0120046045
12-28-2007
Gerald R. Chambers, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Gerald R. Chambers,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200460451
Hearing No. 160A38562X
Agency No. 1981025R
DECISION
On August 25, 2004, complainant filed an appeal from the agency's July
23, 2004, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES
and REMANDS the agency's final order.
The record reveals that during the relevant time, complainant was employed
as an Air Traffic Control Specialist, GS-9, at the Washington Air Route
Traffic Control Center (ARTCC) in Leesburg, Virginia. Complainant sought
EEO counseling and subsequently filed a formal complaint on November
20, 1997. He alleged that he was discriminated against on the basis of
his age (D.O.B. 1/1/47) when he was not selected for a position as Air
Traffic Control Specialist, GS-2152-12/13/14 under Vacancy Announcement
AEA-AAT-96-074-11006 (hereinafter Announcement AEA). Complainant also
alleged that the agency's policy of requiring former Professional Air
Traffic Control members (PATCO) to apply only under recruitment Notice
93-01 has an adverse impact based on the age of the applicant.
At the conclusion of the investigation, the agency provided complainant
with 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. In so finding, the AJ considered
complainant's evidence of an internal memorandum which suggested that the
agency considered the age of former PATCO members in refusing to hire
them under Announcement AEA. The FAA Public Affairs office issued the
memorandum which suggested that in re-hiring the former PATCO members,
age may be an issue in terms of their ability to do the job. For that
reason, the agency stated that it "plans to hire these controllers just
above the normal entry level (at the GS-9 level)." The AJ concluded that
even assuming this to be direct evidence, the selecting official would
have made the same decision even absent discrimination because complainant
was not on the list of eligible candidates under Announcement AEA.
The AJ further concluded that there was no dispute that the agency had a
policy in place to recruit former PATCO members from Recruitment Notice
93-01 and that the agency had legitimate reasons for the centralized
recruitment. Specifically, she found that the notice was issued as
a one-time "amnesty" opportunity for ex-PATCO members because (1) the
agency did not want to hire them at their former grades after having
been out of the career so long; (2) the agency was concerned about the
perception of the flying public that the returning controllers were
not fully qualified for their jobs; (3) in the interest of equity, the
agency decided to issue a single recruitment notice limited to ex-PATCO
controllers and to centralize the process; and (4) there was some concern
that if the individual regions were left to handle the recruitment,
the ex-PATCO controllers would have difficulty competing against other
applicants with more current experience either with the agency or with
the Department of Defense.
The AJ rejected complainant's argument that the agency's policy resulted
in a disparate impact on older applicants such as he, because the agency
demonstrated that its practice was job related and consistent with
business necessity. The AJ concluded that complainant, an ex-PATCO
controller who had engaged in an illegal strike, had "unclean hands"
and could not now challenge the agency's practice as discriminatory.
In sum, the AJ found that the agency's non-selection of complainant was
not discriminatory and that its practice of considering applications
of ex-PATCO members under a centralized hiring process did not have
a disparate impact on complainant because of age. The agency's final
action fully implemented the AJ's decision.
On appeal, complainant contends, among other things, that there was
ample evidence of age discrimination. He contends that the AJ erred in
issuing summary judgment and that the AJ did not draw all inferences in
the light most favorable to him, the party opposing summary judgment.
Complainant cited to the Commission's decision in a case involving the
Minnesota ARTCC arguing that the Commission did not apply the doctrine
of unclean hands in that case and it should not be applied in this case.
See Anderson v. Department of Transportation, EEOC Appeal No. 01A10979
(June 19, 2002).2 The agency stands on the record and requests that we
affirm its final action implementing the AJ's decision.
ANALYSIS AND FINDINGS
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, summary judgment
is not appropriate. 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. Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
When an AJ issues a summary judgment decision, his/her factual and legal
determinations are subject to a de novo standard of review. 29 C.F.R. �
1614.405(a); see EEOC Management Directive 110 (MD-110), at 9-16.
At the outset, we must address the AJ's determination that, due to the
doctrine of "unclean hands," complainant could not challenge the agency's
practice as discriminatory. Normally, for a defendant or responding
party to successfully raise the doctrine of "unclean hands," it must
show that the plaintiff engaged in wrongdoing directly related to the
claim at issue and second, even if directly related, the plaintiff's
wrongdoing would not bar relief unless the defendant was injured by the
conduct. See Calloway v. Partners National Health Plans, 986 F.2d 446
(11th Cir. 1993); Mitchell Brothers Film Grp. v. Cinema Adult Theatre,
604 F.2d 852 (5th Cir. 1979); cert den. 445 U.S. 917 (1980).
The unclean hands doctrine does not mean that courts must always permit
a defendant wrongdoer to retain profits of the wrongdoing merely because
the complaining party himself is guilty of transgressing the law and
is not applied by way of punishment for the unclean litigant. McKennon
v. Nashville Banner Pub. Co. 513 U.S. 352 (1995) (ADEA claim involving
after-acquired evidence of plaintiff's wrongdoing affects the remedy but
not the employer's liability); see also EEOC v. Recruit U.S.A. Inc. 939
F.2d 746 (9th Cir. 1991). The Supreme Court has held that the unclean
hands doctrine does not apply where Congress authorizes broad equitable
relief to serve an important national policy. McKennon supra.
