Certificate.  Therefore, he was not considered
for promotion to Captain.  The agency made a number of selections for
Captain from the 2005 Register, all made in rank order.



On November 30, 2005, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.



On April 28, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
on the basis of disability (disc injury to neck) and association with
a disabled person (family member) when:  



his board scores were lowered for the promotion of May 20, 2005,1
and the promotion cycle effective November 25, 2005, resulting in
his non-referral for the position of Captain, under Merit Promotion
Certificate No. 06-2792, dated January 5, 2006, and selections made in
2006 that were based on his scores in question.



Following the investigation into his formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ).  In his
"Review of Partial Dismissals and Motion for Protective Order" dated
October 3, 2007, the AJ addressed complainant's objection to the agency's
dismissal of his claims.  The AJ determined that there was a possible
deterrence by an EEO Official that brought the May 20, 2005 promotion
within the scope of the instant complaint.  The AJ further determined
that he would therefore accept the non-selection of May 20, 2005,
as well as selections made from the 2006 promotion register. The AJ,
however, determined that promotions prior to May 2005 could only be used
as evidence regarding the accepted claims.  



The agency thereafter filed a Motion for a Decision Without a Hearing on
November 28, 2007.  Complainant filed a response to the agency's motion
on December 20, 2007.  The AJ issued a decision without a hearing on
March 13, 2008, in favor of the agency.



In his decision, the AJ found that complainant did not establish a
prima facie case of disability or associational discrimination.  The AJ
further found that even assuming, arguendo, complainant established a
prima facie case of disability and/or associational discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions
which complainant failed to show were a pretext for discrimination.
The AJ found that in regard to claims (1) and (2), the record reflects
that complainant was not the best qualified candidate for any of the
selections.  The AJ determined that while complainant argued that the
scoring process was too subjective to be free of any taint, he failed
to provide any evidence that his or his son's purported disability was
a motivating factor when the evaluations were made.  The AJ also noted
that the record reflects that complainant did not perform at his best
when he was interviewed for the subject positions.



The AJ noted that complainant's score was lower in 2005 than it was
in 2004 in all three phases of the evaluation process (Supervisory
Evaluation, Deputy Chief Review Board and OIP).  Complainant's rank fell
from 2nd on the Promotion Register effective November 1, 2004 through
November 1, 2005, to 28th on the Promotion Register effective November 1,
2005 through November 1, 2007.  



The AJ noted that the Chief stated that "for the 2005 performance
cycle, the scores for most officers were generally lower than in 2004.
With regard to the Complainant, a preview of his file indicates that his
score was lower in 2005, in all three phases of the evaluation process.
However, the most significant change in Complainant's score came in
his Oral Interview Panel score which was 32.8 in 2004 and 14.9 in 2005
(The Oral Interview Panel also includes the OIP written score, which
rose from 5.0 to 7.0 for the Complainant between 2004 and 2005)."



The Chief further stated that he also reviewed the evaluators' notes
from the 2005 OIP concerning complainant's interview.  Specifically,
the Chief stated that "the general consensus among the evaluators was
that the Complainant performed poorly during this phase. The evaluators'
notes contain the following comments about the Complainant's interview:
"too much rambling", "totally confused me", "rambled on all answers",
"read too much into questions", "rambling - no direct order", "jumped back
to [prior question]", and "added to the story."  Complainant therefore
received scores which reflected his poor performance.  As this score
represented 30% of Complainant's overall score, Complainant's weak
performance during this phase of the process accounts for his lowered
overall score and corresponding ranking on the promotion ranking."



With regard to May 2005 nonselection (when complainant was ranked 2nd
on the register), the AJ noted that according to the Chief, the selectee
(ranked 7th on the register) was chosen because he was the best candidate.
The Chief further stated that the selectee had more experience in the UD
than complainant and that the Deputy Chiefs recommended selectee for the
subject position.   The Chief stated that he, the Assistant Deputy and
the Deputy Chiefs "consistently are trying to pick the best candidate
that we can.  That's whether we go from the highest score candidate to
the lowest, if we go from the first or the highest scoring candidate to
the third high scoring.  We are consistently trying to select the best
candidate we can."  The Chief further stated "we are always trying to
select the best candidate possible.  If there were some overwhelming
reasons for us to select the 15th candidate over the first candidate,
then we would discuss that.  That would have been in accordance with
the merit promotion plan, if we did that."



The Deputy Chief (DC) stated "the scores don't necessarily play in,
you know.  We may have a strong candidate in the top 15 that didn't
necessarily have a high score, but based on our knowledge of the
particular candidate, certainly someone that didn't have the highest
score could certainly get promoted."



On April 7, 2008, the agency issued its final action implementing the
AJ's summary judgment decision.  The instant appeal followed.



CONTENTIONS ON APPEAL



On appeal, complainant argues that the AJ improperly granted summary
judgment in favor of the agency because there remain genuine issues of
material fact that can only be resolved through a hearing. Complainant
argues that on the 2004 Promotional Register, he was ranked second but
was not selected for one of the seven promotions.  Complainant further
states that the highest ranked candidate "was promoted first, on January
5, 2005, and [Complainant] was passed over for promotion on the next
six occasions."  Complainant argues that the general criteria the agency
gave for making the selection was vague and conclusory.  Complainant
argues that the one specific factor that has always been used as a
criteria for promotion was a candidate's rank on the promotional roster.
Complainant stated that the Chief explained that the agency followed the
list of scores "unless there was an overwhelming reason why we shouldn't
selected someone."  



