0120072494
09-19-2007
Kevin R. Hull, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Kevin R. Hull,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072494
Hearing No. 570-2006-00366X
Agency No. HS-05-USCG-001382-CHCG62
DECISION
On April 27, 2007, complainant filed an appeal from the agency's March
29, 2007, 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant worked as a contractor with Spectrum
Management Consultant, a non-governmental business entity, from February
28 through August 28, 2005. On or about June 10, 2005, he applied for the
agency's Telecommunications Specialist, GS-0391-9/11/12/13, position (the
position) advertised under USCG Vacancy Announcement No. CG-05-0800-HQRP,
and qualified for the position at the GS-13 level. He thereafter
discovered that he was not selected for the position, and on October
26, 2005, he filed an EEO complaint alleging that he was discriminated
against on the bases of race (African-American) and age (D.O.B. 07/18/64)
when he learned that he was not selected for the position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On January 11, 2006, the agency submitted a motion
for a decision without a hearing, and the complainant filed a motion to
extend the deadline to respond to the agency's motion. On January 30,
2007, the agency filed an opposition to complainant's motion. On February
1, 2007, complainant filed his opposition to the agency's motion for a
decision without a hearing. The AJ assigned to the case issued a decision
without a hearing on March 21, 2007. Therein, he denied complainant's
motion to extend the deadline, stating that his Acknowledgement and Order,
dated September 28, 2006, expressly stated that the failure to obtain
representation would not be grounds for postponement. He accordingly
did not consider complainant's opposition, exhibits, or affidavits.
In his decision, the AJ assumed arguendo that complainant established
a prima facie case of race and age discrimination. He then determined
that management articulated legitimate, nondiscriminatory reasons for its
action. Specifically, two recommending officials (ROs) averred that they
began reviewing candidates at the lower levels first and planned to review
candidates at each successive level until they found a suitable candidate.
The ROs recommended to the selecting official (SO) an applicant (Mr. T),
who had worked in the Spectrum Management Division as a contractor and
was ranked number one on the GS-11 certificate of eligibles. One of
the ROs attested to Mr. T's performance of automation duties, and stated
that he had formal education in computers, secured on-the-job training,
and had taken formal short courses in radio spectrum matters. The other
RO averred that the decision to make a selection at the lower level was
due to the entry level of the work, routine administrative work required
to support the Spectrum Management efforts, and the afforded greater
promotion potential.
The AJ found that complainant failed to show that the agency's reasons
were pretext for discrimination. Although complainant asserted that no
minorities had been selected over the course of the last three years,
the AJ determined that complainant did not provide proof to support his
assertion, such as the names of minority candidates, a description of
their racial and/or ethnic background, a list of the positions applied
for, and the approximate date or year of their nonselections. Moreover,
the AJ noted that, while complainant alleged that another candidate
overheard the SO stating that the agency sought a younger candidate, and
that a Mr. K made a similar statement while speaking on the telephone,
complainant failed to provide statements from said individuals. The AJ
further determined that neither of the two individuals was involved in the
decision not to select complainant, and as such, their opinions standing
alone were not sufficient to show pretext. Inasmuch as complainant
argued that Merit Promotion Principles and Veterans Preference status were
ignored, the AJ found that such violations failed to show discrimination
based upon race or age. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged. Complainant filed the present
appeal.
In his brief in support of the appeal, complainant asserts that he did
not receive the full and fair due process rights of a hearing as part
of the investigative process. In this regard, he notes that he filed
a second request for production of documents in December 2006, but the
agency failed to respond. He further asserts that, when the AJ denied his
opposition, he erroneously cited to a receipt date of September 28, 2006
for the Acknowledgement and Order, stating that his discovery request was
untimely under the order. According to complainant, he did not receive
said Order until November 2006. Complainant also maintains that the AJ
misconstrued and undervalued his evidence of pretext as a matter of law.
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. 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999) (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo").
We must first 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. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003). After a careful review of the record,
the Commission finds that the AJ's decision referenced the appropriate
regulations, policies, and laws. Moreover, we find that the AJ properly
issued a decision without a hearing because complainant has failed to
show that a genuine issue of material fact exists.
In his decision, dated March 21, 2007, the AJ denied complainant's motion
to extend the deadline for submission of his brief in opposition to the
agency's motion for a decision without a hearing. He found that the
Acknowledgement and Order, dated November 1, 2006, expressly stated
that the failure to obtain representation would not be grounds for
postponement. See AJ Decision, fn. 1. Complainant asserts that the AJ
erroneously cited to complainant's receipt date of the Acknowledgement
and Order as September 28, 2006, explains that he did not receive the
Acknowledgement and Order until November 2006, and argues that as such his
second request for production of documents in December 2006 was timely.
He, however, fails to provide the specific date in November 2006 that he
received the aforesaid Order, and fails to explain the relevancy of the
information he sought through the request for production of documents.
For these reasons, we find that the AJ did not err when he denied
complainant's motion to extend the deadline.
Furthermore, we find that complainant has failed to identify a genuine
issue of material fact. To the extent that he maintains that the
AJ undervalued his pretext evidence, he identifies discrepancies in
the record which are not material. For example, he asserts that no
position description for the position existed at the GS-9 or GS-11 levels.
However, the position was, in fact, listed as a 9/11/12/13 level position
with an accompanying description. He also argues that Mr. T did not
meet the minimum qualifications. However, one of the ROs attested to
Mr. T's performance of automation duties, and stated that he had formal
education in computers, secured on-the-job training, and had taken formal
short courses in radio spectrum matters. Finally, he states that another
candidate was told that he would not have been selected at the GS-13
level because there were better qualified applicants on the certification
list, and he asserts that one can infer that the agency looked at all the
certificates of eligibles in forming its decision. We find that, even
if the agency was aware of the applicants on each of the certificates,
the agency's legitimate, nondiscriminatory reasons reveal a desire to
make a selection at the lower level due to the entry level of work,
routine administrative work required to support the Spectrum Management
efforts, and the afforded greater promotion potential. Complainant has
not rebutted these reasons. For the foregoing reason, we concur with
the AJ's determination and find that a decision without a hearing was
appropriately rendered in the subject case.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final order.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
___9/19/07_______________
Date
2
0120072494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120072494