0120102896
02-08-2012
Robert J. Troise, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Robert J. Troise,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120102896
Hearing No. 550-2010-00039X
Agency No. 09-0418-F
DECISION
On July 6, 2010, Complainant filed an appeal from the Agency’s June
22, 2010, 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts
the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency’s final order which
found that Complainant failed to demonstrate that he was subjected to
discrimination as was alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected
to discrimination on the bases of his race, national origin, sex and/or
age when on February 24, 2009, he was not selected for the position
of Individual Taxpayer Advisory Specialist, GS-5, pursuant to vacancy
announcement no. PH-NM-08-149319-S10.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Computer Operator at the Agency’s Suffolk County Police Department
facility in Yapank, New York.1 In August 2008, Complainant applied for
the position of Individual Taxpayer Advisory Specialist, whose duty
location was listed as Champaign, Illinois. Twelve applicants were
deemed eligible and three of the applicants, including Complainant
were referred for interviews. A panel consisting of two Agency
officials conducted telephone interviews of the three candidates.
The candidates were asked to respond to identical job-related questions.
Following the interviews, the panel selected a 39 year old, white male
(selectee). The selectee possessed a master’s degree in accounting,
had significant accounting experience, and, according to the Agency,
provided the most thoughtful and comprehensive answers to the interview
questions. It was noted that Complainant did not have the same level
of education or experience. With respect to the interview, one of the
interviewers noted that Complainant had an unimpressive interview and
maintained that his conduct raised suspicions regarding his integrity.
She believed that he was less than truthful in his dealings with
personnel and with her during the interview and application process.
It was alleged that Complainant told personnel that the interviewer had
excused him from completing and submitting the Electronic Questionnaire
for Investigation Processing for his background check.
On June 1, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian),
national origin (Italian), sex (male), and age (57) when he was not
selected for the Individual Taxpayer Advisory Specialist, GS-05.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. When the Complainant did not object, the
AJ assigned to the case granted the Agency’s February 1, 2010, motion
for a decision without a hearing and issued a decision without a hearing
on June 16, 2010. The AJ found that Complainant failed to establish a
prima facie case of race and sex discrimination because the successful
applicant was also white and male, like Complainant. The AJ determined
that Complainant did establish a prima facie case of age, and national
origin discrimination but found that the Agency articulated legitimate
nondiscriminatory reasons for its actions, namely, that the selectee
interviewed well, had a master’s degree, and accounting experience
while Complainant did not possess a master’s degree and did not have
significant experience as an accountant. 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 contends that the Agency could not have properly
reviewed his case in such a short period of time. Complainant also
maintains that the AJ initially told the Agency’s attorney to find
Complainant a job but then let the matter set for over ten months while
nothing was done. Complainant maintains that the selectee changes jobs
every five to eight months, and it was well know that the Agency did not
hire people that changed jobs often. He also indicates that a degree was
not needed for the entry level position. Finally, Complainant maintains
that he completed all of the necessary processing for this position.
Complainant requests that a job be found for him.
The Agency contends that it has articulated legitimate nondiscriminatory
reasons for its actions and Complainant has not shown that those reasons
were pretext for discrimination. Therefore, the Agency requests that
its final order be affirmed.
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, at Chapter 9, § VI.B. (November 9,
1999) (providing that an administrative judge’s “decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will
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”).
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). The Commission agrees that
no material issues of fact are in dispute in this case and therefore,
the AJ properly issued a decision without a hearing in this case.
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that even if we assume that
Complainant established a prima facie case of discrimination as to all
bases, we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that the successful applicant had
superior qualifications, such as a master’s degree in accounting and
significant accounting experience and that the selectee also provided
more thorough and thoughtful responses to the interview questions.
Complainant, on the other hand, did not have the experience and education
in accounting that the selectee had and it was felt that he was less
than candid during the interview.
The Commission notes that in Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006), the Court held that to infer evidence of pretext from comparative
qualifications, complainant must show (1) that the disparities between
the successful applicant’s and [her/his] own qualifications were “of
such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the candidate selected over the
plaintiff” (Cooper v. Southern Co., 390 F.3d 695, 732 (2004)); or (2)
that [complainant’s] qualifications are ‘clearly superior’ to those
of the selectee (Raad v. Fairbanks North Star Borough School Dist., 323
F.3d 1185, 1194 (9th Cir. 2003)); or (3) that “a reasonable employer
would have found the [complainant] to be significantly better qualified
for the job,” along with other evidence (Aka v. Washington Hospital
Center, 156 F.3d 1284, 1294 (C.A.D.C. 1998) (en banc)). In this case,
we find that Complainant has not demonstrated that he was so better
qualified than the selectee that discrimination could be inferred.
Further with regard to his contentions on appeal, the Commission finds
that Complainant does not dispute that the selectee was better qualified
for the position then he was but instead suggests that the Agency looked
at the case too quickly, that the selectee changed jobs frequently, that
he in fact did complete the required paperwork, and that he thought the
Agency was supposed to be finding him a job. We find that these maters
do not indicate that discriminatory animus was behind his nonselection.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order finding that Complainant failed to show that
discrimination was at issue in his nonselection.
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
_2/8/12_________________
Date
1 Complainant had previously worked for the IRS from November 1972 to
August 1982; however, at the time of this claim, he was an external
candidate.
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0120102896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102896