U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allan F.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120132640 Hearing No. 510-2012-00386X Agency No. 5R1S11009F13 DECISION On July 3, 2013, Complainant filed a timely appeal from the Agency's June 3, 2013 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts this appeal it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant was a selected applicant for the position of Physical Science Technician, IA-1311-02 at the Agency's Patrick Air Force Base in Cocoa Beach, Florida. This is equivalent to the GS-07/08/09/10 level. Report of Investigation (ROI), at 349.2 Complainant filed a formal EEO complaint on October 13, 2011, alleging that the Agency discriminated against him based on his national origin (American with Arab ancestry) and age (47) when on July 1, 2011, he was informed his offer of employment in connection with vacancy announcement AFPC-306774-732459-KAA for the above position was rescinded. In December 2009, the Agency advertised three vacancies for the above position located in Cocoa Beach, Florida. On or about March 15 2010, the Agency selected Complainant, and Comparisons 1 (age 34, national origin United States) and 2 (age 34, national origin United States). Complainant and Comparison 1 were selected for vacancies in the Air Force Technical Application Center (AFTAC), Material Support Branch, and Comparison 2 was selected for another unit within AFTAC. Comparison 1 started working on September 13, 2010, and Comparison 2 on June 7, 2010. By email on March 15, 2010, the Agency made a "tentative offer" to Complainant, with a tentative start date of May 24, 2010. The Agency wrote that the offer was contingent on the successful completion of listed employment documentation and requirements, and if he did not meet them the offer would be withdrawn. This included requirements related to the security clearance, and completing Civilian Virtual In-Processing (cVIP) forms. The record reflects that Permanent Change of Station (PCS) forms, which are used in whole or part to obtain reimbursement for moving expenses, were accessible using cVIP. ROI, at 58. A Top Secret clearance was required. In the offer email, the Agency indicated that if Complainant did not have a clearance, the Agency could initiate a "security clearance waiver." ROI, 316 - 317. Complainant accepted the offer on March 16, 2010. Complainant stated that thereafter, on two specified dates in March 2010, he separately inquired with an identified Agency AFTAC Civilian Resources Specialist and Human Resources Specialist, both of whom responded he would only be granted an interim clearance allowing him to start on May 24, 2010, if he already lived approximately 100 miles from the base, and his PCS would only be approved after his clearance was adjudicated. Complainant wrote that he asked the above individuals if he could start sooner if he paid his own moving expenses and moved nearby the base, and was advised yes and told he would not be reimbursed for any of his expenses after his clearance was obtained, and would be let go if it was not favorably adjudicated. ROI, at 526. In an affidavit submitted with his opposition to the Agency's motion for summary judgment, Complainant added that the above two individuals advised him that the position was guaranteed to him so long as his clearance was favorably adjudicated. According to Complainant, when he accepted the position offer the AFTAC Civilian Resources Specialist advised him the clearance process could take two years, and on several occasions while it was being processed assured him the job was definitely his so long as his clearance was favorably adjudicated. ROI, at 490. She initially estimated the clearance process would take four to six months. At another point, Complainant stated that the offer was presented to him by the above individuals as a firm offer so long as all pre-employment requirements were met, including but not limited to his security clearance. ROI, at 518. In September 2010, Complainant moved from San Diego, California to Jacksonville, Florida. According to Complainant, he did this to get acclimated to area near where he would be working. In October 2010, he took a temporary job at Bank of America. On May 25, 2011, the Agency's Human Resources unit notified Complainant that "AFCAF" favorably adjudicated his security clearance the day before. In obtaining this favorable adjudication, Complainant was asked to surrender his Irish passport and have it destroyed, which occurred. In the May 25, 2011 email, Complainant was advised he would receive instructions for completing cVIP and PCS forms, and that while he did this over a year before, he must complete new forms since his address changed. Further, the record reflects that in March 2010, the Agency provided Complainant an incorrect PCS related form, and he was asked to complete a different one. Complainant wrote that over the next three weeks, he sold his home, gave notice on his temporary housing situation in Jacksonville, Florida, gave notice to his temporary job, and put a deposit on a rental in Coca Beach, Florida. Complainant repeatedly attempted to access cVIP, but