0120121722
08-29-2012
David L. Luttrell, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
David L. Luttrell,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120121722
Hearing No. 490-2011-00069X
Agency No. FSA-2010-00694
DECISION
Complainant filed an appeal from the Agency's February 24, 2012 final order concerning his 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether the AJ properly found no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Technician-7 at the Agency's Farm Services Agency (FSA), Alcorn-Tishomingo Office in Corinth, Mississippi. He has worked for the Agency for ten years.
Complainant filed a formal EEO complaint on July 3, 2010, alleging that the Agency discriminated against him, on the basis of age (57) when, on March 22, 2010, Complainant learned that the Agency did not select him for two promotional opportunities under the Federal Career Intern Program.
As further background, on November 20, 2009, the Agency advertised the two trainee positions (Loan Assistant/Specialist) under Vacancy Announcement Number UK 248058. The vacancy announcement indicated that the positions would be filled through the Career Intern Program.
The announcement was accompanied by a flyer that detailed how candidates should apply. All applications for the vacancy were to be submitted electronically through the Application Manager to the Human Resources Office at the Beacon Facility in Kansas City, Missouri. The instructions stated that candidates must complete the Career Intern Assessment found in the online Application Manager, which required the creation of an online account.
On December 1, 2009, Complainant applied for the two positions. The record confirms that the Agency received Complainant's electronic application and that his application was added to USA staffing registry on December 1, 2009. Complainant's application included his transcripts and referenced the dates that Complainant graduated high school and received his Bachelor's degree.
The Human Resource Specialist at the Beacon Facility (S1) was responsible for reviewing applicant materials "to see if they qualified for the Career Intern Program and for sending a list of qualified applications to the state office for possible interviews and selection." S1 averred that, although Complainant submitted the Online Career Intern Assessment, he did not send his application to the state office to be included in the application package that was forwarded to her. S1 avers that she was not aware of Complainant's age.
On January 11, 2010, S1 prepared the Initial Career Intern Listing of candidates she deemed eligible for consideration. As of that date, Complainant's application had not been "rated." S1 averred that Complainant's application was not in the package that she received from the "state office and merit specialist." It is undisputed that S1 did not include Complainant and one other eligible candidate on the January 11, 2010 list of candidates.
The record shows that on March 8, 2010, Complainant contacted the FSA Kansas City Office to inquire about the status of his application. Complainant was informed that his name had been omitted from the Career Intern Certificate. S1 stated that this was an unfortunate oversight and she offered to create an amended list, adding Complainant's name. S1 then forwarded Complainant's application to the recommending official for consideration.
The Farm Loan Program Chief (S2) was the recommending official. He says Complainant's information was presented to him on March 22, 2010, but, by then, the selection process was completed. Specifically, he says that the security clearances on the selectees had been completed by March 16, 2010. He also averred that he did not know Complainant's age.
On or around March 29, 2010, Complainant received the formal notice that he had not been selected.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved for Summary Judgment on December 16, 2011; and Complainant filed his response on January 25, 2012.
The AJ found that the case alleged discrimination under the disparate treatment theory of discrimination. The AJ also found that the record was adequate and that no further development of the record was necessary. The AJ stated that the hearing record consists of the complaint file and the parties requests for extension.
The AJ found that the Agency articulated legitimate and nondiscriminatory reasons for its selection decision. The AJ reasoned that "Complainant's application was not initially forward to the Mississippi FSA state office because it had not been received in the package of applications that the HR specialist received" and that "by the time the Agency learned of Complainant's application, selections for the position had been made."
The AJ stated that there is no genuine dispute with respect to a material fact and no genuine issue as to credibility which would warrant a hearing. The AJ concluded that the available evidence does not support Complainant's allegations of age discrimination and issued a decision without a hearing, finding no discrimination.
Complainant appealed directly from the AJ's decision, which became the Agency's final action. The Agency subsequently adopted the AJ decision.
CONTENTIONS ON APPEAL
On appeal, Complainant essentially argues that the AJ erred in issuing a decision without a hearing because he says there is a genuine dispute as to why his application was not referred since he met the qualifications. Specifically, Complainant took issue with the AJ's finding that management was unaware of his age. Complainant also questions whether the Agency's stated reason is legitimate because the vacancy announcement did not say that candidates had to forward their applications to the state FEA.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, 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) (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").
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 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
On appeal, Complainant contends that the AJ erred in entering summary judgment because he believes the reasons offered by management officials were not credible. He contends that the Agency officials were aware of his age because his age could be discerned from his application. He does not dispute, however, that the selection process was already underway when his application reached the recommending official.
Under the ADEA, it is unlawful for an employer to treat an individual over age 40 less favorably because of his or her age. The ADEA, like Title VII of the Civil Rights Act, requires that all personnel actions be made free of unlawful discrimination. 29 U.S.C. 633(a).
As the Supreme Court has explained, the ultimate question in every employment discrimination case is whether the plaintiff was the victim of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000).
Generally, a complainant may establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. The record shows that Complainant was over age 40. For purposes of this analysis, we will assume that the Agency was aware of his age because his application gave numerous indicators of his age. Looking at the evidence in the light most favorable to Complainant, we will also assume that a sufficient nexus exists between his non-selection and his age because the persons selected were substantially younger; and the Agency's vacancy announcement indicated an intent to make job offers to recent college graduates.
The AJ found that the prima facie inquiry may be dispensed with in this case because the AJ found that the Agency has articulated legitimate and nondiscriminatory reasons for its selection decision (Complainant's application was not initially forwarded to the Mississippi FSA state office because it had not been received in the package of applications that the HR specialist received).
In this case, the record supports S1's statement that Complainant's application was not part of the initial package of applications that the HR specialist relayed to the recommending official. The AJ referenced the declarations submitted by various Agency officials to find that Complainant failed to properly submit his application and that consequently, his application had not been available for review. The recommending official also conceded that he did not make any comparisons between Complainant's qualifications to those selectees, because the selection process was already underway and the security clearances had been issued. Consequently, we find that the Agency has offered a legitimate, non-discriminatory reason for its actions and that there is no evidence to establish pretext.
After a careful review of the record, we discern no basis to disturb the AJ's finding that the entry of summary judgment was appropriate in this case.
CONCLUSION
Accordingly, after our own careful de novo review of the record, the Commission AFFIRMS the Agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 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 (S0610)
You have the right to file such 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 (Z0610)
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
August 29, 2012
__________________
Date
2
0120121722
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121722