0120111065
09-06-2012
Mary Jackson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Mary Jackson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111065
Hearing No. 531-2010-00051X
Agency No. OCO-07-2288-SSA
DECISION
Complainant timely filed an appeal from the Agency's November 15, 2010, final order concerning her 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the Administrative Judge properly issued a decision without a hearing, and whether he properly determined that Complainant had not shown that she had been discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefit Technical Examiner, GS-0901-09, at the Agency's Office of Disability Operations in Baltimore, Maryland. On March 17, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (55) when, in July 2007, she was not referred for promotion to the position of Social Insurance Specialist (Claims Technical Examiner), GS-105-11, which was advertised under Vacancy Announcement B-3406.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On March 11, 2010, the Agency filed its Motion for Judgment without a Hearing. Complainant did not file any motion or statement in opposition to the Agency's Motion. The AJ issued a decision without a hearing on October 14, 2010, in favor of the Agency.
In his decision, the AJ determined that there were no genuine issues of material fact in dispute such that a hearing to resolve issues of credibility was required. He found that Complainant had applied for the position of Social Insurance Specialist (Claims Technical Examiner), GS-105-11, during the period between May 14, 2007, and June 1, 2007, when vacancy announcement B-3406 was open, along with 490 other applicants. A scoring committee of three individuals reviewed the applications and awarded points based upon the relevant experience of the applicants as set forth in their applications compared with the qualifications, weights, and factors set forth in the vacancy announcement, as well as other agreed-upon factors such as classes, details, and other positions held by the applicants. The AJ found that Complainant did not tailor her application to the ranking criteria listed in the vacancy announcement. The cut off to make the Best Qualified List (BQL) was a score of 98; Complainant scored a 50. The BQL consisted of 148 applicants who scored over 98. There were 31 selectees for the position; 20 of the selectees were over 40, and 6 selectees were older than Complainant.
The AJ concluded that Complainant did not satisfy the elements of a prima facie case of age discrimination. Complainant was a member of the protected class in that she was over 40 at the time of her non-selection, she applied and was qualified for the position, but was not selected. However, the AJ concluded that Complainant did not present facts which raised an inference of discrimination because many individuals who were selected were in Complainant's protected class and six of the selectees were older than Complainant. The AJ also noted that the scoring committee members did not know Complainant's age. Even assuming that Complainant had established a prima facie case of age discrimination, the AJ found that the Agency had presented a legitimate, nondiscriminatory reason for Complainant's non-selection, namely, that she did not score high enough to make the BQL. The AJ concluded that Complainant did not produce evidence to show that the Agency's reason was pretext for age discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her argument in support of her appeal, Complainant argued generally that her case should have gone to a hearing before the AJ, so that unspecified "smoking gun" evidence could be presented. Complainant did not address specifically any errors of fact or law made by the AJ. The Agency submitted a statement in opposition to Complainant's appeal, in which it urged the Commission to affirm its final order.
STANDARD OF REVIEW
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. See 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a hearing
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. There was no need to resolve any issues of credibility. Complainant did not file a Motion in opposition to the Agency's Motion for a Decision without a Hearing. Additionally, she did not argue on appeal that there were facts in dispute, or credibility findings which needed to be rendered pursuant to a hearing. Therefore, we find that a decision without a hearing was properly issued.
Disparate treatment
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. Complainant established a prima facie case of age discrimination, in that many of the selectees were outside of her protected group (age over 40). However, the Agency articulated a legitimate, nondiscriminatory reason for Complainant not making the BQL, as her application score of 50 did not make the cut off of 98. As the AJ noted, Complainant's application was not tailored to this vacancy announcement, which negatively impacted her score. Further, of 31 selections, the Agency selected 20 members of Complainant's protected group for the position, six of whom were older than Complainant. Complainant has adduced no evidence to show that that the Agency's proffered explanation, more likely than not, was pretext for discrimination. We conclude, therefore, that Complainant has not established that she was discriminated against on the basis of her age.
CONCLUSION
Based on a thorough review of the record and in the absence of contentions on appeal from Complainant, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that he was discriminated against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 6, 2012
Date
2
0120111065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111065