0120063842
11-29-2007
Edward W. Donnelly, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Edward W. Donnelly,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01200638421
Hearing No. 310-2004-00234X
Agency No. LLM-04-022
DECISION
On June 5, 2006, complainant filed an appeal from the agency's April 18,
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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Material Handler, Wage Grade (WG) 5 at the Bureau of Land Management,
Tamel Track Facility Warehouse, BLM state office in Anchorage, Alaska.
The record reflects that, in the summer of 2003, complainant's supervisor,
the responding management official (RMO), temporarily detailed another
employee to the position of Motor Vehicle Operator, WG-8, for 120 days.
Complainant alleged that, in the past, complainant did most of the
driving as needed at the facility, and he immediately complained to RMO
about his nonselection. During the summer of 2003, RMO also submitted
a position classification request to the agency's Human Resources
Office requesting a reclassification of the Motor Vehicle Operators
position to a WG-8 position, with the intention of placing all of the
WG-5 Material Handlers, including complainant, into WG-8 Motor Vehicle
Operator positions. The Human Resources Specialist who reviewed the
request determined that the duties of the Motor Vehicle Operator position
could not support a position upgrade to the WG-8 level, finding that
the position description only warranted an upgrade to the WG-7 level.
On December 28, 2003, complainant and all of the other WG-5 Material
Handlers were promoted to WG-7 Motor Vehicle Handler positions, and the
WG-8 Motor Vehicle Handler position was abolished at that time.
On February 1, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of age (D.O.B. 11/22/47) when:
(1) In the summer of 2003, complainant was not permanently promoted to
the position of Motor Vehicle Operator, WG-5703-8; and
(2) Effective December 28, 2003, all WG-5 Material Handlers were promoted
to WG-7 Motor Vehicle Operators, and the WG-8 position was abolished.
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 the
complainant's objections, issued a decision without a hearing on March
2, 2006. The AJ determined that complainant failed to establish a prima
facie case of age discrimination.2 The AJ further found that, even if
complainant had established a prima facie case of age discrimination,
he failed to establish that the agency's legitimate, nondiscriminatory
reasons for its actions were a pretext for unlawful age discrimination.
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.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he was effectively working in the
WG-8 Motor Vehicle Operator position for over ten years and reiterates
that he was not promoted to the WG-8 position because of his age.
Complainant repeats arguments he made below and urges the Commission to
grant his request for a hearing. In response to the appeal, the agency
requests that we affirm the agency's final action.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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").
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).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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).
Under the ADEA, it is "unlawful for an employer... to fail or refuse to
hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age."
29 U.S.C. � 623(a)(1). When a complainant alleges that he has been
disparately treated by the employing agency as a result of unlawful age
discrimination, "liability depends on whether the protected trait (under
the ADEA, age) actually motivated the employer's decision." Reeves,
530 U.S. at 141 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610
(1993)). "That is, [complainant's] age must have actually played a
role in the employer's decision making process and had a determinative
influence on the outcome." Id.
Upon review, we concur with the AJ's determination that complainant
failed to establish a prima facie case of age discrimination. Although
complainant established that he was over forty years old (56 years
old during the relevant time period), he failed to offer any evidence
that he was treated less favorably than similarly situated employees
outside his protected group. The record reflects that the selectee who
was placed on detail to the WG-8 Motor Vehicle Operator position was 52
years old during the relevant time period, and RMO testified that all of
the employees who were promoted from the WG-5 Material Handler positions
to WG-7 Motor Vehicle Operator positions along with the complainant were
over forty years old. Furthermore, we find that complainant failed
to present any evidence that the agency's actions were motivated by
discriminatory animus towards his age.
Assuming arguendo that complainant established a prima facie case of age
discrimination, we agree with the AJ's determination that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
RMO submitted a statement in the record that he decided to detail
the selectee into the WG-8 Motor Vehicle Operator position, rather
than complainant, because RMO needed an individual to fill a remote
fueling position, which was a secondary responsibility for the WG-8
position. RMO indicated that remote fueling is a very dangerous task,
and the selectee had the most experience in remote fueling. RMO further
stated that, although complainant was a very good employee, he was not
trained in remote fueling while the selectee was already qualified as a
remote fueler. RMO also stated that the selectee had previously filled
this duty without being compensated for the remote fueling part of his
assigned duties, and allowing the selectee to be detailed into the WG-8
position provided the selectee with some compensation.
With respect to the WG-8 Motor Vehicle Operator position being abolished,
the Human Resources Specialist determined that the Motor Vehicle Operater
position could only support a WG-7 classification due to the infrequent
use of a 40 foot trailer/truck at the facility. The Motor Vehicle
Operator position classification was based on the size of the vehicles
regularly operated at the facility, and the position would only have
qualified for the WG-8 level if the employees regularly drove the 40
foot trailer/truck. Therefore, the WG-5 Material Handlers could only
be reclassified as WG-7 Motor Vehicle Operators, and the WG-8 level
position was abolished.
The complainant now bears the burden of proving by a preponderance of
the evidence that the agency's reasons were a pretext for discrimination.
Complainant can do this directly by showing a discriminatory reason more
likely motivated the agency or indirectly by showing that the agency's
proferred explanation is unworthy of credence. Burdine, 450 U.S. at 256.
We concur with the AJ's determination that complainant failed to provide
any evidence of pretext in the record. Complainant argues that he
should have been selected for the WG-8 Motor Vehicle Operator position
because his driving skills were superior to the selectee's, but he does
not contest the fact that the selectee possessed more remote fueling
experience. The record reflects that complainant and the other WG-7
Motor Vehicle Operators were to receive training in remote fueling in
the summer of 2004. Complainant argues that the WG-5 Material Handler
positions were reclassified to WG-7 Motor Vehicle Operator positions,
and the WG-8 position was abolished, because he complained when he was
not promoted to the WG-8 position. However, RMO and the Human Resources
Specialist stated in the record that RMO had requested a classification
upgrade to the WG-8 Motor Vehicle Operator position for all the WG-5
Material Handlers, including complainant, but this request was ultimately
rejected by Human Resources in favor of a WG-7 Motor Vehicle Operator
classification. Furthermore, we find that the record is devoid of any
evidence that the agency's actions were motivated by discriminatory
animus towards complainant's age.
CONCLUSION
Based on our review of the record, the Commission finds that the issuance
of a decision without a hearing was appropriate in this case because no
genuine issue of material fact is in dispute. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus towards him. We discern no basis to disturb
the AJ's decision.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, the agency's
final order is AFFIRMED.
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
November 29, 2007
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 The AJ's decision and the final agency action stated that complainant
alleged in claim (1) that he was discriminated against based on his age
"when he was not permanently promoted to the position of Motor Vehicle
Operator, WG-5703-8, after serving a temporary 120 day detail." However,
the record is unclear as to whether complainant had been detailed into the
position, and complainant argues on appeal that he was never detailed into
the position. For purposes of this decision, we assume that complainant
was not detailed into the position prior to his non-selection for the
promotion.
??
??
??
??
2
0120063842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120063842