0120143179
09-22-2016
Aron J.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Aron J.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.
Appeal No. 0120143179
Hearing No. 570-2013-00589X
Agency No. HS-HQ-22306-2012
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's September 25, 2014 final order adopting an EEOC Administrative Judge's decision concerning Complainant's 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency at its facilities in Washington, D.C. and Arlington, Virginia.
On June 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (62) and reprisal (engaging in EEO activity with regard to the first non-selection under the Age Discrimination in Employment Act of 1967) when:
1. On April 18, 2012, Complainant learned that the Agency did not select him for a Telecommunication Specialist position at the National Protection and Programs Directorate (NPPD), advertised under Vacancy Announcement Number FS-624051- SW12.
2. On July 20, 2012, he learned that the Agency did not select him for a General Engineer Physical Scientist position at the Domestic Nuclear Detection Office ("DNDO") advertised under Vacancy Announcement Number GV-676725-WRB-12.
3. On August 18, 2012, he learned that the Agency did not select him for a Telecommunication Specialist position at the NPPD advertised under Vacancy Announcement Number FS-698410-ET12.
4. On September 7, 2012, he learned that the Agency did not select him for a Telecommunication Manager position at the NPPD advertised under Vacancy Announcement Number FS-725491-RB-12.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's April 16, 2014, motion for a decision without a hearing and issued a decision without a hearing on September 5, 2014. The AJ found that there were no material facts in dispute. The AJ noted that the officials within the Human Resources office were not aware of Complainant's EEO activity nor were they aware of his age. The AJ then held that the Agency provided legitimate, nondiscriminatory reasons for its decisions not to select Complainant. As for positions (1), (3) and (4), the AJ noted that Complainant had made the best qualified list. However, there were other candidates who had veteran's preference points that placed them over Complainant for consideration. The AJ indicated that position (2)'s vacancy announcement was cancelled and Complainant only scored at the "well" qualified level as opposed to the "best" qualified level for that position.
The AJ turned to Complainant to establish that the Agency's proffered reasons for his non-selection were pretext for discrimination. Specifically, Complainant asserted that the veteran's preference is a violation of the ADEA. The AJ determined that Complainant's argument was not sufficient to show that the Agency's reasons were pretext for age discrimination. Therefore, the AJ concluded that Complainant failed to establish that he had been subjected to discrimination when he was not selected for any of the four positions for which he applied.
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. Complainant appealed asserting that the AJ's legal analysis of discrimination under the ADEA was not correct with respect to the application of veteran's preference.
ANALYSIS AND FINDINGS
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.
First, we find that complainant has not identified genuine issues of material fact in this case which can only be resolved through a hearing. Instead, on appeal, Complainant essentially argues that the AJ made an error of law. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ correctly held that the Agency provided legitimate, nondiscriminatory reasons for not selecting Complainant for the positions in question. As for position (2), the Human Resources Specialist 1 (Specialist 1) indicated that there was no selection made under the vacancy announced for position (2). As for positions (1), (3) and (4), Complainant applied of the positions and made the "best" qualified list. As for position (1), the Human Resources Specialist 2 (Specialist 2) indicated that Complainant was not referred for consideration noting that there were other candidates who had veteran's preference who were referred for position. Human Resources Specialist 3 (Specialist 3) was involved in the referring of candidates for position (3). She averred that over 100 candidates applied for the position in question, but the only candidates referred for consideration were 12 candidates with veteran's preference. She stated that they did not consider any non-preference candidates based on the number of well-qualified veteran applicants. Finally, as to position (4), Specialist 1 indicated that he was involved in the review process for the instant position. He indicated that Complainant was on the best qualified list, but was he was not forwarded as one of the 13 candidates for further consideration. Of these referred candidates, nine were already federal employees working at the GS-14 level and the other four were entitled to veteran's preference. Complainant was not considered because he did not have veteran's preference. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its decisions.
Complainant does not dispute the credibility of the proffered reasons for his non-selection. Rather, he seems to assert that the application of veteran's preference violated the ADEA. We conclude, however, that the AJ's findings of fact are supported by the substantial evidence in the record and decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The record supports the AJ's determination that the Agency proffered undisputed evidence that the final referrals for selection eliminated Complainant due to veterans' preference rules. Complainant, a non-veteran, did not prove, by a preponderance of the evidence, that his non-selection was motivated by discriminatory animus toward his age. See Morris v. Department of Agriculture, EEOC Request No. 05A40238 (April 22, 2004) (the Commission determined, in adjudicating an age discrimination claim, that the agency articulated a legitimate, non-discriminatory reason for a selection when the evidence showed the selectees were chose because they had veterans' preference and the complainant did not). Therefore, upon review, we find that the AJ correctly concluded that Complainant failed to show that the Agency's actions constituted unlawful discrimination based on age and/or prior EEO activity.
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 implementing the AJ's decision without a hearing finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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