0120082542
11-07-2008
Edward H. Byers, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Edward H. Byers,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120082542
Hearing No. 430-2007-00444X
Agency No. HS-07-TSA-000931
DECISION
On May 12, 2008, complainant filed an appeal from an EEOC Administrative
Judge's dismissal of his hearing request, 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 decision.
BACKGROUND
During the period at issue, complainant worked as a Federal Air Marshal
at the agency's Charlotte Field Office in Charlotte, North Carolina.
On January 22, 2007, complainant filed an EEO complaint. Therein,
complainant claimed that he had been discriminated against on the basis
of age (50) when, on September 30, 2006, he learned he had not been
selected for the position of Supervisory Federal Air Marshal, SV-1801-J,
under vacancy announcement # FAMS-ALL-06-0030.
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 requested
a hearing. However, on February 27, 2008, the AJ dismissed complainant's
hearing request on the grounds that complainant's attorney had failed
to submit the Pre-Hearing Report as required in the October 23, 2007
Scheduling Notice and Order. The AJ remanded the complaint to the agency
to issue a final agency decision (FAD) on the merits of complainant's
complaint. When the agency did not issue an order implementing the AJ's
decision within 40 days of the AJ's decision, and did not issue a FAD
within 60 days of the AJ's decision becoming final due to the agency's
inaction, the complainant's attorney filed the instant appeal with the
Commission on May 12, 2008, arguing that the dismissal of complainant's
hearing request was too extreme a sanction for the failure to submit
the Pre-hearing Report.
Belatedly, on August 12, 2008, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3);
EEOC Management Directive 110 (EEO MD-110), Chapter 7, pp. 9-10 (1999).
Such sanctions may include an adverse inference that the requested
information would have reflected unfavorably on the party refusing to
provide the requested information, exclusion of other evidence offered
by the party refusing to provide the requested information, issuance of
a decision fully or partially in favor of the opposing party, or other
actions as appropriate. 29 C.F.R. � 1614.109(f)(3). After a careful
review of the record, the Commission finds that the AJ did not abuse his
discretion by dismissing complainant's request for a hearing. The record
establishes that the Scheduling Notice and Order notified parties that
their pre-hearing submissions were due on or before February 13, 2008.
Further, the Scheduling Notice and Order states that failure to submit a
Pre-hearing Report may result in dismissal of the complaint or request
for hearing, or other sanctions as deemed appropriate by the AJ.
Complainant was therefore aware that his failure to timely submit a
Pre-hearing Report could result in sanctions.
Complainant's attorney argued on appeal that he had made a Motion on
November 13, 2007 to suspend the requirements of the Scheduling Notice
and Order, and to enlarge the discovery period by 30 days, due to his
own health emergency and his anticipation that he would be unable to
meet the requirements of the Scheduling Notice and Order for the 30-day
period of November 14, 2007 - December 12, 2007. The AJ did not respond
to complainant's attorney's motion, and in the absence of an explicit
extension of time to complete discovery, complainant's attorney argued
that he was justified in not readying the case for hearing.
The agency replies in its opposition brief that complainant's attorney
had returned to work long before the expiration of the discovery period
and was not incapacitated at the time the Pre-Hearing Report was due.
We find that the AJ did not abuse his discretion by dismissing
complainant's request for a hearing as a sanction for the failure to
comply with the requirement of the Scheduling Notice and Order and the
failure to submit a Pre-Hearing Report. In the absence of a revised
Scheduling Notice and Order issued by the AJ in response to his Motion of
November 13, 2007 to extend the discovery period, complainant's attorney
should have assumed that his Motion was denied.1 As the sanction
of dismissing the hearing request was within the AJ's discretion, he
properly then remanded the case to the agency to issue a decision on
the record.2
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEO MD-110,
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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally 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 and 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).
The agency, in its August 12, 2008 FAD, articulated a legitimate,
nondiscriminatory reason for complainant's non-selection for the position
of Supervisory Federal Air Marshal. Under the vacancy announcement, there
were 23 positions available at multiple locations and applicants would be
considered for only those locations they specified. Complainant wished
to be considered for the Charlotte Field Office position. There were
124 applicants for the Charlotte position, and only one applicant was
selected (the selectee) after a process of rating and ranking by several
groups of agency officials, with recommendations being made of the top
candidates at each stage of the review process. Those recommendations
would then be reviewed by the next set of officials and the list further
narrowed, until a selection was made. The selectee (over 40, but nine
years younger than complainant), was determined to be the most qualified
candidate for the position.
Complainant stated that he was the most qualified candidate for the
position and argued that his qualifications were superior to those of
the selectee. After a review of the record, we find that complainant
has not shown that his age was the cause of his non-selection for the
position, and that he has failed to prove that the agency's reasons for
choosing the selectee were mere pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we affirm the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 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
11-7-08
__________________
Date
1 We note that, generally, an AJ should rule expeditiously on Motions
made by the parties during the discovery period, in order to clarify
disputes and keep the parties on track to have cases prepared by the
anticipated hearing date.
2 We further note that the agency should have issued a decision within
the timeframe in 29 C.F.R. � 1614.110(a), within forty (40) days of
receipt of the AJ's decision.
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0120082542
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082542