was unable to login. On June 2, 2011, the Civilian Resources Specialist sent Complainant an email advising that since he was unable to access cVIP, he could submit hardcopies of his PCS application forms, which he did the next day. ROI, at 29, 81. On June 6, 2011, the Air Force Personnel Center, PCS Orders Processing Unit, emailed the AFTAC Civilian Resources Specialist advising that after reviewing cVIP, the reviewer noticed that the Employee's Personnel Information/DD Form 1618 was incomplete, and hence the PCS order could not be processed. ROI, at 435. While the record does not address this matter, given its timing this may have occurred due to a delay in the Agency uploading Complainant's faxed forms to cVIP. The Chief, Sciences Support Division, is supervised by the Director, Materials Technology Directorate. AFTAC's Material Support Branch is within the Sciences Support Division, which in turn is within the Materials Technology Directorate. By June 6, 2011, the Chief recommended to the Director that the Material Support Branch be restructured because the Logistics and Systems Directorate of AFTAC did not wish to have Air Force Specialty Code military enlisted people performing computer functions in the Materials Technology Directorate. The Chief stated that because of this the Material Support Branch needed more educated and experienced civilian counterparts - upgrading the position Complainant had been offered (meaning rescinding his offer). The Chief stated that about a year passed since Complainant was selected, and he had not yet accepted a final offer. He explained that since no binding acceptance of the final offer was received, the changing needs of the office were taken into account. The Director of the Materials Technology Directorate stated that after the Chief made his request to him, he made the decision to realign the duties of the position offered to Complainant, which resulted in rescinding his job offer. The Director explained that it was decided to incorporate the enlisted billets into the job, requiring a material change in the position description and requirements. This decision was finalized on or about June 6, 2011. The Director wrote that the fact that a candidate had been offered the obsolete civilian position was considered, but noted "an agreement had not been reached as the candidate had not yet accepted the tentative offer." ROI, at 528. The Director consulted with the AFTAC Director of Staff who confirmed that rescinding the offer was a valid course of action governed by appropriate authority. The Director of Staff stated he confirmed this through AFTAC Human Resources and headquarters -- Air Force Surveillance and Reconnaissance Agency, which is located in Texas, and of which AFTAC is a part. ROI, at 523. On June 6, 2011, the Chief, Sciences Support Division, emailed the AFTAC Civilian Resources Specialist asking that Complainant's offer be withdrawn, and explaining the reason therefore. ROI, at 437 - 438. After procedural processing, Complainant's offer was withdrawn, and he was notified of this by email on July 1, 2011. In July 2012, the Agency announced the restructured position of Physical Scientist, GS-12. ROI, at 560. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Following the Agency's motion for summary judgment, Complainant's opposition thereto, and the Agency's reply, the AJ issued a decision without a hearing finding no discrimination. The AJ found that Complainant failed to establish a prima facie case of national origin and age discrimination. He reasoned that the only possible comparators for Complainant were Comparisons 1 and 2, in that they all received tentative job offers under the same vacancy announcement. The AJ found Complainant was not similarly situated to Comparisons 1 and 2 because they were already employed when the decision was made to upgrade Complainant's slot to incorporate the work formerly done by military enlisted personnel into the position to compensate for the reduction of filled enlisted billets. The AJ found that there was no evidence of another reason to modify the position. In its final order, the Agency fully implemented the AJ's decision. STANDARD OF REVIEW 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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"). ANALYSIS AND FINDINGS We must 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. 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 AJ 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. