0120111810
05-16-2013
Richard A. Peterson, Complainant, v. John Kerry, Secretary, Department of State, Agency.
Richard A. Peterson,
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120111810
Hearing No. 570-2008-00879X
Agency No. DOS-F-051-08
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal1 from the Agency's January 12, 2011 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Supply Supervisor at the Agency's U.S. Embassy, General Services Office, Property and Supply Department, in Bangkok, Thailand. Complainant was employed under a one-year Personal Services Agreement (PSA), effective April 6, 2003. Although the local compensation plan for Thailand provided for a mandatory retirement age of 60, Complainant was 60 years of age when the original PSA was executed. The Agency subsequently extended Complainant's PSA for additional one-year periods in 2004, 2005, 2006, and 2007, with the last extension expiring on April 15, 2008. In 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (65) when, effective April 15, 2008, it did not extend his PSA, thereby ending his employment as a Supply Supervisor.
After an April 13, 2010 hearing, an EEOC Administrative Judge (AJ) issued a decision concluding that Complainant failed to prove that the Agency discriminated against him on the basis of age.
First, the AJ found that the Management Counselor (MC) articulated legitimate, nondiscriminatory reasons for not extending Complainant's PSA. Specifically, the AJ cited MC's testimony that budget issues developed in 2006 and the Agency began to look for ways to save money, including reducing the work hours of spouses of Foreign Service Officers (FSOs). In addition, the AJ cited MC's testimony that, within six months of arriving at the Embassy in July 2006, she determined that Complainant's position was not needed because FSOs could perform his work. Further, the AJ cited MC's testimony that, in February 2007, she met with Complainant and told him she intended not to extend his PSA, but he "begged" for an additional year of employment because his daughter was still attending school and his social security payments would not commence for another year. Finally, the AJ cited MC's testimony that she changed her mind in 2007 and decided to extend Complainant's PSA for an additional year, but told him that it would be his last extension.
Second, the AJ found that Complainant did not prove, by a preponderance of the evidence, that MC's reasons were a pretext for age discrimination. The AJ addressed several pretext arguments raised by Complainant prior to the appeal. Complainant argued that the following evidence in the record showed that the Agency did not extend his PSA because he was past the mandatory retirement age: (1) Complainant testified at the hearing that the 2007 conversation cited by MC never occurred; (2) a Human Resources Officer (HRO1) testified in her affidavit2 that the Agency's decision was based on its need to comply with the mandatory retirement provision; (3) a February 15, 2008 separation notice referenced mandatory retirement; and (4) a March 12, 2008 Embassy cable referenced mandatory retirement.
Regarding (1), the AJ found, based on his observation of their demeanor while testifying at the hearing, that MC and a Human Resources Officer (HRO2) notified Complainant in 2007 that the Agency would not extend his PSA past 2008. Regarding (2), the AJ found that HRO1 was not the decisionmaker and found that HRO1's unsubstantiated opinion was not tantamount to pretext. In addition, citing the fact that the Agency both entered into the PSA and extended the PSA multiple times when Complainant was over the mandatory retirement age, the AJ found that the Agency did not harbor any age bias against Complainant. Regarding (3) and (4), the AJ found that the language in the documents did not show that the Agency's decision about the PSA extension was based on his age. Instead, the AJ found that the documents mentioned mandatory retirement only in the context that Complainant was entitled to separation benefits because he was over the mandatory retirement age.
AJ's Conduct of the Hearing
On appeal, Complainant argued that the AJ's actions during the hearing process unfairly put him at a disadvantage. Specifically, Complainant argued that the AJ erred in allowing HRO2 to testify about the 2007 conversation because the Agency's witness list indicated that his expected testimony concerned the local compensation plan and the mandatory retirement provision. Complainant asserted that, had the Agency listed the real reason for calling HRO2 as a witness, he "would have searched all of [his] files and been prepared to answer their questions in this regard." In addition, Complainant argued that the AJ erred in allowing the Agency to have three attorneys at the hearing because he was pro se. Finally, Complainant argued that the AJ erred in failing to instruct him on the need to enter his exhibits into the hearing record.
