01a20162_0505
03-14-2002
Stephen Schneider, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Stephen Schneider v. Department of the Navy
01A20162; 01A20505
03-14-02
.
Stephen Schneider,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01A20162;
01A20505
Agency No. DON-99-31967-002
Hearing No. 100-99-8122X
DECISION
INTRODUCTION
Complainant timely initiated two appeals (one from a final agency
decision regarding attorney's fees; the other from a final agency
order adopting the decision of an EEOC Administrative Judge (AJ))
concerning his formal complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. For the reasons that follow, the final agency
decision regarding attorney's fees and the final agency order regarding
unlawful employment discrimination are AFFIRMED.
ISSUES PRESENTED
The issues presented herein are (1) whether the agency awarded complainant
an appropriate amount of attorney's fees, and (2) whether complainant
has proven by preponderant evidence that he was discriminated against
on the basis of age (59) when he was not selected for the position of
Supervisory Naval Architect/Mechanical Engineer.
BACKGROUND
Complainant filed a formal complaint dated December 9, 1998, in which
he alleged what has been identified as the second issue presented.
The complaint was accepted for investigation. At the conclusion of
the investigation, the complainant was informed of his right to elect a
hearing before an EEOC AJ, or an immediate decision on the record from
the agency. Complainant chose the former. Consequently, complainant's
case was forwarded to the appropriate EEOC District Office and assigned
to an AJ.
Prior to the hearing, the AJ notified the parties that they may engage
in discovery. Pursuant to that notification, complainant submitted a
Motion for Discovery to the agency on October 9, 1999. When the agency
did not comply with the request in a timely manner, complainant filed a
Motion to Compel the Agency to answer his Motion for Discovery on December
10, 1999. Ten days later, the agency partially complied with the Motion
for Discovery. On December 27, 1999, complainant filed a second Motion
to Compel in order to obtain the information that the agency failed
to provide. On May 11, 2000, the AJ granted complainant's Motion to
Compel and ordered the agency to respond fully to complainant's Motion
for Discovery within fifteen days from the date of the order.
When the agency failed to comply with the AJ's order in a timely manner,
complainant filed a Motion for Sanctions on June 7, 2000, requesting that
the AJ impose sanctions in the form of attorney's fees incurred in the
filing of the Motions to Compel and Motion for Sanctions. The motion also
requested that the AJ draw an adverse inference regarding the information
that the agency had failed to provide. The agency subsequently provided
some, but not all, of the information that had not been previously
provided.
On April 24, 2001, complainant's case was assigned to a new Administrative
Judge (AJ2). AJ2 held a prehearing conference on July 12, 2001, at
which time the agency was ordered to provide the rest of the information
contained in complainant's Motion for Discovery. On July 30, 2001,
the agency had not provided the information. On August 2, 2001, AJ2
issued a decision ordering the agency to bear the reasonable costs and
attorney's fees incurred by complainant in the filing of the Motions to
Compel filed on December 10, 1999, and December 27, 1999 and the Motion
for Sanctions filed on June 7, 2000.
Pursuant to AJ2's decision on attorney's fees, complainant's attorney
submitted documentation to the agency outlining the costs and fees
incurred by complainant as a result of the three motions. According to
the documentation submitted, complainant incurred a total of $825.00.
The agency disagreed with the total amount submitted by the attorney, and
instead awarded an amount of $525.00. Complainant appealed that decision
to the Commission. The appeal was docketed as EEOC Appeal No. 01A20162.
On August 8 and 9, 2001, AJ2 conducted a hearing on the merits of
the case. At the conclusion of the hearing, she issued a decision
finding that complainant had not been discriminated against as alleged.
Specifically, AJ2 found that the agency's stated reasons, that complainant
was not selected because he had a combative personality and because
the selectee demonstrated a far superior understanding of the internal
problems of the organization and the challenges and plans to overcome
those challenges, qualified as legitimate and nondiscriminatory. AJ2
concluded by finding that complainant failed to put forth evidence proving
that the agency's stated reasons were a pretext for discrimination.
The agency adopted those findings. Complainant appealed. That appeal
was docketed as EEOC Appeal No. 01A20505. The Commission has opted
to consolidate both appeals for further administrative processing.
29 C.F.R. � 1614.606.
ANALYSIS AND FINDINGS
Attorney's Fees and Costs
In Stull v. Department of Justice, EEOC Appeal No. 01941582 (1995), the
Commission ruled that a complainant may be awarded interim attorney's fees
as a sanction for failure to produce records requested during discovery
even where s/he is unsuccessful on the ultimate issue of discrimination.
However, Stull does not apply to complaints of age discrimination because
no attorney's fees and costs may be awarded under the ADEA for services
performed at the administrative level. See EEOC Management Directive,
Chapter 11-3 (November 9, 1999). For that reason, the Commission AFFIRMS
the agency's final decision on attorney's fees.
Discrimination Claim
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were
motivated by discriminatory animus toward complainant's age. We discern
no basis to disturb the AJ's decision, or the agency's adoption thereof.
The final agency order is AFFIRMED.
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
___03-14-02_______________
Date