By Michael Rhoads, February 15, 2022

Let’s say your agency receives an EEO complaint and follows the EEO complaint process.  You’ve investigated the allegations and issued the complainant the report of investigation. The complainant requests an EEOC hearing. At this point, is it possible to ask the Administrative Judge (AJ) to issue summary judgment? According to 29 CFR 1614.109(g)(2), “After considering the submissions, the administrative judge may order that discovery be permitted on the fact or facts involved, limit the hearing to the issues remaining in dispute, issue a decision without a hearing or make such other ruling as is appropriate.”

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact.  29 C.F.R. § 1614.109(g). This means both parties (complainant and agency) agree to the material facts of the case.  Each side’s interpretation of those facts might be different, but there’s no hidden meaning or conspiracy theories.

Summary Judgment for the Agency

In Phoebe O. v. Dep’t of the Army, EEOC Appeal No. 2020000674 (Apr. 5, 2021), the complainant requested a reasonable accommodation several times.  After the second request, she was retroactively placed on AWOL. After the third request, she was issued a memorandum to report to duty. Each time, the agency addressed its denial of her RA request. Part of the complainant’s request for RA was to be transferred to an open position. However, the agency decided to competitively fill the position instead.

One of the points we make in our courses at FELTG is this: The agency is performing its due diligence as long as it’s participating in the interactive process to find a reasonable accommodation for an employee’s disability.  An employee can request a specific accommodation, but the agency does not have to grant it in the way the employee requests if another effective accommodation is available, or if the employee does not provide information on her medical restrictions.

In this instance, the agency denied the request to transfer to an open position because the complainant did not provide medical documentation to support the necessity for the transfer.

As no material facts were in dispute, the EEOC affirmed the AJ’s decision granting summary judgment to the agency.

Summary Judgment Reversed

Some cases, however, are not as cut and dried. Even though an AJ might issue a decision without a hearing, the Commission sometimes sees things differently. In Jennifer K. v. Dep’t of the Navy, EEOC Appeal No. 2020001035 (May 20, 2021), the EEOC reversed the agency’s final decision after finding the AJ improperly issued a decision without a hearing.

This case dealt with some confusion about discovery. But first, some background. The complainant worked as a civil service mariner for the Navy’s Military Sealift Command in San Diego, Calif. When she became pregnant, she notified the agency’s Placement Specialist and asked what other work assignment options were available because the current assignment involved sailing out to sea for an extended period of time. Soon after, the complainant was declared Not Fit For Duty (NFFD) by the Medical Department. The agency had trouble placing her in a vacant position because she was not considered disabled.

Between May-August 2014, the complainant used leave and leave without pay while the agency searched for suitable work. The agency offered training in Seattle, Wash., after the complainant had moved to Eugene, Ore., but the complainant declined the offer because she had already received the training being offered.   Over this period, the complainant also had trouble contacting the captain of her ship to help her with her pregnancy accommodation request. Eventually an LR employee responded that they were unable to accommodate her, but would continue to seek other positions for which she might qualify.

In November 2014, she filed a complaint alleging she had been discriminated against on the basis of sex (female, pregnancy). Because of her removal after management learned of her pregnancy, she was forced to use leave and accumulated insurance debt.  Complications arose when the complainant’s attorney filed in the EEOC’s Los Angeles office and requested the case be transferred from the EEOC’s Charlotte office to LA since her last duty station was San Diego, Calif.  The agency did not acquiesce, and the case remained in the Charlotte office. In July 2016, the AJ assigned to the case in Charlotte issued an Order of Sanction and Dismissing Hearing Request after the agency requested a dismissal of the hearing request. The AJ remanded the complaint to the agency for a final decision.  In a separate case associated with this one, the complainant appealed the AJ’s dismissal. In that case, the Commission found in favor of the complainant and remanded the complainant back to the Charlotte office.

The same AJ in Charlotte was assigned to the remanded case.

And there’s more. In January 2018, the AJ ordered discovery must be initiated on or before March 5, 2018, at 5 PM. On that day, the complainant’s attorney issued interrogatories to the agency, and the agency issued interrogatories to the complainant.  However, there was confusion about when discovery was to be served. At 4:56 PM ET, the complainant’s attorney emailed the AJ for clarification. At 5:51 PM ET, the AJ responded all discovery was due at 5 PM ET. The complaint’s attorney then requested an extension, but the AJ did not reply. The complainant’s attorney then quickly served document requests, admission requests, and deposition notices to the agency on March 5, 2018, at 7:50 PM EST, which is 4:50 PM PST. However, the AJ later emailed the attorney stating the proper time zone to submit requests was 5 PM EST and found the document requests untimely.

The AJ issued summary judgment in the agency’s favor, finding the complainant did not demonstrate the agency was more likely than not motivated by some discriminatory animus. The complainant appealed the decision.

On appeal, the Commission found the AJ erroneously granted summary judgment, “After a careful review of the record, we find that the AJ’s issuance of a decision without a hearing was not appropriate as the complainant was not fully afforded the opportunity to engage in discovery, the record has not been adequately developed, and there are genuine issues of material fact in dispute.  We further find that the AJ erred as a matter of law.”

If you want to know how to make sure your summary judgment isn’t reversed, join Katherine Atkinson for Winning EEO Cases Through Summary Judgment on Thursday, February 24, 2022 from 1:00-2:00 ET.

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