Andre R. Brown, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A44645_r (E.E.O.C. Nov. 29, 2004)

01A44645_r

11-29-2004

Andre R. Brown, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Andre R. Brown v. Department of the Army

01A44645

November 29, 2004

.

Andre R. Brown,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A44645

Agency No. ARFTJACK02NOV0026

Hearing No. 140-2004-00109X

DECISION

Complainant filed this appeal from the June 8, 2004 agency decision

implementing the May 28, 2004 decision of the EEOC Administrative Judge

(AJ) finding no discrimination.

Complainant, a police officer, alleged that he was discriminated against

on the basis of age when he did not qualify for referral for selection

to the position of a supervisory police officer.

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 age discrimination. Specifically, the AJ found that complainant failed

to demonstrate that similarly situated employees not in complainant's

protected class were treated differently under similar circumstances.

The AJ further concluded that even if complainant had established a

prima facie case of age discrimination, the agency had articulated a

legitimate, nondiscriminatory reason for its action. Specifically, the

AJ concluded that complainant was not referred for selection because he

was not eligible either under the Veterans Readjustment Authority (VRA)

or Law Enforcement Authority (LEA).

The record reveals that the vacancy announcement for the position of

supervisory police officer was open to current employees from the LEA,

disabled veterans, and candidates eligible under the VRA. The record

also reveals that to be an eligible LEA candidate, the applicant had

to have the status of a permanent employee. The record also reveals

that complainant's employment was that of a term employee, whose term

began on June 3, 2002 and was not to exceed June 2, 2004. The record

reflects that to be an eligible VRA candidate, the applicant had to

have been on active duty within the last 10 years. The record reveals

further that although complainant had served in the military, his VRA

status had expired. The record also reveals that complainant submitted

his employment application on-line via the Resumix system and indicated

that he did not have a veterans preference. Complainant also did not

identify his age on his application.

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.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Complainant was not selected for referral because he was

not eligible under VRA or LEA. Further, construing the evidence to

be most favorable to complainant, we note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward complainant's protected class.

Accordingly, the agency's decision finding no discrimination 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

November 29, 2004

__________________

Date