01A23227
12-04-2003
David Filion, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
David Filion v. Department of the Treasury
01A23227
December 4, 2003
.
David Filion,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A23227
Agency No. TD 00-3261
Hearing No. 160-A1-8339X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
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. Sec. 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. Sec. 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a GS-13 Polygraph Examiner at
the agency's Bureau of Alcohol, Tobacco and Firearms in Boston, filed
a formal EEO complaint on September 11, 2000, alleging that the agency
had discriminated against him on the basis of age (54 at relevant time)
when he was not selected to fill either of two vacancies for the position
of Lead Criminal Investigator (Team Leader), GS-1811-14.
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 agency's final order implemented the
AJ's decision. From that order, complainant brings the instant appeal.
LEGAL STANDARD
Age Discrimination
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. Sec. 623(a)(1). When a complainant alleges that he or she has
been disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen
Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decision making
process and had a determinative influence on the outcome." Id.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
Decision Without a Hearing
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. Sec. 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.
ANALYSIS AND FINDINGS
Complainant applied for the position in question in 2000, however, his
application was formally defective in that the knowledge, skills and
abilities (KSA) portion of complainant's application was not prepared in
conformance with the instructions applicants had been given. Rather than
addressing the KSA's individually as was required, complainant gave a
single, narrative answer for all of the KSA's. For this reason, the
ranking panel did not award complainant as high a score as it would have
had the application been completed properly. This resulted in complainant
receiving lower ranking scores than several of the other applicants.
Of the five applicants considered by the ranking panel, three were
placed on the best qualified list. Complainant was not among them.
Ultimately, two of the three applicants listed on the best qualified list
were selected. Their ages were 41 and 51 at the time of the selection.
Complainant does not dispute any of the foregoing. He bases his claim
of age discrimination on statements made by his supervisor, S1, some
years earlier. According to complainant, in 1998 he asked S1 about his
prospects for a promotion to GS-14, mentioning that a promotion would
have a positive impact on complainant's pension benefits. To this,
S1 responded "you've got your high three." This complainant took this
to mean that he would not receive any further promotions.
We conclude that complaint has failed to establish the existence of any
issue of material fact relating to the question of whether the agency's
explanation for his nonselection, i.e. his failure to submit a proper
application, was a pretext designed to conceal discriminatory animus.
The statement by S1 in 1998 indicating that complainant would likely
receive no further promotions simply bears no relation to the 2000
nonselection at issue here. Nor is there evidence that S1 had any
involvement in the selection process or that the selecting officials
had any knowledge of S1's statement.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
December 4, 2003
__________________
Date