01A41742_r
04-30-2004
Moire Latamore, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Moire Latamore v. Department of Justice
01A41742
April 30, 2004
.
Moire Latamore,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A41742
Agency No. M-03-0017
Hearing
No. 100-2003-08255X
DECISION
Complainant filed a formal EEO complaint in which she claimed that
the agency discriminated against her on the basis of her age (46) when
she was not selected for the position of Paralegal Specialist, GS-12.
Complainant was found to be qualified for the position but the agency
officials who interviewed the candidates decided not to recommend her
for selection. The selectee was 42 years old and she was one of three
candidates recommended to the selecting official.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. Without holding a hearing, the AJ issued a decision finding
no discrimination. The AJ found that complainant failed to establish a
prima facie case of age discrimination with regard to her nonselection.
The AJ reasoned that the four years and eight months gap in age between
complainant and the selectee was too narrow to establish a prima
facie case of age discrimination. The AJ also noted that the two other
candidates recommended for selection were within complainant's protected
group as they were 56 and 41 years old, respectively. The agency
subsequently issued a final order implementing the AJ's decision.
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.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792, 802-803 (1973). See also Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age was a
determinative factor, in the sense that �but for� age, complainant would
not have been subject to the adverse action at issue). A complainant
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978).
To establish a prima facie case of age discrimination, a complainant
must show that he was over forty years of age, that he was subjected to
an adverse employment action, and that he was treated less favorably
than other similarly situated employees younger than himself, i.e. he
was accorded treatment different from that given to persons who are
considerably younger than he. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).
The Supreme Court has held that because the ADEA prohibits discrimination
on the basis of age and not class membership, the fact that a similarly
situated comparative is substantially younger than the plaintiff is a
far more reliable indicator of age discrimination than the fact that
the plaintiff was treated differently than someone outside his protected
class. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002, at n.4 (September 18, 1996).
While there is no bright-line test for what constitutes �substantially
younger,� that term has generally been applied to age differences in
excess of five years. See Hammersmith v. Social Security Administration,
EEOC Appeal No. 01A05922 (March 6, 2002). In the instant matter,
complainant is four years and eight months older than the selectee,
which we find to be an insufficient difference in age to establish an
inference of age discrimination. See Hickman v. Department of Justice,
EEOC Appeal 01A11797 (December 20, 2001). Moreover, the fact that one
of the other candidates referred to the selecting official is ten years
older than complainant is further evidence that complainant's age was
not a factor in her nonselection. We find that complainant failed to
establish a prima facie case of age discrimination.
After a review of the record in its entirety, including complainant's
arguments on appeal, it is the decision of the Equal Employment
Opportunity Commission to affirm the agency's final order finding that
no age discrimination occurred.
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
April 30, 2004
__________________
Date