0120064636
03-13-2008
Charles W. Heckman, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Charles W. Heckman,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01200646361
Hearing No. 380-2005-00175X
Agency No. WGS04010
DECISION
On August 9, 2006, complainant filed an appeal from the agency's July
24, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission affirms
the agency's final order.
At the time of events giving rise to this complaint, complainant,
an applicant, applied for numerous positions within the United States
Geological Survey, in the Department of Interior at various facilities
across the country. Complainant was not selected for these positions.
On April 24, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of age (D.O.B. 08/23/41) when:
1. in May 2004, he was not selected for the position of Interdisciplinary
Supervisory Biologist, GS-0401-15, originally advertised under Vacancy
Announcement Number CR-2003-0237 and re-advertised under Vacancy
Announcement Number CR-2004-0094;
2. In March 2004, he became aware that he was not selected for the
position of Supervisory Hydrologist, GS-0401-14, advertised under Vacancy
Announcement Number ER-S-2003-0094;
3. In December 2003, he became aware that he was not selected for the
position of Biologist, GS-0401-15, advertised under Vacancy Announcement
Number HQ-2003-0267;
4. In December 2003, he became aware that he was not selected for the
position of Supervisory Biologist, GS-0401-15, advertised under Vacancy
Announcement Number WR-2003-0269, and re-advertised under Vacancy
Announcement Dumber WR-2003-0270;
5. In July 2004, he was not selected for the position of Biologist,
GS-0401-15, advertised under Vacancy Announcement Number HQ-2004-0093
and Vacancy Announcement Number HQ-2004-0094, and re-advertised under
Vacancy Announcement Number HQ-2004-0171; and
6. In July 2004, he was not selected for the position of Ecologist,
GS-0408-15, advertised under Vacancy Announcement Number HQ-2004-0095
and Vacancy Announcement Number HQ-2004-0096, and re-advertised under
Vacancy Announcement Number HQ-2004-0172.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). 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 June 7, 2006.
Specifically, the AJ found that complainant failed to establish a prima
facie case of age based disparate impact discrimination. The AJ found
that complainant established a prima facie case of age based disparate
treatment discrimination; however, the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the positions.
The AJ found that taking the facts in the light most favorable to
complainant, he failed to show that the agency's reasons were a pretext
for discrimination. As such, the AJ found that complainant failed to
establish that a genuine issue of material fact existed such that a
hearing was warranted. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged.
Complainant makes numerous contentions on appeal, including many which he
recognizes are not matters within the jurisdiction of the Commission.
The Commission declines to address those matters not within our
jurisdiction. Complainant also argues that his claim of retaliation
was ignored. We note, however, that nowhere in the record does it
reflect that complainant requested to amend his complaint with a claim
of retaliation. As such, we decline to do so on appeal. The agency
requests that we affirm its FAD.
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. 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). 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 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. Department of Defense, 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).
We find that the record is sufficiently complete for the AJ to have
issued a decision without a hearing. Although complainant in his appeal
argues that the AJ erred in relying upon statements of the selecting
officials (SOs) that lacked credibility, we find that the record does
not support complainant's contentions. Complainant argues that the SOs'
credibility were compromised since he believed they could discern his
age from his application even though they all stated that they did not
know complainant's age at the time of the selections at issue. We find
that complainant's contentions are insufficient to show that the SOs'
statements lacked credibility because complainant merely speculates
that they discerned his age, or that if they did not, they should have
done so.
Turning to the merits of the case, the Commission has held that to
establish a prima facie case of disparate impact the complainant must
show that an agency practice or policy, while neutral on its face,
disproportionately impacted members of the protected class.2 This
is demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
994 (1988) (complainant must present "statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the
exclusion"). Specifically, complainant must: (1) identify the specific
practice or practices challenged; (2) show statistical disparities;
and (3) show that the disparity is linked to the challenged practice
or policy. Id.; Obas v. Department of Justice, EEOC Appeal No. 01A04389
(May 16, 2002). The burden is on the complainant to show that "the
facially neutral standard in question affects those individuals [within
the protected group] in a significantly discriminatory pattern." Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Department
of the Navy, EEOC Petition No. 03990119 (August 31, 2000).
Complainant argues on appeal that "a pattern of hiring Federal civil
service employment strongly oriented to the age of the applicants at
initial hiring has been a contributing factor to the loss of 1.1 million
civil service jobs for preference-eligible veterans." Complainant's
brief at 4. Complainant further argues that "the age barrier has kept
[complainant] or any other veteran of the Vietnam War with a similar
length of service from being considered for government employment at any
level by most agencies within the Federal Government." Complainant's
appeal brief at 9. Complainant also argues that he clearly alleged
that "he would not be considered for any Federal employment at any level
because of his age and because some of the civil servants responsible for
making the selection for the agency dodged the draft during the Vietnam
War and would feel uncomfortable working with someone who served in
the war." Id. Complainant argues that "the practice of choosing only
current civil servants to fill [the] vacancies is a facially neutral
criterion that serves as another impediment preventing older employees
from being hired for civil service vacancies, just as it is an absolute
bar to preference-eligible veterans." Id. at 10. Assuming complainant
has identified the specific practices he is challenging, we find that
the record is completely void of any statistical evidence to show
that such disparities exist. Further, nothing in the record supports
complainant's contentions that the alleged disparities in hiring older,
veteran preference-eligible candidates are linked to a policy or practice.
