01a55752
11-04-2005
Robert J. Boardman, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Robert J. Boardman v. Federal Deposit Insurance Corporation
01A55752
November 4, 2005
.
Robert J. Boardman,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A55752
Agency No. FDICEO-020057
Hearing No. 210-2004-00099X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination.
The record reveals that, during the relevant time, complainant was
employed as a Compliance Examiner at the agency's Urbandale Field Office,
Division of Supervision and Consumer Protection (DSC) in West Des Moines,
Iowa. Complainant sought EEO counseling and subsequently filed a formal
complaint alleging that he was discriminated on the basis of age (date
of birth: July 12, 1952) when he was not selected for eleven positions.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ, but prior to the hearing the agency
filed a Motion for Summary Judgment.
On October 26, 2004, the AJ granted partial summary judgment regarding
four positions for which complainant applied but was not selected because
the selectees were older than complainant. The AJ also granted summary
judgment as to a fifth position, where complainant failed to controvert
the agency's explanation for its selection decision. The remaining six
positions were addressed at the hearing because the AJ determined that the
agency failed to show that complainant could not prevail on those claims.
On November 17 - 19, 2004, a hearing was held. On the second day of
the hearing, partial summary judgment was granted as to a sixth position
because complainant failed to controvert the agency's explanation.
The following claims remained for hearing:
Complainant alleged discrimination on the basis of age (date of birth:
July 12, 1952) when:
He was not selected for a Field Supervisor (Compliance), CG-570-15,
position located in Chicago, Illinois, which was advertised under
Vacancy Announcement 2002-CHI-1831, which opened on July 18, 2002,
and closed on July 24, 2002.
He was not selected for Field Supervisor (Compliance), CG-570-14,
positions located in: Springfield/Princeton, Illinois;
Lexington/Elizabethtown, Kentucky; Urbandale/Cedar Rapids, Iowa; and
Sioux Falls, South Dakota/Grand Forks, North Dakota/Fargo, North Dakota
(one position total for South and North Dakota), advertised under
Vacancy Announcement 2002-CHI-1832, which opened on July 18, 2002,
and closed on July 24, 2002.
Following a hearing, the AJ issued a decision on July 14, 2005, finding
that complainant had not been discriminated against. Specifically,
the AJ found that the agency presented legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut. On August 8,
2005, the agency issued a decision fully implementing the AJ's decision.
Complainant now appeals from that decision.
6 Nonselections - Summary Judgment
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 six positions for which summary judgment was granted for the agency
were all non-selections for the Field Supervisor, CG-570-14 vacancy in
Indianapolis, Omaha, Norcross, Albany, Austin, and Baton Rouge. For the
positions in Indianapolis, Omaha, Norcross, and Albany, the AJ found that
the selectees were all older than complainant and that complainant had
not presented a prima facie case with regard to those selections. With
regard to the selections for the Austin and Baton Rouge positions, the AJ
found that complainant failed to cite evidence controverting the facts
or articulated bases for the decision makers' selections. The decision
makers' stated that they relied on the applications of the selectees which
were superior to complainant's application and also chose the selectees
because of the selectees' considerably longer supervisory experience.
The Commission finds that the grant of summary judgment for the agency
on the six non-selections was proper.
5 Nonselections - Hearing
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 Board, 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.
We find that the agency has provided legitimate nondiscriminatory
reasons for the five nonselections for which a hearing was held.
The selecting officials stated that complainant did not include in his
application detailed information on what he did in his various positions,
what he accomplished, how well he performed, or how his experiences and
training related to the positions that he applied for. The selecting
officials testified that the applications of the selectees', in contrast
to complainant's application, did provide the necessary information
to show they were best suited for the positions. The AJ noted,
�Complainant's affidavits and testimony expanding on [his qualifications
in his applications] does not change what was available to the selecting
officials at the time they made their selections.�
Complainant has failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selections. Additionally, complainant
has failed to show that his qualifications for the positions were plainly
superior to the selectees' qualifications or that the agency's actions
were motivated by discrimination. Moreover, complainant has failed to
show, by a preponderance of the evidence, that he was discriminated
against on the basis of age. Furthermore, the Commission finds that
the AJ's decision finding no discrimination is supported by substantial
evidence.
The agency's decision finding no discrimination is AFFIRMED.
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
November 4, 2005
__________________
Date