01A13837
04-05-2002
Roger A. Dressler, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, (Office of Inspector General), Agency.
Roger A. Dressler v. Department of Housing and Urban Development
01A13837
April 5, 2002
.
Roger A. Dressler,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
(Office of Inspector General),
Agency.
Appeal No. 01A13837
Agency No. 1G-0001
Hearing No. 100-AO-8092X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of 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 he was discriminated against on the basis of his age (date of
birth: July 22, 1953) when, on August 20, 1999, he learned his name was
not referred for the position of Supervisory Auditor, GS-0511-15, because
he failed to provide a transcript of evidence of college accounting work.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that, at all times relevant to the instant complaint,
complainant was employed as a GS-511-14 Auditor, at the Department of
Justice, Office of Inspector General, Audit Division. Complainant applied
for the position in question with the Department of Housing and Urban
Development (HUD), Vacancy Announcement 99-FESB-051. Thirteen applicants
were determined to be eligible candidates, and their names were referred
for selection consideration on a Certificate of Eligibles. Complainant's
name was not referred for consideration, and he was non-selected.
Believing himself to be a victim of discrimination, complainant filed
a formal EEO complaint with the agency on January 11, 2000, alleging
that the agency had discriminated against him as referenced above.
Specifically, complainant alleged that the agency's requirement of a
transcript reflecting 24 hours of accounting coursework to qualify for
the GS-511 series, has a disparate impact on applicants over the age of
40.<1> At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination, under a disparate impact theory. Specifically,
the AJ found that complainant failed to provide a statistical analysis
sufficient to show a significant or substantial impact on his protected
class. The AJ noted that complainant relied on his own affidavit in
which he attempted to present himself as an expert in statistical
analysis and purported to have conducted a statistical analysis of
what he considered the appropriate data from the Office of Personnel
Management (OPM). The AJ concluded that there were no genuine issues
of material fact or credibility that required resolution at a hearing.
Therefore, the AJ issued summary judgment, finding no discrimination.
The agency's final decision implemented the AJ's decision.
On appeal, complainant, through his attorney, contends that the AJ
erred when he failed to consider complainant's statistical analysis in
conjunction with his decision to grant the agency's motion for summary
judgment. Complainant contends that the sufficiency of complainant's
statistical evidence is a substantial issue of material fact that should
have been addressed at a hearing. Complainant argues that his statistical
analysis shows that employees who are 40 years old, or older, are 5.52
times more likely to be adversely impacted by the challenged practice
than those under age 40.
The agency, on the other hand, contends that summary judgment was proper
for the following principal reasons:
Complainant failed to state a claim under the ADEA because he does
not have standing to challenge the alleged discriminatory practice.
Specifically, complainant was injured not by the agency's college-credit
requirement (since he meets this requirement, as evidenced by his own
statement that he earned a bachelor's degree in accounting), but by
his failure to follow instructions to submit a transcript.
Complainant's statistics do not show an age-based disparity in meeting
the agency's education requirement. Although complainant asserts that
employees over age 40 are 5.52 times more likely to fail the requirement
than those under age 40, he gives no explanation for how he arrived
at his conclusion. Additionally, pursuant to the four-fifths rule,
a disparate impact is inferred if the members of the protected class
are selected at less than four-fifths, or 80 percent of the rate of
the non-protected group. Even assuming that complainant's statistics
are accurate, 96.4 percent of �qualified� employees 40 years and older
meet the challenged requirement of 24 hours of accounting credit.
Similarly, 97.5 percent of �qualified� employees under age 40 meet
the requirement. Therefore, the success rate of applicants age 40 and
over is 98.87 percent of the success rate of those under 40 years old,
and the four-fifths rule is not violated.
The applicant pool in this case shows no disparate impact, in that
every applicant for the position was over age 40 at the time, and all
13 applicants whose names were placed on the best-qualified list were
age 44 or older.
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 regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In the instant case, complainant contends that he was discriminated
against, under a theory of disparate impact, when the agency required
that applicants for the position in question submit a transcript
reflecting college coursework in accounting. However, the record
reveals, and complainant does not dispute, that he has satisfied the
requisite coursework, and that what prevented him from submitting
a transcript was merely his college's failure to send him a copy
of it by the time the job announcement closed. Complainant cannot
pursue a generalized grievance that members of one protected group
are afforded benefits not offered to other protected groups, unless he
further alleges some specific injury to him as a result of the alleged
discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997) (claim that nurse practitioners in one unit received
more favorable treatment than nurse practitioners in other units was a
generalized grievance); Rodriguez v. Department of the Treasury, EEOC
Appeal No. 01970736 (August 28, 1997)(claim that there was an imbalance
in favoring of African-Americans, against Hispanics, in development and
promotion opportunities was a generalized grievance purportedly shared
by all Hispanic co-workers and therefore failed to state a claim).
Complainant's own assertion directly contradicts his assertion that
he suffered an injury as a result of the practice which he claims is
discriminatory. Although complainant undeniably suffered the adverse
action of being denied consideration for the position in question, the
record clearly indicates that complainant's non-consideration resulted
from his failure to submit a transcript, and not from the fact that
a transcript reflecting college accounting coursework was required.
In fact, the record clearly indicates that complainant met the basic
qualification as evidenced by his statement that he earned a bachelor's
Degree in accounting from the University of Urbana in 1980. See ROI,
Exhibit 16a, p. 31. Therefore, because complainant did not suffer as
a result of the alleged discriminatory practice, his complaint fails to
state a claim, and we do not reach the question of whether he satisfied
the requirements for establishing a prima facie case of disparate impact.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
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 5, 2002
__________________
Date
1 Complainant has chosen to proceed only
under a theory of disparate impact. See Record of Investigation ROI),
Complainant's Motion for Summary Judgment, p. 2.