0120103646
10-09-2012
John S. Materi, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
John S. Materi,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120103646
Hearing No. 541-2010-0041X
Agency No. HUD-00060-2009
DECISION
JURISDICTION
Complainant timely filed an appeal from an EEOC Administrative Judge's (AJ) decision concerning his equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the AJ's decision.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Facilities Management Specialist at the Office of Public Housing in the Agency's Denver, Colorado Regional Office. Complainant began his career with the federal government in October 1973 and has been employed with the Agency's Office of Public Housing since March 1991.
On or about October 30, 2008, Complainant applied for the position of Division Director, GS-14, in the Denver Office of Public Housing under Vacancy Announcement 06-DEU-2009-006 (DEU). The Agency also posted a vacancy announcement for the same position under Vacancy Announcement 06-MSR-2009-0006 (MSR), but Complainant did not apply under this vacancy announcement. Candidates who applied under the DEU announcement were evaluated by a rating panel that rated applicants in four areas on a scale of one to three points. The rating panel consisted of the Program Liaison Specialist and the Real Estate Analyst for Headquarters. Complainant received two points in all four areas of evaluation, yielding a total score of eight (out of 12) points, which was converted to a score of 90. Only the top three DEU applicants were referred for an interview with the selecting official, and the top three DEU applicants received scores of 95, 98, and 100. The Agency also interviewed three applicants pursuant to the MSR vacancy announcement who were deemed best-qualified. The Agency selected a 37 year-old female for the position who had applied under both the MSR and DEU announcements, but the Agency selected the selectee pursuant to her MSR application.1
On February 18, 2009, Complainant contacted an EEO Counselor and filed a formal EEO complaint on April 15, 2009, alleging that the Agency discriminated against him on the bases of sex (male) and age (63 years old) when, on February 17, 2009, he learned that he was not selected for the position of Division Director, GS-1101-14, in the Denver Office of Public Housing under Vacancy Announcement 06-DEU-2009-0006.
In an investigative affidavit statement, Complainant stated that he was simply told that he did not rate high enough for his application to make the Best Qualified List and be referred to the selecting official. Complainant further stated that, based on his program experience and qualifications, he clearly had significantly many more years of work experience, public housing program experience and experience managing and directing a staff than the selectee.
Complainant also stated that he felt he was discriminated against because the person selected for the position was much younger than he was. He stated that he has worked in almost all aspects of the public housing program, assisted Public Housing Office Headquarters as a Public Housing evaluator at several quality management reviews, assisted the Office of Public Housing management with on-site work on many highly visible troubled public housing agencies, and served on many committees established by Headquarters.
The Program Liaison Specialist stated that he was responsible for conducting a preliminary ranking of the applications, but he was unaware of the reasons why Complainant was not recommended for an interview. He further stated that Complainant ranked fourth amongst the DEU applicants, but Complainant was not selected because the other applicants were rated higher because of the information contained in their applications.2
The Division Director stated that DEU announcements are primarily aimed at the general public, but current or former federal employees can apply under a DEU announcement. The Division Director further stated that, under a DEU announcement, only the top three rated candidates will be referred for position. He also stated that merit promotion announcements (MSR) are open to current and former federal employees from any federal agency. The Division Director stated that the selecting official may select from either of the lists of candidates provided.
The Director of the Office of Public Housing stated that she became Complainant's first-line supervisor in 2003. She stated that, "In 2009, I was able to fill the vacant Division Director position, and I selected [the selectee] for this position." Affidavit E, p. 2. The Director of the Office of Public Housing did not elaborate any further.
The Real Estate Analyst stated that he did not have any knowledge of the selection process nor did he have any knowledge of why Complainant was not recommended for the position. However, he stated that applicants must have had one year of specialized experience equivalent to the next lower grade in the federal service, which equipped the applicant with the particular knowledge, skills, and abilities to successfully perform the duties of the position. The Real Estate Analyst further stated that Complainant ranked fourth among the DEU applicants for the position.