As such, we find that complainant failed to establish a prima faice case
of disparate impact and therefore, no genuine issue of material fact
existed such that a hearing was warranted with regard to this claim.
Turning to complainant's claim of disparate treatment, in order to prevail
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Generally, he must 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate, nondiscriminatory reasons for its conduct. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
age discrimination we find that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant. With regard
to claim (1), given that the selecting official retired, a panel member
(PM1) of the selecting panel provided an affidavit stating that:
[C]omplainant was not considered one of the better candidates.
His application indicated he had experience and knowledge in various
areas of science. However, he had no pertinent managerial experience.
The person selected for this position had to oversee the work of several
hundred employees and contractors. The [c]omplainant's application
did not indicate that he had the necessary skills and background to
effectively work in such a position.
Report of Investigation (ROI) at 372.
With regard to claim (2), the selecting official (SO2) stated in his
affidavit that "complainant has substantial scientific background.
However, he did not to specialize in hydrology. The position of District
Chief is one which managing employees conducting hydrologic science
activities is a key function. [The selectee] had strong experience in
hydrology and also was an experienced manager." ROI at 375.
With regard to claim (3), the selecting official (SO3) stated in his
affidavit that "complainant has substantial scientific background.
However, he did not seem to have much in the way of management experience.
This is an essential skill needed to perform this job. Accordingly,
I do not believe he was among the best candidates." ROI at 380.
With regard to claim (4), the selecting official (SO4) stated "What
I remember was that [complainant] did not have much or any experience
managing Federal government organizations. I believe that the person
filling Center Director position needed to have considerable management
experience and/in particular, supervising a Federal staff would be
a plus." ROI at 384.
With regard to claim (5), a panel member (PM5), who was also on the
selection panel for claim (3) and (6), stated that "we were looking for
candidates once again who had experience in the areas of science that
were the focus of the position (such as a [sic] ecology in this case) and
also the management skills needed to perform the job. The panel reviewed
the applications that were submitted in response to the announcements but
did not find sufficient adequate candidates." ROI at 392. As a result,
no selection was made with regard to this position.
With regard to claim (6), the selecting official (SO6) stated that
complainant was not recommended by the selection panel. Specifically,
SO6 stated in his affidavit that "complainant has substantial scientific
background. He seemed to have a lot of experience in the international
area. However, his work history was a little spotty. For example,
I noted that he worked for the Forest Service for less than a year.
In addition, the [c]omplainant seemed to have no experience managing
large operations. This is a critical part of this position."
We find that complainant failed to adduce any evidence to show that the
agency's articulated reasons were a pretext for age discrimination.
In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), the Supreme Court
held that to infer evidence of pretext from comparative qualifications,
complainant must show: (1) that the disparities between the successful
applicant's and [her/his] own qualifications were "of such weight
and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the
[complainant]" (Cooper v. Southern Co., 390 F.3d 695, 732 (2004)); (2)
that [complainant's] qualifications are 'clearly superior' to those of
the selectee (Raad v. Fairbanks North Star Borough School Dist., 323 F.3d
1185, 1194 (9th Cir. 2003)); or (3) that "a reasonable employer would
have found the [complainant] to be significantly better qualified for
the job," along with other evidence (Aka v. Washington Hospital Center,
156 F.3d 1284, 1294 (C.A.D.C. 1998) (en banc)). We find that complainant
failed to proffer any evidence to show that his qualifications were of
such quality that no reasonable person could have chosen the selectees for
the positions over complainant. Complainant contends that it is illegal
for the SOs to give more weight to managerial experience in the federal
government than to "more suitable experience outside the civil service."
However, we disagree with complainant's contentions that such practices
are necessarily unlawful under the ADEA. An employer has even greater
flexibility in filling a management position due to the nature of such
a position. Wren v. Gould, 80 F.2d 493, 502 (6th Cir. 1987). Moreover,
even if such a criterion was not explicit in the vacancy announcements,
the agency appropriately considered the candidates pertinent managerial
experience for these supervisory positions.3 Since we find that
complainant failed to show that the agency's proffered reasons were
a pretext for age discrimination, we find that complainant failed to
establish that a genuine issue of material fact such that a hearing is
warranted.
Accordingly, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we affirm
the agency's FAD adopting the AJ's finding of no discrimination.
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
____03-13-2008______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that in Smith, et al., v. City of Jackson, Mississippi, 544
U.S. __ ; 125 S.Ct. 1536 (2005), the Supreme Court held that the ADEA
does authorize recovery in disparate impact cases comparable to Griggs
v. Duke Power, 401 U.S. 424 (1971).
3 Complainant also argues that the SOs engaged in nepotism; however,
the Commission notes that claims that allege nepotism are not within the
purview of EEO statutes. See Miranda v. United States Postal Service,
EEOC Request No. 05930130 (July 22, 1993) (noting that nepotism does not
fall within the purview of Title VII); see also McClinton v. Department
of the Air Force, EEOC Request No. 05921032 (May 6, 1993) (finding that
employment decisions based on favoritism are not in violation of the ADEA,
as long as they are also not premised on age).
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0120064636
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064636