07a30025
08-08-2005
John C. Carver, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
John C. Carver v. Department of Justice
07A30025
08-08-05
.
John C. Carver,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A30025
Agency No. A-97-1004
Hearing No. 380-98-8018X
DECISION
Following its November 8, 2002 final order, the agency filed a timely
appeal that the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of his age (46) when he was not hired
as an Assistant United States Attorney (AUSA) in the Criminal Division
of the Office of the United States Attorney for the Western District
of Washington on or about July 31, 1996. For the following reasons,
the Commission REVERSES the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the AJ's factual findings are
supported by substantial evidence in the record and the AJ's conclusions
of law are correct.
BACKGROUND
Complainant maintained that his age was the determining factor in the
selection decision because the selectee, C-1, was 13 years younger than
he and did not have his experience with the U.S. Attorney's Office.
Complainant also alleged that A-1, the United States Attorney for the
Western District of Washington and the selecting official, made certain
remarks which he felt indicated that she harbored a discriminatory
animus against older applicants. According to the record, complainant,
who had worked in the office for about nine years, resigned his AUSA
position with the Fraud Unit in December 1994. Before his resignation,
complainant and A-1, who became the U.S. Attorney in December 1993,
had worked together for about a year. In April 1996, complainant met
with A-1 and informed her that he was interested in returning to the
office.<1> When complainant learned of a vacancy, in June 1996, he
notified A-1 of his interest in the position.
The incumbent of the position would work out of the Tacoma office and
their duties would be split between the Fraud and Drug Units. A hiring
committee, composed of seven representatives from the various divisions,
reviewed applications from about 100 candidates and narrowed the list to
five candidates, one of whom was the complainant. The seven members of
the hiring committee and A-1 interviewed the five finalist in July 1996.
After interviewing the complainant, A-1 maintained that she removed him
from further consideration, in her mind, because she was dissatisfied
with his interview. According to the record, there was no unanimous
recommendation by the hiring committee. Apparently, four or five
members recommended complainant while a few others recommended C-1,
a local state prosecutor who, pursuant to a special program, had been
working with the agency's Tacoma office. The ultimate decision to select
C-1 was made by A-1. Upon learning that A-1 had hired C-1, complainant
filed the present complaint.
Following an investigation, complainant requested an administrative
hearing before an AJ. After the hearing, the AJ issued a decision
finding that complainant had met his burden of demonstrating that the
reasons articulated by the agency for his nonselection were a pretext
for age discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review. Accordingly, we will review the AJ's findings
under these standards.
Complainant's claim of discrimination based on age is a claim of
disparate treatment that must be examined under the three-part analysis
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)(requiring
a showing that age was a determinative factor, in the sense that "but
for" age, complainant would not have been subject to the adverse action
at issue). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. 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). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find complainant established a prima facie case of age discrimination.
In an ADEA case, to establish a prima facie case of age discrimination,
the complainant must show that he was over 40 years of age, a class
protected by the ADEA, that he was subjected to an adverse employment
action, and that he was treated less favorably than other similarly
situated employees younger than himself, i.e., he was accorded treatment
different from that given to persons who are considerably younger than he.
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).
Here, the record indicates that C-1 is 13 years younger than complainant.
Like the AJ, we find that the reasons given by the agency for not
selecting complainant were a pretext to mask discrimination based on age.
Essentially, the agency maintained that complainant was not selected
because of his performance during the interview with A-1. The record
indicates that there were no witnesses present when A-1 interviewed
complainant. A-1 stated that complainant had a poor attitude and that he
seemed to take it for granted that he would be selected. According to A-1,
she was �shocked� by complainant's performance at the interview. She also
stated, on several occasions during the hearing, that complainant's
interview performance, was the decisive factor in her decision.
The AJ found A-1's testimony that complainant's interview was a major
consideration in her decision not to select him was �unbelievable.�
The AJ noted that complainant was �very much a known commodity� when he
interviewed for the position. He had worked several years as an AUSA.
