0120102552
10-15-2010
Ken Terry, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Ken Terry,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120102552
Hearing No. 570200900264X
Agency No. 2008033
DECISION
On June 1, 2010, Complainant filed an appeal from the Agency's April 28, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
On September 11, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (two replacement shoulders)1 when:
1. On October 29, 2007, he was notified of his test scores for the Administrative Law Judge (ALJ) Examination (ALJ); and
2. In 2007, the Agency failed to inform him that he would be required to type during the ALJ Examination; and
3. From July 30, 2008 to August 1, 2008, he was not permitted to take the ALJ Examination.
The record indicates that in a partial acceptance letter to Complainant dated September 26, 2008, the Agency accepted claim 3 for investigation and dismissed claims 1 and 2 as untimely in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The record indicates that Complainant contacted the EEO counselor on August 12, 2008 regarding the events described in claims 1 and 2 which occurred on October 29, 2007 and on another unspecified date in 2007. The record establishes that Complainant's contact of an EEO Counselor occurred well beyond 45 days following the events described in claims 1 and 2. Complainant does not indicate that he was unaware of the time limitations for timely seeking EEO counseling, nor does he state that he was prevented by reasons beyond his control from contacting an EEO Counselor in a timely manner. Accordingly, the Commission finds that the Agency's decision dismissing claims 1 and 2 as untimely was proper. The Agency's decision dismissing claims 1 and 2 in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2) is hereby AFFIRMED for the reasons set forth herein.
BACKGROUND
At the conclusion of the investigation, the Agency provided Complainant 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. Over the complainant's objections, the AJ assigned to the case granted the Agency's January 22, 2010, motion for a decision without a hearing and issued a decision without a hearing on March 12, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency requests that the Commission affirm its final order.
The record indicates that the ALJ Examination is a multi-part examination which was opened under Vacancy Announcement 2007ALJ-134557 (VA 2007ALJ-134575) on May 4, 2007. To In order to apply for the position, applicants were required to submit an online application which consisted of an Assessment Questionnaire, which included the applicants' Accomplishment Record, resume and any applicable veteran's preference documentation. Complainant completed the ALJ Examination in July 2007 and received his Notice of Results (NOR) on October 29, 2007 indicating that he received a total score of 49.64 out of 100 points. On October 30, 2007, Complainant received an email from the Administrative Law Judge Examining Office (ALJEO) providing "Supplemental ALJ Information." The October 30, 2007 email advised Complainant that if he had received his NOR with a final numerical rating, he was then eligible to retake the examination after one year had passed from the date of the final NOR and the examination opened to new applicants. In July 2008, the Agency posted another announcement for an ALJ position. The record is clear that Complainant did not submit an application for the position pursuant to the July 2008 vacancy announcement. According to the Agency's human resources official, because Complainant received his Notice of Results (NOR) less than one year before the 2008 examination period began, he was ineligible to re-take the ALJ Examination in July 2008.
CONTENTIONS ON APPEAL
Complainant makes not new contentions on appeal regarding the Agency's findings in this matter.
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, 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. The Commission finds that the grant of summary judgment was appropriate, as no genuine dispute of material fact exists.
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, the Commission finds that assuming arguendo, the Complainant was able to establish a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for the alleged discriminatory conduct in this matter. The record is clear that based on Agency policy, Complainant was ineligible to retake the ALJ examination less than one year from the date that he received his results from the previous examination. Complainant initially took the ALJ Examination in July 2007 and received his test scores in October 2007. In accordance with Agency policy, he was yet not eligible in July 2008 to retake the examination. Moreover, the Commission finds that Complainant has failed to demonstrate that the Agency's articulated reason for its conduct in this matter was pretext to mask discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency's finding of no discrimination regarding claim 3 and its dismissal of claims 1 and 2 in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2) as untimely was proper. Accordingly, the Agency's decision is hereby AFFIRMED for the reasons set forth herein.
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 (S0610)
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 (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 15, 2010
__________________
Date
1 For purposes of analysis, the Commission assumes without finding, that Complainant is an individual with a disability. 29 C.F.R. � 1630.2 (g)(i).
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0120102552
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102552