Further, complainant argues that while the agency stated they did
not change the criteria for selecting candidates of the Registers
from the 2004 to 2005 list, the agency made eight promotions from the
2005 Register and every promotion was made in rank order.  Complainant
argues that the agency witnesses "recalled almost nothing regarding any
individual promotion decisions."  Complainant states that the Chief and
DC knew he was ranked second on the 2004 Register but the Chief could
not recall even discussing complainant during the selection process.
Complainant stated that in May 2005, a named candidate "ranked number
seven on the promotion list, was promoted.  The Agency witnesses could
provide no specific reason for [selectees] promotion, for the selection of
[selectee] over [Complainant], or for the no selection of [Complainant]
for this position."



Complainant argues that the agency "has held up its promotional ranking
system as the method it uses to make promotion decisions 'unless there was
an overwhelming reason' to the contrary.  [Complainant] was the highest
ranked candidate for six different promotional opportunities in 2005,
and he was bypassed on every occasion.  In the face of his contradiction,
the Agency witnesses stood mute, unable to provide any specific reason for
the non-promotion of [Complainant] or the promotion of other candidates."
Complainant argues that it was clear that the agency did not want to
promote him to the position of Captain because of his association with a
disabled person.  Specifically, complainant argues that during the 2006
promotional process, the agency "was successful in keeping [Complainant]
off of the Promotional Certificates altogether by keeping his ranking
on the Promotion Register low enough that he would not be eligible for
promotion."



Complainant acknowledges that he is not, in fact, disabled, but continues
to pursue his claim that he was discriminated against because he was
regarded as disabled.  Specifically, complainant stated that he was
perceived as disabled when he was denied the promotions.  Complainant
states that when he initially filed his complaint, he believed he
was disabled and "that the Agency discriminated against him based
on his disability.  However, as his injuries healed, [Complainant]
came to realize that he is not permanently disabled as defined by
the Rehabilitation Act.  Nonetheless, [Complainant] believes that the
Agency perceived him as disabled."  Complainant argues that he was able
to perform the duties of the position of the Captain and that the agency
"has admitted as much."  Complainant argues that his first line supervisor
told him that his injuries made him the "laughing stock" of the agency
and would prevent him from being promoted.

 



ANALYSIS AND FINDINGS



As this is an appeal from an agency's decision issued without a
hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is
subject to de novo review by the Commission.  29 C.F.R. § 1614.405(a).
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.  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 does not sit as a
fact finder.  Id.  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.  A disputed issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party.  Caltex v. Carteret, 477 U.S. 317,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988).  A fact is "material" if it has the potential
to affect the outcome of a case.  If a case can only be resolved by
weighing conflicting evidence, a hearing is required.  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.  See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).



The courts have been clear that summary judgment is not to be used as
a "trial by affidavit."  Redmond v. Warier, 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).  "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 Peavey v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chorister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995).  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, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. §
1614.109(d) and (e).



After careful review of the record and consideration of the arguments
presented on appeal, the Commission finds that summary judgment was not
appropriate in this case as genuine issues of material fact exist that
can only be resolved through a hearing.  There are significant unresolved
issues concerning the May 2005 selection.  The record is clear that past
selections were usually made based on the ranking of the candidates, but
complainant, ranked 2nd, was passed over for a selectee ranked 7th.  The
record evidence does not resolve why this occurred.  In his deposition,
the Chief stated that he chose the selectee for the May 2005 Captain
position because he had more experience in the Uniformed Division than
complainant and that the Deputy Chiefs recommended him for selection,
without elaboration.  Complainant asserts he was better qualified as
evidenced by his higher ranking.  The Chief, however, stated that he did
not recall even discussing complainant during the selection process.
The record evidence of prior selections seems to belie the Chief and
DC's statements that ranking was not important in making selections.
It appears that this debate can only be resolved through credibility
determinations made during a hearing. 



In addition, the Commission determines that the record was inadequately
developed.  We find that even though the agency investigated complainant's
claims, the record is bare concerning the reasons why complainant's
score was lowered in 2005 in all three phases of the evaluation process
than in 2004.  We further noted that the Chief stated that there was
a significant change in complainant's score before the Oral Interview
Panel, but there were no supporting statements or affidavits from any
of the Oral Interview panelists and Deputy Chiefs.  Finally, we note
that although the record contains the DC and Chief's affidavits and
depositions, there are no contemporaneous notes made by any of the
decision-makers involved in the selection process.      



Therefore, we conclude that the AJ's finding of no discrimination could
not be reached except by resolving significant conflicting evidence,
an action that is not appropriate in a grant of summary judgment.
In light of the disputed issues of material fact on the instant record,
issuance of a decision without a hearing was not warranted under 29
C.F.R. § 1614.109(g).



The Commission VACATES the agency's final action and REMANDS the matter
to the agency for further processing in accordance with the ORDER below.



ORDER



The agency shall submit to the Hearings Unit of the EEOC's Washington
Field Office the request for a hearing, as well as the complaint file,
within thirty (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 of the Washington Field Office.  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 (K1208)



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 (M1208)



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, 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 (R0408)



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 (Z1008)



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



June 11, 2010

__________________

Date



1 The agency dismissing claims that complainant was discriminated against
when he was not selected for a number of earlier selections for Captain
during the 2005 promotion cycle (selections made on January 5, 2005 -
three promotions, March 10, 2005 - two promotions, and April 13, 2005)
on the grounds of untimely EEO Counselor contact. 



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0120082599











U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013









2

0120082599