0120082506
09-10-2009
Benjamin D. Kirman, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Benjamin D. Kirman,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120082506
Hearing No. 120-2005-00153X
Agency No. 04-0003-SSA
DECISION
On April 14, 2008, complainant filed an appeal from the agency's March
20, 2008 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly found
that complainant had not been discriminated against.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Program Manager, GS-14, at the agency's Office of Central
Operations in Baltimore, Maryland. On October 14, 2003, complainant
filed an EEO complaint alleging that he was discriminated against on the
bases of race (white), sex (male), religion (Jewish), and age (61) when:
1. in May 27, 2003, he was not selected for the position of Deputy
Assistant Associate Commissioner for Management and Operations Support in
the Office of Central Operations (OCO), posted under Vacancy Announcement
Number (VAN) F-751; and
2. on July 15, 2001, he was involuntarily reassigned from his position
as Personnel Officer for the Office of Central Operations to a Program
Manager position in OCO with undefined job duties.
On December 18, 2003, the agency issued a letter of partial acceptance
and partial dismissal of complainant's complaint in which it accepted
issue #1 for investigation. It dismissed issue #2 for failure to contact
an EEO Counselor within 45 days of the alleged discriminatory event,
citing 29 C.F.R. � 1614.107(a)(2).1
At the conclusion of the investigation, complainant was provided 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. During the hearings process, complainant amended
his complaint to include the claim that he had been discriminated against
on basis of his disability (physical) as well. After both parties
submitted motions for a decision without a hearing, the AJ assigned to
the case issued a decision without a hearing on February 22, 2008.
In his decision, the AJ found that complainant was one of 19 applicants
who made the Best Qualified list for VAN F-751, but was not selected in
favor of the selectee (white, female, no known disability, religion not
known, age 54). The selection process was based on interviews of each
individual on the Best Qualified list and supervisory recommendations.
Based on the interviews and recommendations, those on the Best Qualified
list were numerically ranked and placed into four groups. The selectee
and another applicant were in the highest group. Complainant was in the
second highest group. The rankings were forwarded to the recommending
official, who chose the top ranked candidate, the selectee, and forwarded
her name to the selecting official, who accepted that recommendation
and chose the selectee for the position.
The AJ concluded that complainant had not shown that he was substantially
limited in a major life activity by his physical condition, and therefore
did not state a prima facie case of disability discrimination. The AJ
found that complainant had established prima facie cases of race, sex,
religion and age discrimination. He further concluded that the agency
had put forth legitimate, nondiscriminatory reasons for its selection of
the selectee, namely that she was the top ranked candidate, and therefore
the best qualified for the position. The AJ found that complainant had
not shown that reason to be pretext. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
The Commission has no record of complainant submitting any contentions
in support of his appeal, despite a stated intent to do so. The agency
summarily urged the Commission to affirm its final order implementing
the AJ's decision.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy
v. Department of the Army, EEOC Appeal No. 01A04099 (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).
We find that the AJ's issuance of a decision without a hearing was
appropriate. Our review of the record finds that no genuine issue
of material fact was in dispute such that a hearing was necessary to
resolve the uncertainty. We also find that, assuming complainant had
made out his prima facie cases of discrimination, the AJ properly found
that the agency had put forth legitimate, nondiscriminatory reasons
for its selection of the selectee, which complainant had not shown to
be pretext for discrimination.2 Complainant has not shown that the
disparities in qualifications between him and the selectee are "of such
weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the [selectee] over [him] for
the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Therefore, based on a thorough review of the record,
we find that the AJ's conclusion that complainant was not discriminated
against based on his race, sex, religion, age or disability, and the
agency's implementation of that decision, was correct. We AFFIRM the
agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
______9/10/09____________
Date
1 We affirm the agency's dismissal of issue #2 on this basis. The record
indicates that complainant contacted an EEO counselor in 2003 about his
2001 reassignment. He presented no persuasive evidence that he did not
reasonably suspected discrimination regarding his reassignment until
the 45 days that preceded his 2003 counselor contact.
2 We assume, for the purposes of analysis only, without finding such,
that complainant is an individual with a disability and put forth a
prima facie case of disability discrimination.
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0120082506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082506