0120142550
01-14-2016
Bennie S.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bennie S.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120142550
Hearing No. 520-2014-00250X
Agency No. ARWATERV13FEB00607
DECISION
Complainant filed an appeal from the Agency's May 22, 2014 final order concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a WG 7 Assistant Plumber at the Arsenal Public Works Division facility in Watervliet, New York.
On March 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (63) when:
1. On January 4, 2013, Complainant's supervisor informed Complainant that another employee was selected for the Maintenance Worker position, announced under Vacancy NEAJ 12171646786838; and
2. On January 4, 2013, in the presence of a co-worker, Complainant's supervisor told Complainant that he [Complainant] did not have mechanical experience and that his resume was fraudulent.
The pertinent record shows that Complainant applied for the Maintenance Worker position. He was 63 at the time of his application. Complainant was not interviewed or selected. The person selected was substantially younger than Complainant. Complainant's first level supervisor was the recommending official. Complainant's second level supervisor was the selecting official. Both the recommending and selecting officials knew Complainant and the selectee.
The first level supervisor developed a matrix to rank the candidates. Under the matrix, Complainant was rated 60 points. The person selected received the maximum rating of 100 points. Complainant's supervisor and his Team Leader believed that Complainant did not perform all of the duties that he had listed on his resume, with regard to working with pumps, compressors and electrical work. Complainant was not recommended for selection. The selecting official also had served as a supervisor for the unit in which Complainant was assigned. Complainant indicated that he should have been selected based on his tenure and his status as a veteran. He also averred, without support, that management provided the selectee with the questions in advance.
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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On March 14, 2014, the AJ assigned to the case provided the parties with notice of her intention to issue a decision without a hearing. On May 20, 2014, the AJ issued a summary decision in favor of the Agency.
The AJ determined that the record was adequately developed for summary disposition and that there was no genuine dispute as to the material facts at issue. The AJ found that it was undisputed that the Agency relied on a point system and that the selected individual received a higher score. The AJ found that Complainant failed to present sufficient evidence to raise a genuine issue of fact with respect to the Agency's articulated reasons for not selecting him. The AJ found there was "no evidence of pretext for the Agency's decision not to further review Complainant's application." She concluded that summary judgment in favor of the Agency was appropriate, given the absence of evidence of pretext.
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.
This appeal followed.
ANALYSIS AND FINDINGS
We must 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 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, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant argues that the AJ erred in determining there were no undisputed issues of material fact. Complainant maintains that there is a dispute regarding whether Complainant falsified his resume and whether he performed the work that he claimed to have performed. He also maintained that the Agency used a matrix system as a ploy to justify its selection.
In response, the Agency contends that the AJ did not find that Complainant falsified his qualifications and that this was not a material fact. Rather, the selecting official did not believe that Complainant had the experience required for the position. This belief was based on the selecting official's own observations while supervising Complainant. The Agency also argued that Complainant offered no evidence to show that he performed the work that he listed on his resume, despite the AJ providing him with the opportunity to produce sufficient evidence to raise a credibility issue or dispute of material fact with regard to his proof of pretext.
As an initial matter, we find that the record is adequately developed and there are no disputes of material fact.
Disparate Treatment - Age
The ADEA at Section 633(a) requires that all federal employment actions shall be made free from any discrimination based on age. 29 U.S.C. � 633(a). In this case, we agree with the AJ that Complainant established the elements of his prima facie case of age discrimination. Complainant was over age 40, was qualified for the position for which he applied, was not selected, and the Agency selected a substantially younger individual for the position.
Next, we find that the Agency met its burden of production. The Agency provided a specific, clear, legitimate and individualized explanation why the selecting official selected the younger individual for the position. The selectee received a higher matrix rating than Complainant. The selecting official believed that the selectee was more experienced with regard to the pertinent job requirements. To survive summary judgment, Complainant would have to offer evidence that the stated reason was a pretext for discrimination. Because Complainant has not introduced evidence, other than his resume, that demonstrates that there is a reason to disbelieve the Agency's articulated nondiscriminatory explanation for its actions, there is no genuine issue of material fact.
Upon review of the record, therefore, we find that the AJ properly found that the instant complaint was suitable for summary judgment.
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 14, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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