01A02647
04-24-2002
Piero Giannelli, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Piero Giannelli v. Department of Justice
01A02647
April 24, 2002
.
Piero Giannelli,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A02647
Agency No. I-96-7075
Hearing No. 210-99-6169X
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) 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., 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. Complainant alleges in his complaint that he was
unlawfully discriminated against on the bases of his national origin
(Italian) and age (fifty-six years of age at the time of the agency
actions at issue) when, in April 1996, he was not selected for a District
Adjudication Officer (DAO) position, and his priority consideration status
was terminated. For the following reasons, the Commission AFFIRMS the
agency's final order finding no discrimination.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At the time of the agency actions at issue, complainant was employed
as a Special Operations Immigration Inspector at the agency's O'Hare
International Airport facility in Chicago, Illinois. Prior to his
promotion to this position in January, 1996, complainant was employed
as an Immigration Inspector at the same agency facility. In May,
1995, complainant submitted an application for a then-vacant DAO
position, but due to an agency processing error his application was
not given consideration. In September, 1995, as a response to this
error, the agency notified complainant that he would be accorded
�priority consideration� for the next identical or similar vacancy.
Assuming complainant could meet the minimum requirements for any such
vacant position, this priority consideration would entitle him to be
considered for the vacancy without comparison to other applicants, but
would not guarantee his selection for the position. As mentioned above,
complainant was promoted in January, 1996, but he did not utilize his
priority consideration in acquiring that promotion.
In March, 1996, the agency had another DAO vacancy to fill, and
the appropriate officials were made aware of complainant's priority
consideration status. Subsequently, on March 28, 1996, the agency posted
the vacancy notice for the DAO position. In a letter dated May 6, 1996,
the selecting official (SO) for the DAO position notified complainant that
his name had been provided to SO as a priority consideration candidate
for the position, that he had not been selected for the position, and
that he could apply for it competitively if he so desired. The letter
also informed complainant that his priority consideration was no longer
available to him.
Believing the aforementioned acts constituted unlawful discrimination
based upon his national origin and age, complainant contacted an
EEO counselor, and, on June 27, 1996, filed a formal complaint of
discrimination. The agency investigated complainant's claims of
discrimination, and complainant requested a hearing on the matter
before an Administrative Judge (AJ). After the hearing, the AJ issued
a recommended decision finding no discrimination.
The AJ found that complainant had failed to establish a prima facie case
of national origin or age discrimination, as he failed to identify any
similarly-situated individuals who were not of his protected groups and
who had been treated more favorably than himself. The AJ also found that,
even if complainant had established the requisite prima facie cases,
he had not proven by a preponderance of the evidence that the agency's
proffered nondiscriminatory reasons for complainant's nonselection
were pretextual.
The agency's FAD implemented the AJ's recommended decision. In a
separate memorandum issued in support of the FAD, the agency recognized
that a complainant may establish a prima facie case of discrimination
without resort to presentation of similarly-situated comparison
employees, but that the evidentiary record nonetheless supported the
AJ's ultimate conclusion that complainant had not been the victim of
unlawful discrimination as claimed. The memorandum noted that SO had
articulated legitimate, nondiscriminatory reasons for complainant's
nonselection: that complainant's performance had not been noteworthy;
and that SO had an operational interest in keeping senior officers such
as complainant in the airport position to which he had so recently
been promoted. The memorandum further noted that, while the AJ's
decision did not specifically address complainant's claim regarding the
loss of his priority consideration, the agency articulated a legitimate
reason for this loss: its policy regarding the one-time use of priority
considerations; and that the record contained no evidence that would
indicate that this reason was pretext for unlawful discrimination.
