0120083655
01-13-2010
Joe Kissentaner, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Joe Kissentaner,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120083655
Hearing No. 450200800161X
Agency No. 07088
DECISION
On August 20, 2008, complainant filed an appeal from the agency's August 15, 2008 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and 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 for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant worked for the agency as a Motor Vehicle Operator from October 1988 until July 2004, when due to carpal tunnel syndrome, he was permanently, medically limited to driving no more than one hour per day. Consequently he was reassigned to perform clerical duties at the agency's Distribution Center in Waco, Texas. Complainant retired in February 2008.
When working as a Motor Vehicle Operator, complainant received above average performance appraisals. However, after complainant's reassignment, his appraisals reflected that he did not demonstrate potential for promotion. In addition, after his reassignment, he allowed his Commercial Drivers License to lapse.
When his former boss retired in September 2004, complainant applied for the position of Motor Vehicle Operator Foreman. When he was not selected, he filed a formal EEO complaint alleging discrimination on the bases of race, age and disability. An Administrative Judge (AJ1) from the Commission's Dallas District Office issued a decision without a hearing on that complaint, holding that because complainant was technically unqualified for the position and because he failed to ask for reasonable accommodation, he could not prove that he was qualified for the job and thus failed to establish a prima facie case of discrimination. Complainant's untimely appeal of that finding was denied. See EEOC Appeal No. 0120071187 (May 22, 2007) and EEOC Request No. 0520070608 (July 11, 2007).
Complainant again applied for the same position and was not selected in June 2007. On July 28, 2007, complainant filed the instant formal EEO complaint alleging discrimination on the bases of race (black) and age (70). Complainant timely requested a hearing, and another AJ (AJ2) from the Commission's Dallas District Office issued a decision without a hearing in the agency's favor. However, unlike before AJ1, complainant was this time represented by counsel, and the parties engaged in significant discovery before AJ2 granted the agency's motion for summary judgment. In addition, AJ2 ruled on two motions to amend the formal complaint. AJ2 denied both motions, finding that the first motion requested the addition of claims that were not like or related to the non-selection and that the second motion requested the addition of a settlement breach claim where there was no persuasive evidence that the settlement agreement even existed.1
In her decision on the merits, AJ2 found that at the time he applied, complainant did not have one of the minimum qualifications for the position, namely, a valid Commercial Drivers License. AJ2 also found that his most recent performance appraisal as a Logistics Assistant stated that he was not recommended for promotion. Consequently, AJ2 concluded that complainant was not qualified for the position and thus failed to establish a prima facie case of discrimination. The agency subsequently issued a final order adopting the AJ's finding. This appeal followed.
CONTENTIONS ON APPEAL
Complainant appears to have filed this appeal without the assistance of counsel. Complainant attaches several of the documents generated during discovery, including the agency's motion for summary judgment. However, he did not include an argument in support of this appeal, nor did the agency respond.
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 in dispute. 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. 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.
AJ2 concluded that complainant did not proffer enough evidence to support a prima facie case of race or age discrimination. In essence, AJ2 found that complainant failed to present facts that, if unexplained, could lead a reasonable fact finder to conclude that complainant's race or his age was a factor in the non-selection. Complainant argued that his lapsed Commercial Drivers License should not operate to exclude him from consideration because it could be renewed. Complainant also argued that rather than considering his recent performance appraisals where he was doing clerical work, the agency should have considered his performance appraisals where he was a Motor Vehicle Operator, in addition to the years of experience he had in that position.
AJ2 rejected these arguments. AJ2 found that complainant failed to prove he was treated less favorably than any of the individuals who applied for the position and like complainant, had received recent performance appraisals with "do not promote" recommendations or had allowed their Commercial Drivers Licenses to lapse. AJ2 concluded that there was no other evidence to suggest that these were not the real reasons for complainant's non selection.
Upon review of the record, we find that complainant's basic argument is that he should be allowed to renew a lapsed license and that he be given the advantage of having four to five year old performance appraisals considered over the most recent one; and that the agency's failure to accord him such treatment is evidence of race and age discrimination. The Commission disagrees. We discern no basis to disturb the AJ's conclusion that complainant failed to meet the qualifications for the Foreman position when he applied in 2007. Consequently, we conclude that the issuance of a decision without a hearing was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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
January 13, 2010
__________________
Date
1 Complainant alleged that he entered into a settlement agreement in 2003 where the agency agreed to "consider" him for a management position in the transportation department if one became available. Complainant insists that he never received a copy of the agreement. A union representative submitted an affidavit stating that she attended the mediation that gave rise to it. However, the agency contends that no such agreement existed. The agency acknowledges an August 2004 agreement that resolved pay issues arising from a complaint brought by complainant alleging that the agency should have created a job for him rather than reassigning him to clerical duties. There is nothing in the 2004 agreement consistent with complainant's claims that the agency promised to consider him for a management position.
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0120083655
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013