He had worked for several years with members of the hiring committee,
and for nearly an entire year for A-1. The AJ also noted the testimony
of several witnesses that their interviews with complainant were less
formal and more collegial than those of the other interviewees.<2>
We find that there is substantial evidence in the record to support the
AJ's determination that A-1's testimony, that complainant's interview
performance was the decisive factor in her decision, was not credible. In
this regard, we note the unrebutted testimony of B-3. B-3, a Washington
State Judge, testified at the hearing that, in the Summer of 1996, he was
a Senior Assistant Attorney General with the Washington State Attorney
General's Office (AGO). Complainant had also applied for a job with
the AGO during the period that he was being considered for the position
at issue. B-3 was tasked with contacting references for complainant.
According to B-3, he contacted A-1 in order to discuss complainant.
Because he was aware that complainant was seeking an AUSA position,
B-3 asked A-1 if she was going to offer complainant the position.
B-3 stated that A-1 was �very straight forward� in acknowledging that
she would not be rehiring complainant. The reason that she gave was
that, �There were enough people in the [office] with [complainant's]
level of experience.� At the hearing, B-3 testified that the conversation
took place in the Summer of 1996, but he could not be more specific.<3>
Therefore, it is reasonable to find, contrary to the agency's assertion
otherwise, that complainant's interview was not the �decisive� factor in
his non-selection because the decision to not hire him was made before
his interview.
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 age actually motivated the employer's decision.�
(Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(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. Here, the AJ, in addition to finding that A-1's reason for
not selecting complainant were pretextual, also found that he was not
selected because he was being penalized by A-1 for his age, his length
of experience, which was connected to his age, and for his association
with other staff attorneys of a similar age and level of experience.
We find that the record contains substantial evidence to support that
AJ's determination that complainant's age was the motivating factor in his
non-selection. In this regard, we note A-1's assertion, throughout the
selection process, that she wanted to diversify the workplace by creating
a �junior varsity� category of attorneys, who would come into the job
with perhaps less experience, but would obtain it while on the staff.
The AJ noted A-1's description of the Fraud Unit as a group of employees
with lengthy tenures, who were too slow, and had done their work in a
particular way for a long time and did not want to change how they did
things. We also note that A-1, as part of her �junior varsity� concept,
stated that she wanted to hire attorneys who were not close to retirement.
Hearing Transcript at page 236. The AJ found that A-1's description of
the Fraud Unit amounted to �a virtual list of common stereotypes of older
workers,� i.e., the employees are too slow, very set in their ways, have
very lengthy tenures and do things their way. AJ Decision at page 33.
The AJ also found that:
It's clear from [A-1's] testimony that one of her solutions for the
perceived problem of the Fraud Unit culture was to bring younger,
less experienced attorneys into the unit, the �junior varsity,� as she
characterized them. It's also clear that [C-1] falls into that �junior
varsity� category. He is thirteen years younger than [complainant],
he was considerably less experienced overall and specifically less
experienced in federal criminal fraud prosecution than was [complainant]
and, presumably, he was less set in his ways with regard to doing
such work.
Id.
In finding discrimination, the AJ, among other things, ordered the
agency to:
1) appoint complainant to the position of Assistant United States Attorney
for the Western District of Washington, effective as of the date that
he would have begun working had he not been discriminated against; and
2) pay complainant back pay and other benefits that he would have
received had he not been discriminated against.
On appeal, the agency argued that the interview was the determinative
factor in the selection decision. According to A-1, complainant indicated
that: (1) he was not interested in doing drug cases, but would do so
if he were required; (2) he would not move to Tacoma, and did not like
the idea of commuting from his Seattle home to Tacoma; (3) he preferred
working for the U.S. Attorney's office rather than the state attorney
general's office because the pay was better; and (4) he would find it a
�shock� to have to work 40 hours per week.<4> The agency also offered
the testimony of four members of the hiring committee who also felt that
complainant was not enthusiastic about various aspects of the position.
Although complainant did not testify at the hearing, he did provide a
sworn statement during the agency's investigation.<5> The AJ found that
complainant's written statement and A-1's hearing testimony were similar
in many aspects; however, to the extent that there was a conflict about
the interview, the AJ �credited� complainant's testimony. Consequently,
the AJ believed complainant when he indicated that his comments about
the commute to Tacoma, working on drug cases and the differences in pay
rates between federal and state positions were not the subject of any
significant or serious discussions during the interview.<6>
The agency also argued on appeal that there was insufficient evidence in
the record to prove that complainant's age had a determinative influence
on the outcome of selection. In this regard, the agency maintained that
A-1 comments about creating a �junior varsity� were not related to age,
but experience, a factor that is permissible to consider when making an
employment decision.