After a careful review of the record, we find no abuse of discretion by the AJ. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. � 1614.109(e); see also EEOC Management Directive 110 (EEO MD-110), Ch. 7, � III.D (Nov. 9, 1999).
Regarding HRO2's testimony, we find that Complainant did not articulate what evidence or testimony he would have presented if he had known that HRO2 would testify about the 2007 conversation. Moreover, the hearing transcript reflects that the bulk of HRO2's testimony concerned the local compensation plan and the mandatory retirement provision. Regarding the number of Agency attorneys, the hearing transcript reflects that the Agency had one representative, one technical advisor, and one paralegal/videoconference support person. We note that, generally, an agency's representative and an agency's technical advisor are persons authorized to be present at hearings. See EEOC Handbook for Administrative Judges, Ch. 7, � III.C (July 1, 2002). In addition, the hearing transcript reflects that HRO2 testified via videoconference. Regarding the exhibits, the hearing transcript reflects that the AJ gave Complainant the following instructions when he asked how he would introduce exhibits into evidence: "If you have something that you would like to move for admission, the process is I mark the document. I allow the opposing parties to review it and then you can move to get it admitted into the record and they are either going to stipulate or they are going to object."
Disparate Treatment
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. Nat'l 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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110 (EEO MD-110), Ch. 9, � VI.B (Nov. 9, 1999).
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the basis of age. Specifically, we agree with the AJ that Complainant failed to show that the Agency's articulated reasons for not extending his PSA were a pretext for age discrimination. Below, we will address some of the pretext arguments raised by Complainant on appeal.
Regarding Complainant's argument that the AJ's decision never considered whether age was a factor in the Agency's decision, we find that the AJ properly applied the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Regarding Complainant's argument that the AJ erred in crediting MC's hearing testimony, we do not find that objective evidence in the record so contradicts MC's testimony or that MC's testimony so lacks in credibility that a reasonable fact finder would not credit it. For example, the record contains no objective evidence contradicting MC's testimony that the Agency had budget concerns, the Agency began looking for ways to save money, the Agency determined that Complainant's position was not needed because FSOs could perform his work, and she informed Complainant in 2007 that she would not extend his PSA beyond 2008. In addition, contrary to Complainant assertion that MC provided shifting explanations for the non-renewal of his PSA, the record reflects that MC testified consistently in her affidavit and at the hearing that the Agency no longer needed him in the position. Moreover, beyond Complainant's bare assertions, there is no evidence in the record that MC was biased against Complainant because of his age. We note that MC had previously extended Complainant's PSA in 2007.
Regarding Complainant's argument that the reference to mandatory retirement in the March 12, 2008 Embassy cable was evidence of age discrimination, we find reasonable the AJ's conclusion that the reference pertained to the compensation owed to Complainant and not to the reason for the non-renewal of his PSA. The record reflects that the subject line of the cable was "SEPARATION LIABILITY" and the cable requested accounting data to cover the separation liability for Complainant.
Regarding Complainant's argument that evidence of disparate treatment included the Agency's retention of a 66-year old employee at the Embassy, we find that this does not show that the Agency treated him differently than a similarly situated individual outside of his protected class. We note that the cited employee is very close in age to Complainant.
After a review of the record in its entirety, including consideration of all timely statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by substantial evidence in the record.
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
__5/16/13________________
Date
1 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. Complainant filed his appeal on February 18, 2011. The record reveals that, in addition to the statement he filed on March 8, 2011, Complainant submitted a statement on May 6, 2011. The Commission declines to consider Complainant's May 6, 2011 statement, as it was untimely pursuant to 29 C.F.R. � 1614.403(d).
2 HRO1 did not testify at the hearing.
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0120111810
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111810