On appeal, complainant argues that he was unable to establish a prima
facie case of discrimination because of the AJ's improper exclusion
of witnesses who, complainant alleges, would have testified on several
subjects relevant to his claims, including complainant's work habits and
skills as well as the existence at the agency of a �good old boy� network
of favored employees who receive special assignments and which operates
to exclude persons from such special assignments based upon their age
and national origin. Complainant also argues that the AJ improperly
denied his request at the end of the hearing to offer his own testimony
in rebuttal to that previously presented by SO. The agency presents no
arguments on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Complainant's arguments on appeal focus on the AJ's conduct of the
hearing and the presentation of testimony. An AJ, however, has broad
discretion in the conduct of a hearing. McCormick v. United States
Postal Serv., EEOC Request No. 05970054 (June 11, 1998); see also 29
C.F.R. � 1614.109(e). The AJ is charged with regulating the conduct of
the hearing, limiting the number of witnesses, and ensuring the relevancy
of the testimony presented. 29 C.F.R. � 1614.109(e). Likewise, the AJ
has the obligation to exclude irrelevant or repetitious evidence. Id.
As for the witnesses complainant claims were improperly excluded from
testifying at the hearing, complainant has not shown that their testimony
would be sufficiently probative on the ultimate issue of whether he
was unlawfully discriminated against as claimed to establish that the
AJ's ruling was an abuse of discretion. As indicated in the agency's
memorandum in support of its FAD, the proposed testimony is, at best,
vague as to whether conditions exist at the agency which operate
to the unlawful detriment of persons of a particular national origin
or age. Furthermore, complainant has provided no indication that these
witnesses' testimony would in any way clarify or substantiate this claim.
The testimony also appears, based on complainant's characterization
of its content, to be redundant and of questionable probative value as
to complainant's prior work history and qualifications. Accordingly,
we perceive no abuse of discretion in the AJ's ruling on complainant's
proposed witnesses.
We are also in agreement with the AJ's decision to deny complainant's
request to present rebuttal testimony at the conclusion of the hearing.
Complainant made an offer of proof to the AJ in support of this request,
noting that SO had testified at the hearing to different facts regarding
his reasoning behind the nonselection decision than he had stated in
his affidavit to the EEO investigator. In his EEO affidavit, SO stated
that he did not remember the specific details behind the nonselection,
but at the hearing he testified that he had made the decision based upon
his concern, from a staff management perspective, over promoting away
complainant so soon after his last promotion. Therefore, complainant
argued, he had been surprised by the new testimony of SO, and should
be afforded an opportunity to present his own testimony regarding three
other individuals who he alleged had been selected for DAO positions soon
after receiving promotions to Special Operations Immigration Inspector
positions. In denying complainant's request, the AJ stated that some
of complainant's proposed testimony was duplicative of evidence already
in the record. The AJ also stated that the two subsequent promotions
occurred over two years after complainant's nonselection, making them
too remote in time to be meaningful for comparison, and the person
who received a promotion to DAO nine months prior to complainant was
so promoted by a different selecting official than SO. The AJ further
stated that complainant previously had ample opportunity to cross-examine
SO on this point while SO was present to testify, but complainant did
not choose to do so. In light of the wide discretion afforded an AJ in
the conduct of a hearing, and the ample opportunity complainant had when
SO was present to testify to cross examine SO on this issue, we perceive
no error in the AJ's denial of complainant's request.
We note that the AJ concluded that complainant had failed to establish
a prima facie case of national origin or age discrimination because
of his failure to demonstrate that he had been treated differently by
the agency than it treated any other comparative employee, not of his
protected groups, in a similar situation. However, we have repeatedly
emphasized in our decisions that it is not necessary for complainant to
rely strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie case.
See Evans v. United States Postal Serv., EEOC Appeal No. 01986607
(Sept. 12, 2001); see also O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996). The AJ's narrow interpretation of complainant's burden
was incorrect as a matter of law. However, in light of the record's lack
of either comparative or other evidence from which one could conclude that
unlawful discrimination played a role in the agency actions at issue, we
cannot conclude that, in this case, the AJ's erroneous statement of law
warrants reversal of the agency's ultimate finding of no discrimination.
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in
this decision, the Commission finds that the AJ's findings of fact
are supported by substantial evidence in the record and that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws, with the one exception
discussed above. We note that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's national origin or age, or that complainant's age
�actually played a role in [the employer's decisionmaking] process and
had a determinative effect on the outcome.� Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 141 (2000). We discern no basis to disturb
the AJ's decision. Therefore, it is the decision of the Commission to
AFFIRM the FAD finding no discrimination.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2002
Date