01a10140
03-20-2001
Paul D. Benton, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Paul D. Benton v. Department of the Army
01A10140
March 20, 2001
.
Paul D. Benton,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A10140
Agency No. COL 97-AR-1015E
Hearing No. 120-98-9591X
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency order (order)
concerning his complaint of unlawful employment discrimination on the
basis of age (58 at the time of the alleged discriminatory incident) in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. For the reasons stated herein,
the agency's order is reversed and remanded.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him on the above-referenced basis when it
failed to select complainant for a Ship Surveyor, GS-09/11, position.
BACKGROUND
Complainant was self-employed as a Superintendent and Consultant for the
Maritime Industry. The agency issued an internal and an external vacancy
announcement recruiting for a Ship Surveyor, GS-09/11 position.<1> In
November 1996, complainant applied for the external vacancy announcement.
He ranked third on a certificate of eight eligibles referred to the
selecting official (SO) for a GS-09, Ship Surveyor position. Complainant
interviewed for the position but the eligibles who ranked first and
fourth were selected for the position (Selectee 1 and Selectee 2).
Selectee 1 was 46 years of age and Selectee 2 was 43 years of age.
Selectee 2 later declined the position and the eligible who ranked second
on the certificate was selected. He was 50 years of age. Subsequently,
two applicants from the internal announcement were selected for GS-09,
Ship Surveyor positions. Their ages were 45 and 52.
Complainant, believing he was a victim of discrimination, sought EEO
counseling and subsequently filed a complaint alleging that the agency
discriminated against him based on age (58) when it failed to select
him for any one of the four Ship Surveyor positions. Specifically,
complainant stated that he is equally or better qualified than the
selectees, the SO made a discriminatory comment about age, and the SO
gave him inaccurate information about applying for similar positions with
the agency in the future. Complainant also stated that although his
age was not indicated on his application, his personal characteristics
and work history would reveal his age and that the SO was hostile during
his interview.
The SO stated that the selectees' qualifications were better suited for
the Ship Surveyor positions than complainant's because complainant was
qualified in only one aspect of ship work (electrical). The SO also
stated that the selectees demonstrated an ability to perform well with
minimal supervision, complainant had difficulty answering technical
questions during his interview, and complainant had a possible conflict
of interest because he served as a private contractor for the maritime
industry. Lastly, in reference to the discriminatory comment alleged by
complainant, the SO stated that he did not know any of the eligibles'
ages but, when he was informed of the instant complaint, he commented
that one selectee appeared older than complainant.
At the conclusion of the investigation, complainant received a copy
of the investigative report 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
establish a prima facie case of discrimination because he failed to show
that his qualifications matched those of the selectees or that age was
a determining factor. The AJ further found that, assuming complainant
could establish a prima facie case, he did not establish pretext. The
agency issued an order adopting the AJ's decision without modification.
This appeal followed, in which complainant stated that the AJ issued a
summary judgment decision in error because genuine issues of material
fact exist and the credibility of the SO is at issue.
ANALYSIS AND FINDINGS
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 does not
sit as a fact finder. Id. 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. A disputed 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 under the ADEA, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The Commission finds that the AJ erred when he concluded that there
existed no genuine issue of material fact in this case. Such issues do
exist, particularly regarding (1) the qualifications of the selectees
compared to those of the complainant and how they relate to the position
at issue and (2) statements made by the SO that have been construed
as discriminatory. These issues can only be resolved by a hearing.
After a careful review of the record and for the reasons cited above, it
is the decision of the Commission to VACATE the agency's final order and
find that the record is not fully developed. Accordingly, we find that
summary judgment should not have been granted in this matter because a
genuine issue of material fact exists. See Kenney v. Department of the
Army, EEOC Request No. 01994419 (July 7, 2000)(citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-9 (1986). As such, this case is REMANDED
to a Hearings Unit for processing in accordance with this decision and
the order below.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(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 29 C.F.R. � 1614.409.
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
March 20, 2001
__________________
Date
1An internal announcement is for current employees of the Federal
government, whereas, an external announcement is for applicants who are
not current employees of the Federal government.