Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120120286 (E.E.O.C. Mar. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120120286

Hearing No. 531-2010-00046X

Agency No. OCO-2007-2352-SSA

DECISION

Complainant filed an appeal concerning her 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. When Complainant did not receive a
final decision from the Agency within 40 days of receipt, Complainant filed her appeal from
the July 15, 2011 Decision issued by the Administrative Judge (AJ). There is no decision in
the record from the Agency. Therefore, the decision of the AJ finding no discrimination
became the decision of the Agency. For the following reasons, the Commission AFFIRMS the
Agency’s decision.

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 Disability Operations, in Baltimore, Maryland.
On February 28, 2008, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of age (59) when:

Complainant was not selected for the Legal Administrative Specialist (Benefit
Technician Examiner) position advertised under Vacancy Announcement Numbers
(VAN) B-3408) which closed in June 2007.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections,
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the AJ assigned to the case granted the Agency’s March 19, 2010 Motion for a decision
without a hearing and issued a decision without a hearing on July 15, 2011.

In his Decision, the AJ found that none of the material facts remained in dispute. Specifically,
the undisputed evidence shows that Complainant and 641 others applied for the identified
position. Complainant was found qualified, but was not among the 190 applicants whose
scores after the rating and ranking process placed their names upon the best qualified list. The
AJ observed no dispute that 33 candidates were selected from the best qualified list and that of
those, 11 were less than five years younger than Complainant. Three selected candidates, the
AJ noted, were older than Complainant at the time of the selection process. The AJ further
found no dispute that Complainant’s application received a score of 20, while the cut-off score
for the best qualified list was 82.

The AJ considered Complainant’s admission that she had not updated her application since
2004, and that maybe her education and skills, rather than her age, caused her to not be
selected for the identified position. The AJ found that Complainant did not show that she had
the minimum qualifications necessary to be placed upon the best qualified list. The AJ
concluded that Complainant did not show that the Agency’s scoring process was a 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 her to
discrimination as alleged became the Agency’s decision pursuant to 29 C.F.R. § 1614.109(i).
The instant appeal followed.

ANALYSIS AND FINDINGS

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
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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 action, we find the AJ properly issued his Decision without a hearing. We find
no dispute in the evidence concerning the scores assigned by the promotion process to the
many applications the Agency received for the subject vacancy announcement. We find the
evidence shows that Complainant’s application scored a “20” and that this score was not high
enough for her name to be considered among those included in the list of best qualified
applicants. We find no dispute regarding the manner in which the scores were assigned or the
facts surrounding the ages of the successful candidates including that some of the selectees
were older than Complainant. We find Complainant did not present evidence that the
Agency’s promotion process, applied in this action, was either designed or manipulated to
select younger candidates nor any evidence that Complainant’s age played any role in the
selection process.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s decision finding no
discrimination.

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.
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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
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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

March 20, 2013
Date