Finally, the agency argued that there was insufficient evidence to
support the AJ's factual findings involving credibility. Specifically,
the agency argued that the AJ's credibility determinations should not be
accorded deference because they were not based on his observation of the
demeanor or conduct of A-1 and other witness, but on the reasonableness
of the testimony that was given. Moreover, the agency noted that because
complainant did not testify at the hearing, the AJ should not have
�credited� his testimony over A-1's.
With regard to the agency's first contention, the record contains
substantial evidence to support the AJ's factual findings. This evidence
consists of the testimony of B-3 indicating that complainant's interview
was not the determinative factor in the process. Notwithstanding the
agency's arguments, we find that a reasonable person could, based on the
same evidence, reach the same conclusion as did the AJ. Our regulations
require that post-hearing factual findings by an Administrative Judge
be upheld if supported by substantial evidence in the record.
With regard to the agency's second contention, we agree that the agency
may take an employee's level of experience into consideration when
making a personnel decision. In Hazen Paper Co. at 611, the Supreme
Court held that, �[b]ecause age and years of service are analytically
distinct, an employer can take account of one while ignoring the other,
and thus it is incorrect to say that a decision based on years of service
is necessarily �aged based.' Id. In the present case, however, we find
that there is substantial evidence in the record to support the AJ's
determination that A-1 did not select complainant because of his age.
In this regard, we note her testimony that she wanted to hire attorneys
who were not close to retirement. She accomplished this by hiring an
individual who was thirteen years younger than complainant. We also
note that, notwithstanding A-1's stated desire to diversify the office,
she selected an individual who, like complainant, was a white male,<7>
and allowed C-1 to take a two year assignment to Puerto Rico with the
Department of Justice.<8> Again, we find that, because a reasonable
person could, based on the same evidence, reach the same conclusion as
did the AJ, the AJ's findings should be upheld.
With regard to the agency's third contention, we agree that an
Administrative Judge's credibility determinations are not entitled to
deference when they are not based the judge's first-hand observations of
the demeanor and conduct of the witness at the hearing. Gilbert v. EEOC,
07A30049 (August 11, 2004). In the present case, however, we find
that the AJ's determination that A-1's testimony was �unbelievable,�
is consistent with the evidence of record. In this regard, we note
the unrebutted testimony of B-3 indicating that the decision to not
select complainant was made prior to the interview. Therefore, based
on the totality of the evidence, we find that the AJ's credibility
determinations are supported by the record. Also, we do not find
that the AJ erred by �crediting� complainant's investigation statement
over the hearing testimony of A-1 with regard to their descriptions of
complainant's interview. This is consistent with the AJ's determination,
based on a review of the �entire evidentiary record,�that �the legitimate,
nondiscriminatory reasons articulated by the agency for not selecting
complainant for this position are a pretext for age discrimination.�
AJ Decision at page 25.<9>
CONCLUSION
After a careful review of the record, including evidence not specifically
discussed in this decision, we find that the agency failed to provided
an adequate basis for disturbing the AJ's finding of discrimination.
The AJ's determination that the agency's reasons for not selecting
complainant were a pretext for age discrimination is supported by
substantial evidence in the record.<10> The agency's final order is
REVERSED. The agency will take corrective action in accordance with the
ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. Within thirty (30) days of the date that this decision becomes
final, the agency shall offer to place complainant in the position of
Assistant United States Attorney in the Criminal Division of the Office
of the United States Attorney for the Western District of Washington,
or a substantially similar position, effective as of the date that he
would have started had he been selected in 1996. Complainant shall be
given a minimum of fifteen days from receipt of the offer of placement
within which to accept or decline the offer. Failure to accept the offer
within the time period set by the agency will be considered a rejection
of the offer, unless complainant can show that circumstances beyond his
control prevented a response within the time limit.