Here, we conclude that the doctrine does not apply in this case where the
agency has not demonstrated that it was injured by complainant's conduct.
That is, although complainant admits he engaged in an illegal strike in
the past, the current action concerns his application for employment
pursuant to a presidential repeal of a ban on the re-employment of
those air traffic controllers. Thus, complainant's application was
legal at the time and did not result in any injury to the agency.
The agency has not demonstrated that it was injured as a result of
any action on the part of complainant; therefore, we conclude that the
AJ improperly denied complainant relief on those grounds. Moreover,
based on the Supreme Court's holding in McKennon, the policy put forth
by the discrimination laws here at issue would take precedence even if
there was an adequate showing that complainant had "unclean hands."
Regarding the AJ's granting of summary judgment, we find that the AJ
erred in concluding that there were no genuine issues of material facts
in this case. Because complainant's evidence must be believed at the
summary judgment stage and all justifiable inferences drawn in his
favor, we find that the record does indicate that age discrimination
may have played a role here. In this regard, we note that the agency
had a policy in which ex-PATCO applicants were required to only apply
under recruitment Notice 93-01, regardless of their previous experience.
The average age of the five selectees under Announcement AEA was 33 years
which was substantially younger than complainant, who was age 50 at the
time.
Notwithstanding the AJ's finding that there was no dispute that the
agency had legitimate reasons for its centralized recruitment procedure,
the record contains evidence that squarely contradicts ARTCC's contention
that former agency controllers could only be hired at just above entry
level. For example, a memorandum from the agency's personnel office
states that the agency would permit former PATCO, FAA Controllers to
apply for vacancies and to be hired at their current grade levels if
they were employed by the government. Order 3300.30 contained in the
record states that former controllers, such as complainant, could have
applied for employment under regionally issued vacancy announcements
which were open to transfer and reinstatement eligibles. Moreover, in
the letter addressed to complainant citing to its pay setting policy,
the agency's personnel office informed him that former FAA controllers
may be paid at the "rate of pay in effect immediately prior to the last
rate held." (Exhibit F2A). The evidence of record also contradicts the
AJ's determination that agency was concerned that complainant and others
like him lacked current air traffic control experience. In this regard,
the record indicates that complainant was working as an air traffic
controller with the Department of Defense at the time of his application,
thus satisfying the agency's stated desire to hire those employees who
could easily assimilate into its workforce. This evidence disputes
the agency's concern about complainant's current skills and calls into
question the credibility of the agency's explanation for restricting
him to only apply under recruitment notice 93-01.
We also find other evidence that, when viewed in a light most favorable
to complainant, indicates that complainant's age played a role in
the agency's selection decision. In this regard, we again note the
agency's internal memorandum. The memorandum revealed that, when
discussing the issue of age, these questions, among others, were posed,
"isn't it true that someone's ability to control [air] traffic declines
with age? . . . Can these former controllers do the job?, What about
the fact that they haven't controlled aircraft for over a decade?"
(See Complainant's Response to Notice of Intent to Issue Decision Without
A Hearing). Further evidence that age was a factor was set forth by
the statement of the former Facilities Chief and selecting official
that there was a discussion regarding whether ex-PATCO controllers
"would stay very long because they were nearing retirement."
The hearing process is intended to be an extension of the investigative
process, and is 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 (November 9 1999); 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."
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). After a
careful review of the record, including complainant's arguments on appeal,
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.3
ORDER
The agency shall submit to the Hearings Unit of the Richmond Field Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. 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 (K0501)
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 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 (M0701)
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, 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___12/28/07_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 In Anderson, the Commission found that the agency's selection process
discriminated against the complainant on the basis of his age.
3 Because of our decision above, we do not find that it is necessary
to address the AJ's determination regarding whether there was direct
evidence of discrimination, whether there was evidence of a mixed motive
and whether the agency's hiring practice resulted in a disparate impact
on older air traffic controllers. These issues will be addressed by
the AJ assigned to conduct the administrative hearing.
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0120046045
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120046045
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