01A24973
08-06-2003
Leo Harms, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Leo Harms v. Department of Commerce
01A24973
August 6, 2003
.
Leo Harms,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 01A24973
Agency No. 00-63-03365D
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that during the relevant time, complainant was an
applicant for employment as an Enumerator at the agency's Idaho Falls,
Idaho facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on February 21, 2001, alleging that he was
discriminated against on the bases of religion (Baptist), disability,
and age (D.O.B. 5/26/30) when he was not hired as an Enumerator.
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.
It was undisputed that complainant received a score of 87 on the
required examination for the Enumerator position. It was further
undisputed that in the area for which his application was considered
(Bonneville County), no applicants were hired who had an examination
score below 94 were hired. The AJ noted that complainant did not
proffer any evidence that similarly situated individuals, outside of
his protected classes, having scores of 87 or below, were hired during
the relevant time period. She concluded that complainant did not show
that the agency discriminated against him because of his race, religion,
age or disability by a preponderance of the evidence.
The agency's final order implemented the AJ's decision. Neither the
complainant nor the agency makes any new contentions on appeal.
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. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
In the instant case, it is undisputed that complainant received a test
score of 87 on the Enumerator examination including 5 points Veterans
Preference. The record demonstrates that the area for which complainant
was considered was Bonneville County and no applicant with a score lower
than 94 was hired there. While complainant stated in his complaint
that he felt that numerous people were hired with scores under 94, he
did not submit such evidence, nor do we find any other evidence from
which a discriminatory motive can be inferred. We thus conclude that
there are no genuine issues of material fact in dispute and that the
AJ's issuance of a decision without a hearing was proper.
We conclude that complainant failed to establish, by a preponderance of
the evidence, that the agency's actions were motivated by discriminatory
animus towards his race, religion, age or disability. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including arguments and evidence not specifically addressed in
this decision, we affirm the agency's final decision.
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:
August 6, 2003
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date