2. The agency shall determine the appropriate amount of back pay,
including interest and all other benefits, due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant shall cooperate
in the agency's efforts to compute the amount of back pay and benefits
due and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
other benefits, the agency shall issue a check to the complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall provide at least eight (8) hours of EEO-related
training to A-1, if she is still employed with the agency, regarding
her responsibilities under the Age Discrimination in Employment Act to
eliminate discrimination in the federal workplace, especially with regard
to selection decisions. The agency is advised that the Commission does
not consider training to be a disciplinary matter.
4. The agency shall consider appropriate disciplinary action against
A-1, and report its decision to the Commission. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
Copies of all submissions to the Commission shall be sent to the
complainant.
POSTING ORDER (G0900)
The agency is ordered to post, at its Office of the United States Attorney
for the Western District of Washington, copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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 (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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
____08-08-05______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the
United States Equal Employment Opportunity Commission dated
which found that a violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., has occurred
at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Office of the United States Attorney for the Western District of
Washington supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under the law. The Office of the United States Attorney for the Western
District of Washington was found to have engaged in discrimination based
on age when the employee was not hired for a position. The employee
affected by the Commission's decision will be retroactively placed in
the position and awarded back pay and other benefits. The Office of
the United States Attorney for the Western District of Washington will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all federal
equal employment laws and will not subject employees to discrimination
based on their age.
The Office of the United States Attorney for the Western District
of Washington will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participated in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
1According to complainant, A-1, during this April meeting, told him that
she was �concerned about the number of older experienced attorneys,�
in the Fraud Division. A-1 maintained that she did not use the term
�older,� and that she was only referring to the level of �experience�
and �tenure� in the office.
2The AJ noted the fact that A-1 did not find it necessary to check
complainant's references because everyone knew him and knew of his work.
3Although B-3, at the hearing, could not provide the exact date of his
conversation with A-1, a review of his testimony clearly indicates
that the conversation took place before C-1 was selected. Hearing
Transcript at pages 59 - 68. In this regard, we note that the agency's
representative asked B-3 if it was possible that A-1 was trying to be
�frank and candid� with him, B-3, in order to help complainant so that
there would be no �mis-impressions� about his job prospects. Id at 68.
4The record indicates that complainant was mugged in September 1995,
and suffered a severe closed head injury. He spent several months
recuperating, sleeping as much as 20 hours a day. By January 1996, he
was well enough to take a part-time job as a Special Assistant Attorney
General with the Washington State Attorney General's Office. He worked
15 - 20 hours a week at first until he regained his stamina.
5Complainant represented himself at the hearing.
6In his statement, complainant indicated that there was only a brief
discussion of the drug case portion of the job and the Tacoma location.
He recalled stating that drug cases were not his favorite, since
his expertise was fraud, but that he was willing to do drug cases.
Complainant denied stating that he did not want to work in Tacoma.
According to complainant, he indicated he did not like the idea of the
commute from Seattle, but he was ready to do it. With regard to it
being a shock to work 40 hours a week, complainant stated that both he
and A-1 understood that this was a referring to the lengthy recovery
period that he had undergone. Finally, complainant admitted that, in
response to the question of why he preferred a position with the agency
over the state Attorney General's office, he responded that the salary
and criminal statutes were both better with the Federal government.
7 See Hearing Transcript at page 49.
8According to A-1, C-1's wife wanted to be there for a couple of years.
Hearing Transcript at pages 210 - 211. A-1 was asked how long after
C-1 was hired did he take the assignment in Puerto Rico, but she did not
answer the question. By the time of the hearing, however, C-1 was back
in the office.
9We also note that the agency did not argue on appeal, nor does the record
indicate, that the agency's representative sought to call complainant
as a witness in the agency's case-in-chief. Moreover, we note that, at
the beginning of the hearing, the AJ stated, without objection by the
agency's representative, that �in lieu of his testimony [complainant]
has indicated that he will not testify at the hearing, and will rely on
his testimony already in the record.� Hearing Transcript at page 4.
10Complainant filed a cross-appeal concerning the AJ's denial of his
motion to supplement the record. After the hearing, B-3 was able
to determine that his conversation with A-1 took place in June 1996.
Complainant moved to supplement the record with B-3's affidavit, because
it would show that, prior to the interview, A-1 had already made up her
mind not to hire him. Although the agency did not object, the AJ denied
the motion on the grounds of finality. Because of our decision above,
we find it unnecessary to address complainant's cross-appeal.