0120111063
09-13-2012
Thomas A. Doame, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Thomas A. Doame,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111063
Hearing No. 531-2009-00229X
Agency No. OCO-08-0014-SSA
DECISION
On November 23, 2010, Complainant filed an appeal from the Agency's October 25, 2010, 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 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 on appeal are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against him on the bases of age (64) and reprisal for prior EEO activity when it did not select him for the position of Legal Administrative Specialist, and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Development and Support Examiner at the Agency's Office of Central Operations, Division of International Operations, in Baltimore, Maryland. On December 21, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (64) and reprisal for prior protected EEO activity when it did not select him for promotion to the position of Legal Administrative Specialist under Vacancy Announcements B-3408 and B-3416 and when it did not provide him with the correct position description for his Development and Support Examiner Position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. In his Prehearing Memorandum and Order, the AJ noted that the parties agreed that the issues in the case were whether the Agency discriminated against Complainant on the bases of age and reprisal when it did not select him for any of the Legal Administrative Specialist positions advertised under two Vacancy Announcements. On March 18, 2010, the Agency filed a Motion for a Decision without a Hearing. Complainant did not file an opposition to the Motion. On August 31, 2010, the AJ assigned to the case granted the Agency's Motion and issued a decision without a hearing.
In his decision, the AJ determined that a decision without a hearing was appropriate because there were no material facts in dispute. The AJ concluded that, even when viewing the evidence in the light most favorable to Complainant, the evidence did not establish that the Agency discriminated against Complainant on the basis of age or reprisal when it did not select him for the positions at issue.
The AJ found that, on May 15, 2007, the Agency announced a vacancy for the position of Legal Administrative Specialist, Benefit Technical Examiner (BTE). Complainant was one of 641 applicants for the position. A four-member panel of managers reviewed and scored the applications according to five Ranking Criteria: ability to research and analyze data, ability to interpret and apply procedures, ability to organize and convey information in writing, ability to communicate orally, and training and self development. The 190 applicants who received scores of 82 or higher were placed on the Best Qualified List (BQ List) that the Agency's Office of Human Resources forwarded to the selecting official (SO1). Complainant, who received a score of 22, was not named to the BQ List. SO1 selected 33 candidates, including 14 who were 40 or older, for the position. None of the selectees had prior EEO experience.
On June 4, 2007, the Agency announced a vacancy for the position of Legal Administrative Specialist, Foreign Benefit Technical Examiner (FBTE). Complainant was one of 379 applicants for the position. A four-member panel of managers, different from the BTE panelists, reviewed and scored the applications according to the Ranking Criteria used for the BTE vacancy. The 122 applicants who received scores of 82 or higher were placed on the BQ List that the Agency's Office of Human Resources forwarded to the selecting official (SO2). Complainant, who received a score of 68, was not named to the BQ List. SO2 initially selected 15 candidates, including seven who were 40 or older, and later also selected a 26-year-old applicant who had received a score of 85. None of the selectees had prior EEO experience.
The AJ determined that Complainant engaged in prior EEO activity in 1967. He found that nothing in Complainant's applications identified his prior activity and that the panelists were not aware of the activity. The AJ also found that, although Complainant's applications did not state his age, the panelists could infer that he was at least 59 because the applications noted that Complainant had worked for the Agency in 1966.
The AJ assumed, without deciding, that Complainant established a prima facie case of age discrimination for both vacancies because some of the selectees were substantially younger than Complainant. Noting that Complainant's prior EEO activity occurred 40 years before the events at issue here and that none of the panelists knew of the activity, the AJ concluded that Complainant failed to establish a prima facie case of reprisal.
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant for the vacancies. In that regard, the AJ noted that the selecting officials chose candidates from the BQ Lists and Complainant's scores were not high enough to qualify him for the Lists.
The AJ also found that Complainant failed to establish that the articulated reason was a pretext for discrimination. The AJ noted that Complainant offered no evidence that the panelists scored his applications in a biased or discriminatory manner. Similarly, Complainant offered no evidence that his qualifications were plainly superior to those of any of the applicants on the BQ Lists. The AJ concluded that the selectees' applications were more extensive and met the Ranking Criteria more clearly than Complainant's application. Accordingly, the AJ found that Complainant failed to establish that the Agency discriminated against him on the basis of age or reprisal when it did not select him for the BTE and FBTE positions.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the evidence of age discrimination is "clear and unequivocal" and that he has "solid evidence" of pretext. The Agency argues that Complainant has offered no evidence to show that the Agency discriminated against him on the basis of age or reprisal when it did not select him for the positions at issue.
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, at Chap. 9, � VI.B. (Nov. 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"). 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 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 United States 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 Corp. 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). 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, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly 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 record has been adequately developed, and 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 an opposition to the Agency's Motion for a Decision without a Hearing and has not argued on appeal that there were facts in dispute or credibility findings that needed to be made pursuant to a hearing. Therefore, we find that a decision without a hearing was properly issued.
Non-selection for the Legal Administrative Specialist Positions
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 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 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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). Complainant can do this by showing that the proffered explanations are unworthy of credence. Burdine, 450 U.S. at 256. Complainant can also establish pretext by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
After a review of the record, we find that Complainant has not shown that the Agency discriminated against him as alleged. Given the 40-year gap between Complainant's prior EEO activity and the adverse action at issue here, we find that Complainant has failed to establish a nexus between the protected activity and the adverse treatment. Further, as the AJ noted, the panelists were not aware of Complainant's prior EEO activity. Accordingly, we find that Complainant has not established a prima facie case of reprisal discrimination.
We assume for purposes of analysis, without so finding, that Complainant has established a prima facie case of discrimination based on age. The Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant for the Legal Administrative Specialist positions. The selecting officials chose candidates from the BQ Lists, and Complainant was not placed on the BQ Lists because his applications did not reflect sufficient relevant experience to merit scores of 82 or above.
Complainant has not shown the Agency's articulate reason to be pretextual. He has offered no evidence that the panelists scored his applications in a discriminatory manner or that his qualifications were plainly superior to those of the candidates on the BQ Lists. Although Complainant asserts that he has evidence of pretext and age discrimination, he has not identified or described that evidence. His bare assertion, without more, is insufficient to establish pretext. Complainant has not demonstrated that considerations of age or reprisal motivated the Agency's decisions not to select him for the positions at issue.
CONCLUSION
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, which implemented the AJ's finding that Complainant was not 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 13, 2012
Date
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0120111063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111063