0120161565
10-11-2016
Aron J.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), 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
(Transportation Security Administration),
Agency.
Appeal No. 0120161565
Hearing No. 570-2014-00234X
Agency Nos. HS-TSA-01116-2013
HS-TSA-01030-2013
HS-TSA-01300-2013
HS-TSA-00166-2014
DECISION
On April 20, 2016, Complainant filed an appeal from the Equal Employment Opporutnity Commission Administrative Judge's (AJ) decision dated April 13, 2016 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. Subsequently, the Agency issued its final order on May 13, 2016, implementing the AJ's decision. 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 applied for several positions with the Agency but was not selected for them. As such, he filed four EEO complaints alleging discrimination when he was not hired.
Complainant filed two EEO complaints which were consolidated by the Agency alleging that it discriminated against him on the bases of race (Slavic), national origin (United States), religion (Catholic), and age (63) when,
1. On April 9, 2013, he was notified by the Agency that he was not qualified for a Supervisory Equal Employment Opportunity Specialist, SV-0260, (Band J) position, Job Announcement HQ-OCL-TA56-13-595272; ("Position 1 ");
2. On an unspecified date(s), he was notified by the Agency that he was not qualified for the Equal Employment Manager, SV-0260 (Band-L) position, Job Announcement HQ-OCL-TA56-12-559846 (Position 2).
3. On March 11, 2013, he was notified that he was not selected for the Equal Employment Specialist, SV-0260, (Band J) position, Job Announcement HQ-OCLTA56-12-559846 (Position 3).
He then filed a third complaint alleging that he was discriminated against based on age and reprisal (prior EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 namely, Agency Nos. HS-TSA-01116-2013 and HS-TSA-01030-2013) when on April 29, 2013, Complainant was notified that he was ineligible to apply for the Equal Employment Manager position advertised via announcement HQOCL0TA56-61110 (Position 4). This complaint was consolidated by the Agency with the pending EEO complaints. Following the investigation, Complainant requested a hearing before the EEOC AJ.
Complainant filed a fourth complaint alleging discrimination on the bases of race (Asian/White), religion, national origin, age and reprisal (prior EEO activity), when on November 13, 2013, Complainant became aware that he was not selected for an Equal Employment Opportunity position when he was notified by HR Access that he was not placed on the "Best Qualified" Group for an Equal Employment Specialist, SV- 260 (Band-H) position, Vacancy Announcement Number: HQ-OCL-TA56-13-678570 (Position 5).
The Agency moved for summary judgment in October 2014. Complainant responded. On October 29, 2014, the AJ granted the parties' request to consolidate all of the three complaints with the fourth complaint. Subsequently, on December 22, 2014, the Agency filed a motion for a decision without a hearing. Complainant responded on December 30, 2014. The AJ issued a decision without a hearing on April 13, 2016.
Assuming arguendo that Complainant established a prima facie case of discrimination, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions. The Agency noted that Complainant failed to rank as "Best Qualified" for any of the positions in question to be referred to the selecting official for consideration. As such, Complainant was not selected for the positions. Further, as to Position 3, Complainant was initially placed on the "Best Qualified" list but was removed following a further review of his resume which did not support his self-assessment. The AJ noted that his resume did not support the experience he claimed to have. As for Position (4), the AJ held that there was no record of Complainant applying for that position and Complainant did not present evidence to show that applied. Finding that the Agency has met its burden, the AJ turned to Complainant to show that the Agency's reasons were pretext for discrimination. The AJ noted that Complainant had not shown that the Agency's finding that he was not "Best Qualified" for any of the positions lacked credence. Complainant asserted on the self-assessment that he had EEO related job experience which was not reflected in his resume. The AJ held that Complainant did not dispute that the selectees for the positions in question possessed several years of professional work experience in EEO related positions at the time of their selections. The AJ indicated that Complainant alleged that the Agency failed to recruit "older citizens" and gave preference to veterans and recent graduates. However, the AJ held that Complainant failed to present any facts or evidence to establish that the Agency's reasons were pretext for discrimination based on his protected bases. Therefore, the AJ concluded that Complainant failed to show that he had been subjected to discrimination in violation of Title VII and/or the ADEA.
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. This appeal followed.
ANALYSIS AND FINDINGS
We must 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 order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Our review indicates that the record was adequately developed without a hearing.
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. The record supported the AJ's determination that the Agency did not rate Complainant as "Best Qualified" for any of the positions at issue and, therefore, Complainant was not given further consideration for Positions (1), (2), (3), and (5). As for Position (4), Complainant failed to submit an application and, as such, was not considered for that position. Finding that the Agency has articulated legitimate, nondiscriminatory reasons for not considering Complainant for the positions in question, we turn to Complainant to show that the Agency's reasons were pretext for discrimination. 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 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
October 11, 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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