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). After a careful review of the record, we find that the AJ erred when he concluded that there was no genuine issue of material fact in this case. In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The AJ relied on comparative evidence in finding no prima facie case of discrimination. But a prima facie case of discrimination - an inference - can be established without comparative evidence. Here, Complainant was offered the position of Physical Science Technician, IA-1311-02, subject to his meeting pre-employment requirements. According to Complainant, he was repeatedly assured by the AFTAC Civilian Resources Specialist that once his security clearance was favorably adjudicated, the position was his, and she understood it could take as much as two years. After receiving the offer, Complainant changed his position by moving from San Diego to Jacksonville, Florida. According to Complainant, after his clearance was favorably adjudicated, he gave notice to his temporary housing in Jacksonville, his job, sold his home, and put a deposit on rental housing in Cocoa Beach, Florida.3 In March 2010, the Director, Materials Technology Directorate recommended that Complainant be selected, which suggests he may have reviewed his resume. In his resume, which contained his education, work history and foreign sounding last name, Complainant indicated that since June 2004, his career was in information technology, serving as a Desktop Support Analyst, Desktop Analyst, PC/LAN Analyst, and Technical Support Specialist, with salaries as high as $30 an hour. According to the Agency, the selecting official was the Chief, Data & Systems Management Office. ROI, at 353. The above Director was his second line supervisor. Withdrawing Complainant's offer of employment was harsh and an unusual business practice, especially after he had formally accepted the Agency's contingent offer and relied thereon in changing his position - moving and so forth. Shortly prior to the Agency's withdrawal, Complainant underwent a lengthy clearance process requiring him to surrender and have destroyed his Irish passport. According to Complainant, by June 3, 2011, he submitted all the requested pre-employment paperwork to the Agency. At this point, the Agency had not completed processing it. While the Director, Materials Technology Directorate stated that when the decision was made to rescind Complainant's offer, it was noted he had not yet accepted the tentative offer, the record shows that not only had he accepted the contingent offer long before, he cooperated with the Agency in obtaining a favorable adjudication of his security clearance and completing pre-employment forms, further demonstrating his acceptance of the Agency's offer. Given this, there is a question of whether, as a practical matter, the offer had become finalized by the time it was withdrawn. The record strongly suggests that unlike two other cited offers that were withdrawn for reasons connected to a candidate being found unqualified, here the Agency was free to bring Complainant on board.4 Further, given Complainant's background in information technology, a question arises on whether the Agency could have had its computer technical needs met without having to go through harsh and usual process of withdrawing Complainant's offer and upgrading his position after he was so far along in the process, and changed his position. The Agency argued that the Chief, Sciences Support Division and Director, Materials Technology Directorate, who made the decision to rescind Complainant's offer, were unaware of Complainant's age and national origin. While both indicated they were unaware when the decision was made, their denials were not examined - for example, while they may not have had confirmation of these protected bases, they may have strongly suspected such. Given the harshness and unusual business practice of withdrawing an offer to Complainant after he was so far along in the pre-employment process and changed his position based on this, allegedly being repeatedly assured the position was his once his security clearance was favorably adjudicated (which it was), that the Agency was free to bring him on board, and his skills and experience may have met the Agency's need for computer skills in any case, we find that Complainant has created a genuine issue of material fact on whether the Agency was actually motivated by discrimination when it rescinded his job offer. We note that 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 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). "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." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various Agency officials and Complainant. Therefore, judgment as a matter of law for the Agency should not have been granted. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission reverses the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit 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 29 C.F.R. § 1614.110. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ________________________ Carlton Carlton M. Hadden, Director Office of Federal Operations October 8, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 ROI page references refer to the numbers at the bottom right of each page. 3 The record does not reflect if Complainant notified the Agency of his actions after he learned his clearance was favorably adjudicated. The record is incomplete on this point. 4 According to the AFTAC Director of Staff, in January 2011, a tentative offer to another selectee in an unidentified position was withdrawn to allow management time to re-evaluate the position. The record contains no information on the circumstances of the withdrawal beyond what is written here. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132640 10 0120132640