01A13756
09-18-2002
David Foster, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
David Foster v. Department of Commerce
01A13756
09-18-02
.
David Foster,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A13756
Agency No. 99-56-00489
Hearing No. 100-AO-7189X
DECISION
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 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that complainant, a Patent Examiner at the agency's
Technology Center, United States Patent and Trademark Office facility,
filed a formal EEO complaint on April 26, 1999, alleging that the
agency had discriminated against him on the bases of sex (male) and age
(D.O.B. September 10, 1929) when he was not selected for the position
of Employee Relations Specialist, GS-230012/13, advertised under Vacancy
Announcement Number PTO-98-197.
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 and sex discrimination. Specifically, the AJ found
that complainant failed to demonstrate that he was qualified for the
position in question because he did not make the best qualified list.
The AJ further found that, assuming arguendo that complainant had
established a prima facie case, the agency had articulated a legitimate,
nondiscriminatory reason for its action, namely that complainant was not
qualified for the position. The AJ found complainant failed to present
any evidence to establish that the agency's reason was pretext for
discrimination. The agency's final order implemented the AJ's decision.
From this decision, complainant appeals.
On appeal, complainant contends that the AJ erred when she granted
summary judgment. Specifically, complainant contends that the AJ erred in
admitting evidence submitted by the agency after the close of discovery.
Complainant maintains that under 29 C.F.R. � 1614.109(g) a party moving
for summary judgment may only refer to facts already in the record
to support its motion, and in the present case the AJ permitted the
agency to support its motion with affidavits that were not yet part of
the record. Complainant further maintains that a material issue of fact
exists concerning whether or not his experience was fairly evaluated by
the selecting panel. He argues that the evidence of record shows that
he should have received a higher score for his experience in the use of
alternative dispute resolution (ADR). In response, the agency argues
that complainant's position concerning the admissibility of evidence
submitted after the close of discovery is not supported by precedent,
and further, that the AJ's order addressing motions for a decision
without a hearing contemplates the inclusion of affidavits submitted
with the motion. Regarding the selecting panel's evaluation of his
ADR experience, the agency says that even had complainant received the
highest available score for such experience, his overall score would
still not have been sufficient to place him on the best qualified list.
The agency therefore requests that we affirm its final order.
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. Complainant contends that the regulation governing
decisions without a hearing �differs from Rule 56 of the Federal Rules
of Civil Procedure which allows the use of affidavits in support of
a Motion for Summary Judgment.� Complainant's Appellate Brief, p.2.
Complainant cites no precedent to support this contention. We note that
the Commission has long held that the regulations governing decisions
without a hearing are �patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure.� Key
v. United States Postal Service, EEOC Appeal No. 07A2001 (August 2,
2002). In addition, complainant's position that there exists a strict
prohibition of evidence following the close of discovery is inconsistent
with the regulations which state that the �rules of evidence shall not
be applied strictly,� 29 C.F.R. � 1614.109(e), and further allow for the
exclusion of irrelevant or repetitious evidence, but make no specific
prohibition against evidence submitted after the close of discovery. Id.
We therefore find complainant's argument to be without merit.
Regarding the selection panel's evaluation of complainant's ADR
experience, we find that complainant has not established the existence
of a material issue of fact. Had he received the full eight points
for such experience, instead of the six he received from the panel, his
overall score would have been ninety-one on the GS-12 rating sheet and
ninety-three on the GS-13 rating sheet. It is undisputed, however, that
the minimum score to make the best qualified list was ninety three for
the GS-12 position, and ninety six for the GS-13 position. Therefore,
even assuming arguendo his entitlement to a higher score for his ADR
experience, his overall scores would still have been too low to make
the best qualified list. Accordingly, any dispute concerning whether
or not he was given sufficient points for his ADR experience does not
amount to a material issue. We therefore discern no basis to disturb
the AJ's decision.
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. � 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
____09-18-02______________
Date