In Currier v. U.S. Postal Service, 79 M.S.P.R. 177, 182 (1998), the Merit System Protection Board (“Board”) held that when an appellant who claims discrimination has requested an evidentiary hearing, the administrative judge (“AJ”) may not find against the appellant on the discrimination claim without holding a hearing. In a recent case, Redd v. U.S. Postal Service, 2006 MSPB 32 (2006), Docket No. PH-0752-05-0162-I-1, the Board overruled Currier, and held that “when there is no genuine dispute of material fact regarding discrimination, an evidentiary hearing on discrimination need not be conducted.” Accordingly, an appellant no longer has an unconditional right to an evidentiary hearing on discrimination.

In Redd, the agency removed the employee for extended absence without leave (AWOL) and “failure to be regular in attendance.” As part of his appeal to the Board, the employee raised the affirmative defense of race and disability discrimination. As evidence of the race discrimination, the employee offered a witness who would testify to the agency’s willingness to offer a “last chance agreement,” to a Caucasian employee charged with similar offenses. The appellant claims that the agency committed disparate treatment race discrimination by removing him instead of offering him a last chance agreement. An appellant may attempt to show disparate treatment with evidence that the agency is willing to negotiate less severe discipline for members of some groups than members of other groups who have committed similar misconduct and are otherwise similarly situated. Upon the agency’s objection, the administrative judge refused to allow the witness to testify. The AJ proceeded to sustain the removal and made no findings on the discrimination charges.

The employee appealed to the Board, alleging that the AJ was wrong in refusing to allow the witness’ testimony, thereby preventing the employee from proving his claim of race discrimination at a hearing. The Board interpreted the appellant’s argument to be that the AJ’s disallowance of his sole witness in support of his race discrimination claim amounted to a denial of his right to attempt to prove discrimination at a hearing in violation of Currier.

The Board overruled Currier, noting that Currier did not take into account that appellants do not always have relevant, admissible evidence on a disputed fact to present at a hearing. In this case, the Board noted that the appellant has not made out a prima face case of discrimination, as he has not proffered evidence that, if credited, would show that he and the other employee were “similarly situated” and thus proper comparators. Because of this, the Board reasoned, the appellant’s claim would fail, and an evidentiary hearing would serve no purpose. Moreover, the Board noted, the Currier decision did not recognize that an Equal Employment Opportunity Commission (EEOC) AJ is expressly authorized to render a decision without an evidentiary hearing when the “material facts” are not “in genuine dispute.” The Currier decision simply did not explain why the Board should be prohibited from disposing of a discrimination claim without an evidentiary hearing when the EEOC and federal courts are permitted to do so.

Accordingly, the Board held that when there is no genuine dispute of material fact regarding discrimination, an evidentiary hearing on discrimination need not be conducted. A factual dispute is “material” if, in light of the governing law, its resolution could affect the outcome. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is sufficient evidence favoring the party seeking an evidentiary hearing for the AJ to rule in favor of that party should that party’s evidence be credited. Id. at 249. The Board did remand the case to the AJ for additional proceedings and to allow the employee sufficient discovery to find evidence, if any, to support his discrimination claim.

This case has added a layer to Board cases that did not exist before. It is likely that in cases where an affirmative defense of discrimination is raised, agencies will now file motions for summary judgment that will have to be responded to, and defeated, before an employee can present evidence of his or her affirmative defense of discrimination at the hearing. However, it is important to note that the Board cautioned its AJs, stating that the Board expected AJs to be extremely cautious in applying these standards and exercising their new authority to resolve discrimination claims without evidentiary hearings. In fact, the Board noted, since an AJ will be holding an evidentiary hearing on the merits anyway, and in the interest of having a complete record should either party seek review, it will generally be preferable for the AJ to allow the appellant to present whatever evidence he has on discrimination.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.