The AJ's Decision
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On May 28, 2010, the Agency moved for a decision without a hearing, to which Complainant responded in opposition on June 8, 2010. On August 25, 2010, the AJ issued a decision without a hearing in which she found no discrimination. Specifically, the AJ found that Complainant established a prima facie case of age discrimination but did not establish a prima facie case of sex discrimination because all three applicants referred for an interview under the DEU vacancy announcement are male. The AJ further found that the Agency provided a legitimate, non-discriminatory reason for not referring Complainant for an interview with the selecting official, because the Complainant was not ranked high enough by the Agency to make the referral list. The Agency further found that Complainant failed to provide any evidence from which it could be concluded that the Agency's explanation was pretext for unlawful discrimination. The Agency did not issue a final order, but when the Agency failed to issue a final order within 40 days of its receipt of the AJ's decision, the AJ's decision became the final agency action. See 29 C.F.R. � 1614.1090).
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when she issued a decision without a hearing in favor of the Agency. Complainant contends that he possesses superior qualifications for the position because he has more experience in public housing and management, whereas the selectee had little or no management, leadership, and direct supervisory experience. Additionally, Complainant contends that he agrees with the AJ's finding that there was insufficient evidence of sex discrimination. The Agency requests that we affirm the AJ's findings.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (EEO MD110) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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").
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. 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). We find that the AJ improperly issued a decision without a hearing because the record is inadequately developed.
Non-Selection
Claims of discrimination in disparate treatment cases are generally examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). In the context of a claim that a complainant was not subjected because of his age, a complainant must first show: (1) he applied for and met the basic qualifications for a vacancy for which the agency was seeking applicants; (2) he was rejected despite his qualifications; and (3) another person not of his protected class but similarly situated as to position, grade, supervisor, and circumstances, was selected for the position. EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915 002, at n.4 (Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998).
Once a complainant has established a prima facie case, the burden of production then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts to the complainant to demonstrate by preponderant evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is his obligation to show that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Prima Facie Case
Upon review of this matter, we initially note that Complainant does not challenge the AJ's finding that he failed to prove that he was subjected to sex discrimination. Therefore, we restrict our review to the AJ's finding that Complainant failed to prove that he was subjected to age discrimination.
In this case, Complainant applied for and was qualified for the Division Director position, but the Agency did not select him for the position. During the relevant time period, Complainant was 63 years old, and the selectee was 37 years old. The three applicants referred to the selecting official from the DEU announcement were 48, 53, and 54 years old. As such, Complainant was significantly older than the selectee and the applicants referred to the selecting official for an interview. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (holding that in age cases, the comparative need not be outside the protected group, i.e., under 40, but must be substantially younger than the complainant).3 Thus, we find that Complainant established a prima facie case of age discrimination.
Burden of Production and the Adequacy of the Record
Because Complainant established a prima facie case of age discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not referring Complainant for an interview. Upon review, we find that the AJ erred in finding that the Agency provided a legitimate, non-discriminatory reason for not referring Complainant. The investigation contains brief statements from four Agency officials: a Program Analyst, a Real Estate Analyst, a Division Director, and the Director of the Office of Public Housing. In his statement, the Program Analyst stated that he did the preliminary ranking of the applicants but did not know why Complainant was not referred for an interview. The Real Estate Analyst stated that he had no knowledge of the reasons why Complainant was not recommended for an interview. The Division Director recounted the general mechanics of the selecting process but did not explain why Complainant was not referred for an interview or selected. The Director of the Office of Public Housing stated that she chose the selectee for the Division Director position but likewise did not explain why Complainant was not referred or selected.
The aforementioned statements are the only sworn statements from Agency officials in the record, yet they do not provide us with any substantive reason for Complainant's non-referral. Although the Agency asserts that the selection panel's applicant scores are the reason why Complainant was not referred or selected for the position, selecting officials failed to explain why Complainant received a score of 90 versus other applicants' higher scores. Further, although the record contains ranking forms that contain the scores the applicants received in four areas, they do not reveal the reasoning and justification for the scores.4
Thus, we find that the investigative record is inadequately developed for a determination on the merits of Complainant's complaint. See Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011) (inadequate investigation where agency officials who provided statements only provided an overview of the mechanics of the selection process and did not articulate the reasoning that produced applicant scores); O'Neill v. Dep't of State, EEOC Appeal No. 0120083597 (Jan. 15, 2009) (inadequate investigation when the record only contained generalized affidavit testimony regarding the process used to make promotion decision but no evidence that provided an individualized assessment as to why complainant was ranked "mid-ranked," which resulted in his non-promotion). We note that if an AJ finds that the record is inadequately developed or lacking in needed documentation, the AJ should order the agency to produce documentation that would aid the decision-maker in evaluating the merits of the complaint. See 29 C.F.R. � 1614.109(a) (once a hearing request is assigned to an AJ, the AJ assumes full responsibility for the adjudication of the complaint, including overseeing the development of the record); EEO MD-110, p.7-5. Moreover, 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, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at 7-1; see also 29 C.F.R. � 1614.109(e).
