0120070136
01-13-2009
James F. Carey, Complainant, v. Steven Robert Blust, Chairman, Federal Maritime Commission, Agency.
James F. Carey,
Complainant,
v.
Steven Robert Blust,
Chairman,
Federal Maritime Commission,
Agency.
Appeal No. 0120070136
Hearing No. 100-2004-00811X
Agency No. FMC0401
DECISION
On October 10, 2006, complainant filed an appeal from the agency's
September 12, 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 VACATES the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as an Area Representative, Bureau of Enforcement in Washington, D.C.
On March 16, 2004, complainant filed the instant EEO complaint. Therein,
complainant claimed that he was discriminated against on the basis of age
(61) when he was denied Veterans' Preference when he was not selected
for the position of Assistant Secretary, G-301-14/15.
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 agency filed a motion for a decision without
a hearing on April 5, 2005, and complainant filed an "Opposition to
Agency's Motion for Summary Judgment and Complainant's Cross Motion for
a Summary Judgment" on April 22, 2005. The AJ issued a decision without
a hearing on August 29, 2006 in favor of the agency.
In his decision, the AJ first indicated that complainant's April 22, 2005
filing was not timely. The AJ found that complainant failed to show good
cause why it should nevertheless be considered. The AJ then found that
complainant failed to demonstrate that he was treated less favorably
than other similarly situated employees because of his age.1 The AJ
further found that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the Selecting Official (59
years old) stated that he chose the selectee (38 years old) instead of
complainant because "[her] application and interview, . . . indicated
that she possesses experience and background that demonstrate her
abilities to meet or exceed the quality ranking factors set forth in the
vacancy announcement. [Selectee], a Certified SES Candidate, presented
credentials well beyond those presented by [complainant]."
The AJ also addressed complainant's assertion that, during the interview
process, the Selecting Official inquired whether complainant would be
retiring soon. The AJ noted, however, that the Selecting Official
provided a different rendition of what actually transpired. The AJ
further found that with respect to the performance evaluations under
consideration, complainant was rated "highly successful" and the selectee
was rated "outstanding." The AJ addressed complainant's assertion that
the selectee was not qualified for the subject position, especially
when compared to his qualifications. The AJ noted that complainant's
perception of his own work performance is not relevant in the analysis.
The AJ additionally found that complainant did not show that his
qualifications were observably superior to the qualifications of the
candidate selected for the subject vacancy. The AJ found that there
were no genuine issues of material fact, and concluded with a finding
of no 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.
On appeal, complainant's primary argument is that his "Opposition to
Agency's Motion for Summary Judgment and Complainant's Cross Motion for
a Summary Judgment," filed on April 22, 2005, was improperly deemed by
the AJ as untimely filed. In reply, the agency initially contends that
even assuming the Opposition was timely filed, it is clear that the AJ
did in fact consider the Opposition because the AJ specifically cited to
it in the decision. The agency additionally contends that complainant
has failed to make any substantive argument on appeal as to why the AJ's
decision was incorrect, nor has complainant demonstrated that the record
contains a genuine issue of material fact which requires resolution at
a hearing.
As an initial matter we note that, as this is an appeal from a FAD 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).
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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for
strident cross-examination and summary judgment on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995). "Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims." Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). The hearing process is intended to be an extension of
the investigative process, designed to "ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses." See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
Judgment as a matter of law should not have been granted in this
case. The record contains a genuine issue which must be resolved at
trial. Specifically, complainant asserted during the investigation
of his complaint that two individuals whom he identified, had advised
him that a "young female" was going to be selected for the Assistant
Secretary position. Complainant further stated that just before
the interview ended, the Selecting Official asked him the question:
"How old are you?;" and that the Selecting Official then rephrased the
question as an inquiry into how long complainant expected to work before
retiring. Complainant asserted that the Selecting Official then stated
that complainant was "an old fart" like himself (the Selecting Official)
and that he "would probably be gone within five years." Complainant also
asserted his belief that the selection decision had already been made
at the time he was interviewed (an assertion which the agency argues
would be evidence that age was not a factor in the decision).
In his decision, the AJ addressed these alleged age-based comments,
noting that the Selecting Official provided a different description
of what he had said to complainant. The AJ appears to have improperly
credited the Selecting Official's version of what transpired.2
In ruling on a Motion for a Decision Without a Hearing, the evidence
of the non-moving party must be believed and all justifiable inferences
must be drawn in the non-moving party's favor. Therefore, assuming the
age-based comments were made, a reasonable fact-finder could conclude that
the Selecting Official believed that complainant should not be selected
because of his protected status.3 This case contains conflicting evidence
as to what the real motivation was for not selecting complainant.
In order to resolve this conflict, the fact finder must determine
whether the agency's explanation is more credible than complainant's.4
Accordingly, in this case, issuance of a decision without a hearing was
not warranted under 29 C.F.R. � 1614.109(g). The Commission VACATES the
agency's final order and REMANDS the matter for a hearing in accordance
with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Washington Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Z0408)
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
January 13, 2009
__________________
Date
1 The Commission notes that it is not necessary for complainant to rely
strictly on comparative evidence in order to establish an inference of
discriminatory motivation necessary to support a prima facie case. See
Means v. Department of Housing and Urban Development, EEOC Appeal
No. 01996893 (December 21, 2001).
2 The agency itself stated in its Motion for Summary Judgment that the
Selecting Official "denies Complainant's account of the conversation,
but for the purposes of the Motion for Summary Judgment we will assume
this account as undisputed." Agency Motion at 6.
3 The Commission notes that in a non-selection case, pretext may
be demonstrated in a number of ways, and showing that complainant's
qualifications were not "observably superior" to those of the selectee,
is merely one way of doing so. Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981).
4 If the fact finder finds that both a legal and an illegal motivation
influenced the selection, s/he should apply a mixed motive analysis.
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0120070136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036