01a00528
06-01-2000
Bryce Michael Hall, Complainant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Bryce Michael Hall, )
Complainant, )
) Appeal No. 01A00528
v. ) Agency No. I-95-6674
) Hearing No. 170-98-8343X
Janet Reno, )
Attorney General, )
Department of Justice )
(Immigration and Naturalization Service), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges
he was discriminated against on the basis of age (d.o.b. 11/20/49) when
he was not selected for the position of Senior Immigration Inspector,
listed under Vacancy Announcement No. ER-OC-94-68 (PCI). For the
following reasons, we REVERSE and REMAND the agency's final decision.
The record reveals that during the relevant time, Complainant was
employed as a Supervisory Immigration Inspector, GS-12, at the agency's
Detroit Metropolitan Airport facility. Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on May 16, 1995. At the conclusion of the
investigation, complainant was provided a copy of the investigative
file and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing finding no discrimination.
The AJ concluded that complainant failed to state a claim based on the
statutory exception to the provisions of the ADEA created by 5 U.S.C. �
3307(d) which permits agencies to set minimum and maximum age limits
for �original appointments� to federal law enforcement positions.<2>
The AJ supported her determination with the EEOC decision in Campbell
v. Department of Justice, EEOC. No. 05960550 (April 17, 1997), which
held that a challenge to the application of the age requirements for a
law enforcement officer position fails to state a claim. The AJ also
found that assuming complainant stated a claim under the ADEA, no prima
facie case of age discrimination was established because the record was
devoid of any evidence showing that any applicants significantly younger
than complainant were granted a waiver to the statutorily permitted
age restriction for the position. Moreover, the AJ found the agency's
explanation that the decision that complainant was not qualified
for the position was likely due to an �oversight� was a legitimate,
nondiscriminatory reasons for the denial of complainant's application.
In reaching this conclusion, the AJ noted that an �oversight� in the
review of a complainant's job application does not equate to intentional
age discrimination.
In its final decision, the agency disagreed with the AJ's conclusion that
complainant failed to state a claim, but found that the record supported
the AJ's alternative finding that complainant was not subjected to age
discrimination.
Complainant raises similar arguments on appeal to those he raised before
the agency and the AJ. Specifically, that the age restriction for the
position at issue did not apply to him because he previously held a
law enforcement position; therefore, he was not seeking an �original
appointment� as referenced in 5 U.S.C. � 3307(d). Complainant also
argues that he applied for over 200 federal law enforcement positions
between 1985 and 1995 and only received one reply stating that he was not
selected. Complainant believes that the District Administrative Officer
(DAO) (female, age 36) simply looked at his age on the application
and a made determination that he was not qualified, and that this is
�indicative of the way the entire INS does business when reviewing covered
law enforcement positions.� In conclusion, the complainant finds it
contradictory that the same DAO who admitted to the EEO Counselor that
complainant was exempt from the age restriction requirement could not
remember if complainant's application indicated that he was employed in
a previously covered position seeing as complainant could not be exempt
unless he was employed in a previously covered position. The agency
stands on the record and requests that we affirm its final decision
implementing the AJ's ultimate finding of no discrimination.
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 United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
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).
After a careful review of the record, we find that the AJ erred when
she concluded that complainant failed to state a claim. In making this
finding, the AJ failed to recognize that complainant did not allege that
the general application of the maximum age requirement for law enforcement
officers violated the ADEA. Rather, complainant alleged that he was
denied consideration for the position even though he was eligible for
the exemption to the maximum age requirement due to his prior service
in covered law enforcement. Therefore, because complainant challenged
the actual processing and denial of application, and not the general
applicability of the maximum age requirement, we find that complainant
did in fact state a claim of age discrimination.
We also find that the AJ erred when she concluded that there was
no genuine issue of material fact in this case. The AJ relied on the
representations of management officials as provided in their affidavits
which, as argued by complainant, contradict themselves. We find that
genuine issues of material fact exist specifically with regard to
the DAO's assertion that she did not remember handling complainant's
application for the position, after she told the EEO counselor that
she reviewed the application but did not notice complainant's prior
law enforcement experience. Moreover, we point out that the Report of
Investigation (ROI) summary of the findings states that the DAO �confirmed
that the main reason that [complainant] did not get the Senior Inspector
position was because of his age.�
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensur[e] that the parties have a
fair and reasonable opportunity to explain and supplement the record
and to examine and cross-examine witnesses.� See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110)
6-1 (November 9, 1999); see also 64 Fed. Reg 37,644, 37,657 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �� 1614.109(c) and (d)).
�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 Peavley v. United States Postal Service,
EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States
Postal Service, EEOC Request No. 05940578 (April 23, 1995). In summary,
there are simply too many unresolved issues which require an assessment
as to the credibility of the various management officials, co-workers,
and complainant, himself. Therefore, judgment as a matter of law for
the agency should not have been granted as to issue (1).
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 complaint is remanded to the Hearings Unit of the EEOC's Philadelphia
District field office for scheduling of a hearing in an expeditious
manner. 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 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 (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
June 1, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
MEMORANDUM
TO: Hearings Unit, Philadelphia District /Field Office
FROM: Carlton M. Hadden, Acting Director
DATE: 5/16/00
RE: Bryce Michael Hall v. Department of Justice, Immigration and
Naturalization Service, EEOC Appeal No. 01A00528
Enclosed is a DECISION requiring the above referenced complaint be
assigned to an Administrative Judge. We request that the Administrative
Judge notify the Compliance Division at the Office of Federal Operations
after a decision has been issued. If there are any questions concerning
the further processing of this complaint, please contact Robert Barnhart,
Acting Director of Compliance and Control, at (202) 663-4525.
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In 1991, in accordance with Public Law 100-238, the U.S. Attorney General
determined and fixed the date preceding an individual's 37th birthday
as the maximum age limit for an �original appointment� into a �primary
law enforcement officer position� within the Department of Justice.