Because we are remanding this matter to the Agency for a supplemental investigation, we remind the Agency that courts have held that when hiring or promotion decisions are based on scores, employers must meet the burden of producing a legitimate, non-discriminatory basis for their decision by producing evidence of the reasons for their evaluations. For instance, in Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007), the employer explained that it did not hire the plaintiff because a rating board gave the plaintiff interview scores that resulted in her ranking 29th out of 40 candidates, whereas all the selectees were given scores that ranked them in the top 11. The court in Alvarado held that, because the employer failed to point to any evidence in the summary judgment record that clarified why the plaintiff received the relatively low interview score, the employer failed to proffer a reason for the plaintiff's non-selection that, if believed, would allow a jury to conclude that the non-selection was not the result of unlawful discrimination. Alvarado, 492 F.3d at 617.
Of course, this does not mean that scores cannot be used during the selection process. Subjective assessments of candidates may serve as a legitimate, nondiscriminatory reason for not hiring a candidate. Browning v. Sw. Research Inst., 288 Fed. Appx. 170, 176-77 (5th Cir. 2008); Joseph v. City of Dallas, 277 Fed. Appx. 436, 440-41 (5th Cir. 2008); Alvarado, 492 F.3d at 616. However, "because subjective reasons can be a pretext for discrimination, such 'reason[s] will satisfy the employer's burden of production . . . only if the employer articulates a clear and reasonably specific basis for its subjective assessment.'" Browning, 288 Fed. Appx. at 177 (quoting Alvarado, 492 F.3d at 616). Therefore, when scores are the result of subjective evaluations, the Agency must provide some explanation for giving Complainant and the selectees particular scores.5 Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124.
In summary, we find that the record was inadequately developed with respect to Complainant's age discrimination claim. An "appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." EEO MD-110, at 6-1. Therefore, judgment as a matter of law in favor of the Agency should not have been granted on Complainant's age discrimination claim. See Barry v. Dep't of Commerce, EEOC Appeal No. 0120093834 (June 30, 2011).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's decision with respect to Complainant's sex discrimination claim. The Commission VACATES the AJ's decision with respect to Complainant's age discrimination claim and REMANDS this matter for further processing in accordance with this decision and the Order below.
ORDER
Within 60 days of the date this Order becomes final, the Agency shall:
1. Supplement the record with sworn statements from the selection panelists and selecting official(s) that explain why Complainant and the referred applicants received the scores they did for the District Director position at issue. The Agency shall also supplement the record with any other evidence that explains with specificity why Complainant was not referred for an interview and why other applicants were referred.
After conducting the supplemental investigation, the Agency shall provide Complainant with a copy of the supplemental investigation file and shall notify Complainant of his right to request a hearing from an Administrative Judge or an immediate final decision from the Agency.
A copy of the notice to Complainant transmitting the supplemental investigation file and advising Complainant of her right to request a hearing or final decision shall be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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
October 9, 2012
Date
1 The rating form reflects that the Agency ranked the selectee fourth on her DEU application and assigned her 93 points.
2 We note that Agency officials maintained that Complainant received the fourth-highest score among DEU applicants, but a ranking form in the record indicates that Complainant received the fifth-highest score.
3 While there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years. See Hammersmith v. Social Secur. Admin., EEOC Appeal No. 01A05922 (Mar. 6, 2002).
4The Agency's failure to explain why Complainant received a score of 90 is especially noteworthy in light of Complainant's qualifications, particularly his 35 years of federal experience; 18 years of public housing experience; outstanding performance evaluations; successful completion of the Agency's Leadership Development Program (LDP); and experience as a team leader.
5 For example, in Joseph, the Fifth Circuit found that the employer met its burden of production by showing that the plaintiff received poor scores in the selection process because "he provided poor answers to the hypothetical police scenarios and seemed unable to logically process information." Joseph, 277 Fed Appx. at 441. Likewise, the Fourth Circuit recently held that an employer met its burden of production when it explained that the plaintiff received lower scores during the selection process because she had less technical expertise than the other candidates. Harris v. Mayor and City Council of Baltimore, No. 09-1446, 2011 WL 1739994 (4th Cir. 2011).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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