0120142244
09-22-2016
Bernard S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bernard S.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Appeal No. 0120142244
Hearing No. 532-2012-00060X
Agency No. DCA-A-H11-06
DECISION
On June 2, 2014, Complainant filed an appeal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 which accepted an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding in a decision without a hearing that Complainant did not demonstrate that he was subjected to reprisal or discrimination.
ISSUES PRESENTED
The issues presented in this case are whether the AJ properly issued a decision without a hearing; and whether Complainant established that he was subjected to reprisal and/or discrimination when he was nonselected and found to be not qualified for three Auditor GS-11/12 positions after it was discovered that the Agency was applying the wrong qualification standards.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of Auditor, GS-11/12, at the Defense Contract Audit Agency (DCAA). He applied for the position under three vacancy announcements that opened in April 2010 and ended in April 2011. The vacancy announcements were used to fill multiple vacancies in various geographical locations. The Agency's applications were processed by the Defense Finance and Accounting Service (DFAS), Delegated Examining Unit (DEU).
On July 24, 2010, the DEU rated Complainant as "qualified" based on his accounting experience. It was subsequently determined that DEU was not applying the appropriate qualification standards for the Auditor positions. The Agency noted that the Auditor position required more stringent auditing experience than the DEU had accepted. As such, Complainant and at least three other applicants were found not to be qualified after they had initially been found qualified. The Agency made a request that a "pass over" be allowed for this position as the noted qualified applicants were not actually qualified. The Office of Personnel Management (OPM) denied the request because the Agency had not submitted the appropriate documentation. After resubmission to OPM, OPM agreed that Complainant could be removed from the referral certificate. As such the certificate was returned to OPM without a selection and a new job announcement was posted.
Complainant was also found not qualified for the two remaining Auditor positions for which he had applied. For one vacancy announcement, he was found not to be eligible and for the other it was determined that he did not have the required specialized experience, education, or general experience requirements for the specialty and grade. Complainant's resume indicated that he had experience with internal controls and examination and reconciliation of accounts; however, he lacked any experience in auditing process and systems, generating audit plans, or preparing audit reports which were requirements for the Audit position.
On June 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), disability (paralyzed right leg, ringing in the ear, and dermatitis), reprisal, and age (58) when he was not selected or deemed qualified for the aforementioned positions.
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 Administrative Judge. Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on April 1, 2014.
The AJ found, among other things, that while Complainant had shown that he applied for the position of Auditor, GS-11/12 and that he was nonselected, he did not show that he was qualified for the auditor position(s) at issue. As was noted, Agency officials discovered that the DFAS DEU was not appropriately applying the qualification standards and specialized experience for the DCAA auditor positions. Specifically, they found that accounting experience obtained independent of financial auditing experience was incorrectly being considered as qualifying for the DCAA auditor positions when actually more stringent auditing experience was required. Three individuals who reviewed Complainant's application package independently found that he was not qualified, as did a human resources specialist who conducted a recent independent review. Further the record showed that applicants, other than Complainant, were similarly determined not to be qualified for the position. The Agency submitted a "pass over" request to OPM because Complainant did not meet the minimum qualifications required. The "pass over" request was approved by OPM. Complainant was therefore "passed over" for the position. Moreover, he was also found not qualified based on the lack of documented specialized experience in relation to the two subsequent vacancy announcements. Among other things, the AJ assumed that Complainant established a prima facie case as to all bases, but found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, Complainant contends, in pertinent part, that the AJ made impermissible credibility determinations which are improper when ruling on a summary judgment motion. Moreover, he contends that there are material issues of fact remaining. Complainant argues that he was initially found to be qualified for the Auditor position and without notice or warning, the qualification standard was changed to deny him the position. He argues that he was not provided the opportunity to demonstrate that he met the new higher qualification standard. He asserts that the information that he provided to demonstrate that he was qualified was disregarded because of his age and disability. Complainant also contends that there is a material fact at issue as to whether he is a qualified individual with a disability and whether he was passed over because of his disability. Complainant maintains that all of the decision makers were aware that he was a disabled veteran and therefore entitled to preferential hiring status.
In response, the Agency maintains that the decision granting summary judgment was appropriate. The Agency contends that while it is true that Complainant was not notified of the initial pass-over request as required, several rating officials found that the qualification standards had been incorrectly characterized. The Agency asserts that the action of correcting the qualification standards was not specific to Complainant as several other applicants were excluded from consideration as well.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 Chapter 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
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. 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. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond 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, based upon our review we find that there are no material facts at issue and that summary judgment was appropriate.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the initial qualification standards for the position were incorrect and after they were corrected Complainant and several other applicants were found not qualified for the position. Moreover, Complainant was also found not qualified for the two remaining Auditor positions for which he had applied. For one vacancy announcement, he was found not to be eligible and for the other it was determined that he did not have the required specialized experience, education, or general experience requirements for the specialty and grade. Complainant's resume indicated that he had experience with internal controls and examination and reconciliation of accounts; however, he lacked any experience in auditing process and systems, generating audit plans, or preparing audit reports which were requirements for the Audit position.
While Complainant disagrees and argues that he was qualified, he did not provide any evidence which supported his contention that he was qualified for the position. We find that simply disagreeing with the findings is not enough to establish pretext. Accordingly, we find that Complainant did not show that the Agency's reasons were pretext for discrimination. Further, with respect to Complainant's assertions on appeal, we find that other than Complainant's conclusory statements, he did not show that his disability and/or age played any role in the Agency's decisions involving these positions. The evidence simply supports the finding that Complainant did not demonstrate that he was subjected to reprisal and/or discrimination.
CONCLUSION
Accordingly, we AFFIRM the AJ's decision which found that Complainant did not demonstrate that he was subjected to reprisal and/or discrimination when he was not selected for three Auditor positions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
___9/22/16_______________
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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