01A04367
03-19-2003
Kenneth E. Noseck, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Kenneth E. Noseck v. Department of Justice
01A04367
March 19, 2003
.
Kenneth E. Noseck,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A04367
Agency No. B-99-2305
Hearing No. 100-99-8099X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his complaint of unlawful employment discrimination in
violation of 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. For the following reasons, the Commission
reverses and remands the agency's final order.
The record reveals that during the relevant time, complainant was an
applicant to the agency's Office of Community Oriented Policing division
in Washington, D.C. Complainant sought EEO counseling on September
30, 1998, and subsequently filed a formal complaint on November 5,
1998, alleging that he was discriminated against on the basis of age
(49, D.O.B. 10/29/48) when he was not selected for a Grant Monitoring
Specialist (Specialist), GS-9/11 position, and reprisal for prior ADEA
EEO activity when he was not selected for a Grant Monitoring Supervisor
(Supervisor), GS-14, position.
On June 25, 1998, complainant was interviewed by two agency officials
(S-1 and S-2) from the division for the Specialist position. S1 was
34 years of age and S2 was 32 years of age. Complainant alleges that
during the interview, he was asked improper questions relating to his age.
For example, S-1 stated �this is a fairly young office and you may not
feel comfortable working here;� and S-2 asked �do you think you have
the ability to work with younger people?� Complainant also alleges that
another applicant indicated that he too was asked age-based questions.
In July 1998, complainant wrote a letter to S-1 and S-2's immediate
supervisor (RMO) expressing his concern about the alleged age-based
statements that were made during the interview, and whether S-1 and S-2
had engaged in unprofessional conduct. RMO investigated complainant's
allegations but indicated that he was unable to substantiate them.
Complainant also alleged that his subsequent application for the
Supervisor position was not properly considered because of reprisal as
he complained about age discrimination after his initial interview.
The agency indicated that complainant was not selected for the
Specialist position because his interview failed to show that he was
a good candidate. Specifically, S2 indicated that complainant did not
appear to support or have a commitment to the mission of the division.
S1 indicated that complainant lacked an understanding of, and commitment
to, the community policing philosophy and lacked experience managing
grants and contracts. RMO stated that because complainant was not
found suitable for the subordinate Specialist position, he determined
that complainant would not be suitable for a supervisory position and
did not interview him again. In addition, RMO expressed concerns about
complainant's professional demeanor and his professional judgment.
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). In a letter to the AJ dated November 2, 2000,
the agency requested the AJ issue a decision without a hearing, arguing
that complainant's complaint was appropriate for summary judgment pursuant
to 29 C.F.R. � 1614.109(e)(3). Complainant responded, maintaining that
there were material issues in dispute and that he wanted a hearing on
his complaint. On April 5, 2000, the AJ issued a decision without
a hearing, which adopted the agency's motion for summary judgment,
and found that there were no genuine issues as to any material facts.
The agency adopted the AJ's findings and issued a Final Agency Decision
(FAD) of no age or reprisal discrimination. It is from this decision
that complainant now appeals. The agency stands on the record and
requests that we affirm its final action implementing the AJ's decision.
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 courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
In finding no discrimination on the merits of the allegations raised,
the AJ appeared to rely on the representations of management officials
as provided in their affidavits, denying that they made the alleged
age-related statements. However, while the agency asserts that both S-1
and S-2 denied making the statements, the record reveals that on August
2,1998, prior to giving his affidavit, S-2 submitted a letter to the
RMO in response to complainant's initial allegations, wherein he stated
that complainant was asked �whether he would feel comfortable serving
as a role-model to our �less-mature' staff members.� S-2 also indicated
that if a direct reference to age was made during the interview, then it
was inadvertent and not because of an age-related bias. Agency motion,
Attachment 5, p. 2. This statement appears quite similar to complainant's
recollection of the statement, where S-2 asked �do you think you have
the ability to work with younger people?� Yet in his affidavit S-2 avers
that he did not �recollect making any such comment.� ROI, Exhibit F3,
p. 12. S-1 also avers that complainant misunderstood his questions,
which were focused on training inexperienced staff members directly out
of undergraduate and graduate school, to be related to his age.
On appeal, the agency asserts that there is no dispute that S-1 and S-2
did not make the alleged statements, but that if indeed they had, then
the statements did not rise to the level of genuine issues of material
fact, and were no more than innocuous descriptive statements. However,
to take the statements as being merely �descriptive,� would be to accept
that S-1 and S-2's articulation of what they meant in the interview
was true. It is precisely this type of testimony that is appropriate
for cross examination and a determination on credibility.
Complainant also alleged that he was retaliated against when he was
not selected for the Supervisor position for which he applied because
he informed the RMO about his complaint. The AJ adopted the agency's
articulation that because complainant was not found suitable for the
subordinate Specialist position, the RMO determined that he would not
be suitable for a supervisory position and did not interview him again.
In addition, the RMO expressed concerns about complainant's professional
demeanor and his professional judgment. Complainant contended that while
the RMO questioned his judgment and character, the RMO had no interactions
with him save discussions regarding his age discrimination complaint,
and that this was direct evidence of discrimination. RMO averred that
he based his opinion of complainant on evaluative comments made by
S-1 and S-2 that complainant dropped the names of two high level agency
officials but was then unable to clearly answer the questions asked about
his relevant experience. While we do not consider this to be direct
evidence of discrimination, we note that no specific comments regarding
complainant's professional judgment or demeanor were mentioned until the
investigation of his complaint, and after he alleged that S-1 and S-2
had engaged in unprofessional conduct in his letter dated July 3, 1998.
If we accept complainant's evidence as true, then the fact finder must
assess whether the RMO's decision not to interview complainant for
the Supervisor position was based on complainant's performance during
his interview, or based on his interactions with complainant while
investigating his allegations.
We note that 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 to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also
29 C.F.R. � 1614.109(e). �Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of his claims.� Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). In summary, there are simply too many unresolved
issues which require an assessment as to the credibility of the various
management officials, and complainant, himself. Therefore, judgment
as a matter of law for the agency should not have been granted as to
complainant's age and reprisal claims.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
March 19, 2003
__________________
Date