0120141626
01-31-2017
Mario G.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mario G.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120141626
Hearing No. 420-2013-00120X
Agency No. DIA-2011-00022
DECISION
On March 25, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 12, 2014, final order 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing finding no discrimination.
ISSUES PRESENTED
The issues presented are whether the AJ erred in issuing a decision without a hearing after he found that there were no material facts at issue; and whether the AJ correctly determined that Complainant did not establish that he was subjected to discrimination when he was not selected for various positions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an Applicant for various positions at the Agency. On February 28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (spinal cord injury), age (55), and reprisal for prior protected EEO activity when:
1) He learned on April 30, 2010, that he was not selected for an entry level position under vacancy announcement A09-026552-02-JER which closed on February 28, 2010 (Drug Program Specialist/Nuclear Physicist):
2) He learned on June 23, 2010, that he was not selected for a position under vacancy announcement A10-027451-01-JER which closed on May 31, 2010 (Intelligence Officer); and
3) He learned on February 10, 2011, that his application package for vacancy Announcement Number ElO-029363-Ol-MEK was reviewed and he was denied an invitation to the DIA Washington, DC Hiring Event in Washington, DC (Security position).
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 Administrative Judge. Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ issued a decision without a hearing on January 23, 2014. The AJ found that there were no material facts at issue and granted the Agency's motion for summary judgment. The AJ determined that the panelist for all of these positions were unaware of Complainant's age, disability, and/or prior EEO activity but could have probably guessed his sex based on his name. Moreover, the AJ found that Complainant was not referred for any of the positions because he was not found to be qualified.
With regard to the Drug Program Specialist position that Complainant applied for, the record indicates that he was not referred for consideration. The selecting official received ten resumes that did not include Complainant. The selectee had direct health or drug testing experience, was bilingual in Spanish and English, had a Bachelor's degree, was on the Dean's list, received the Presidential scholarship, and appeared to be trainable and would listen. Complainant felt he should have been selected because he was over qualified because the position only required a 4 year degree while he possessed master's and law degree. He also noted his 18 year service as a policeman.
For the most part, Complainant agreed that he was not qualified for the Nuclear Physicist position. The record indicated that the person selected for the position had a degree in physics.
With respect to the Intelligence Officer position, the record indicated that no selection was made.
Finally, Complainant was not invited to a job fair in Washington, D.C. based on a review of his resume. Over eight (8) thousand applications were received, but only six (6) hundred invitations were sent out to attend the job fair. Complainant's application indicated that he was primarily interested in a security position. The hiring manager for the two security positions that were vacant reviewed Complainant's application and decided that not to refer him for an interview because the application indicated that Complainant's most recent work experience was as a flight consultant and a restaurant manager. Five (5) candidates were interviewed, but no one was selected from the job fair for the two positions that were vacant.
The AJ found that assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not referred for these positions because he was found not to be qualified. The AJ indicated that Complainant's arguments that the Agency would have seen that he was qualified for a position had he been allowed to talk to them about his qualifications was not persuadable as that was not the way the process worked. The AJ found that other than Complainant's conclusory statements he did not show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. The AJ determined that Complainant did not prove that discrimination played a role here. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant argues, among other things, that he is more qualified for the Drug Program Specialist position than the selectee. He also contends that the AJ was biased and therefore a hearing was warranted in this case. Complainant also asserts that because the Agency made corrections to its discovery responses an inference that there are material facts in dispute should have been made.
In response, the Agency contends that the uncontested, material fact is that Complainant was never considered for any of the entry level positions because the textual search process followed by the Entry Level Panel never identified Complainant's resume. The Agency argues that the Commission has repeatedly ruled that the non-selection of an applicant as a result of the use of textual searches to review a resume bank is not discrimination. The Agency maintains that having never been considered, Complainant could not have been discriminated against. The Agency maintains that summary judgment was appropriate because Complainant's arguments about his qualifications and comparative merits are merely hypothetical.
Further, the Agency notes that Complainant argues that there were irregularities in the discovery procedures and he argues that there were conflicts in the evidence which should have prevented summary judgment. The Agency maintains that neither argument has merit. Complainant alleges that Agency counsel requested leave to withdraw some of the Agency's discovery responses and then submitted corrected responses after it was learned that some of the Agency discovery responses had been incorrect. The Agency admits that this is true but maintains that this simply proves that Agency's counsel worked with the AJ for an accurate record.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). We find that the AJ properly issued a decision without a hearing as there are no material facts at issue.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that assuming arguendo that Complainant established a prima facie case of discrimination, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant was not referred for any of the positions based on the information he provided on his resume. Like the AJ, we find no persuasive evidence that Agency officials involved in these selection decisions, at any level of the process, were aware of Complainant's age, disability, and/or prior EEO activity. We find that Complainant did not show that the Agency's reasons were pretext for discrimination or that his qualifications were plainly superior to those of the selectees.
With respect to Complainant's contentions on appeal, we find that other than his conclusory statements, he has presented no evidence that discriminatory animus was involved with these non-referrals. We also find that Complainant has not shown that the AJ was bias or that the correction of the record led to a showing that material facts were in dispute.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's decision which found that Complainant did not demonstrate that he was subjected to discrimination or reprisal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_1/31/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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