01A12002
04-10-2002
John C. Reynolds, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
John C. Reynolds v. Department of Transportation
01A12002
04-10-02
.
John C. Reynolds,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A12002
Agency No. 2-98-2052
Hearing No. 100-AO-7815X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the bases
of race (White), sex (male) and age (over 40) when he was not selected for
the position of Deputy Regional Administrator (DRA) (GS-13/14). For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a GS-12 Railroad Safety Inspector
at the agency's Philadelphia, Pennsylvania facility, filed a formal EEO
complaint with the agency on January 28, 1998, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The record reveals that complainant initially applied for the position
as a status candidate under vacancy announcement number FRA 96-18M.
No selections were made under this vacancy announcement. The position
was readvertised under vacancy announcement FRA 96-25M and complainant
was automatically considered as a status candidate. Complainant did
not submit an additional application for consideration as a non-status
applicant as was required by FRA 96-25M. Complainant was scored for
eligibility at the GS-13 grade level and was rated by a three person
rating panel. Complainant received a score of 23. His score was not
high enough to place him on the Best Qualified List since the cut-off
score for the GS-13 position under the Merit Promotion Program was 36.
Complainant's application was not forwarded to the selecting official.
The cut-off score for the GS-14 position was 28 but since complainant did
not have the time in grade he was not ranked or rated with this group.
Two applicants, a White male over 40 and a White female over 40, were
selected for the position at the GS-14 level.
The AJ concluded that assuming arguendo, that complainant met his
burden of establishing a prima facie case of discrimination, the agency
articulated nondiscriminatory reasons for its actions. The AJ found that
the agency demonstrated that complainant's numerical score of 23 was
not high enough to place him on the Best Qualified list for the GS-13
candidates since the cutoff score for the Best Qualified List was 36.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that there was
no evidence that complainant's race, sex, or age had been considered or
that the rating and ranking process described by the agency was tainted
by discriminatory animus. The agency's final order implemented the
AJ's decision.
On appeal, complainant contends that the AJ erred when he issued a notice
of intent to render a summary judgment sua sponte before the close of
discovery. Complainant maintains that he was denied due process because
of the AJ's actions. Complainant also contends that summary judgment was
inappropriate since there are material facts in dispute, namely that a
lower scoring Black candidate was referred to the selecting official when
he was not and that he established a prima facie case of discrimination.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
With respect to complainant's claim that the AJ erred when he issued
a notice of intent to render a summary judgment sua sponte before the
close of discovery, we note that the record shows that discovery was
ordered to be completed by October 5, 2000. The AJ's first notice
of intent was issued on September 19, 2000 with 15 days to respond.
On or about October 5, 2000, both parties moved for a continuance of the
date to respond to the notice for summary judgment since discovery was
still pending. On November 7, 2000, the AJ denied the parties' motion
and issued a second notice of intent instructing the parties to file
their briefs within 15 days of receipt of the notice. The agency filed
its brief within the prescribed time period. Complainant did not file
his brief until December 12, 2000, and was found to be untimely.<1>
The AJ issued a decision granting the motion for summary judgment on
December 19, 2000, which is well beyond the close of the discovery date.
The Commission finds that since the second notice of intent was not issued
until after the close of discovery, complainant had an opportunity to
make full discovery. We find no evidence in the record that the AJ ever
suspended or suggested a delay in completing discovery. As such, we find
that complainant was not denied due process because of the AJ's actions.
Further, after a careful review of the record, the Commission finds
that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race, sex or age. We discern no basis to disturb the AJ's decision. We
agree that no genuine issues of material facts are in dispute since it
is undisputed that complainant's score was a 23 and the cut-off score
for the GS-13 Best Qualified List was 36. As such, complainant's score
was not sufficient to be forwarded to the selecting official. Further,
the record shows that employees with a score of 36 or more, which
includes the Black candidate identified by complainant, were placed
on the Best Qualified List. Moreover, the record does not show that
any selectee had a lower score than complainant and was selected. With
respect to complainant's contention that he established a prima facie
case, we note that complainant failed to establish a prima facie case
of race or age discrimination because both selectees were White and
over the age of 40. With respect to gender, we find that complainant
established a prima facie case of sex discrimination since one of the
selectees was a woman. Notwithstanding, we agree with the AJ that
the agency articulated legitimate nondiscriminatory reasons for its
action and complainant failed to show that the reasons were pretext
for discrimination. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final order.
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
___04-10-02_______________
Date
1 Complainant's counsel maintains that the AJ never ruled on the October
5, 2000, joint motion for a continuance. The agency disputes this.
Nevertheless, the AJ issued a second notice of intent to render a summary
judgment after the close of discovery. The agency indicates, however,
that complainant's counsel went on vacation at Club Med while this matter
was still pending and upon her return she claimed she became ill and thus
did not respond in a timely manner. The dates of counsel's vacation and
the nature of her illness are not disclosed in the record. Complainant's
counsel does not give any explanation for her tardiness other than she
responded to the notice when she received it. As such, we find that
the AJ did not error in finding complainant's motion untimely.