0120140038
03-11-2016
Fidel S.,1 Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fidel S.,1
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120140038
Hearing No. 560-2012-00213X
Agency No. HUD-00131-2011
DECISION
On September 25, 2013, Complainant filed an appeal from the Agency's August 20, 2013, 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., and 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 Agency's final order is AFFIRMED.
ISSUES PRESENTED
The issues presented herein are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to issue a ruling without a hearing was proper; and (2) whether Complainant proved discrimination when he was not selected for a position with the Agency.
BACKGROUND
Complainant retired from the Agency in May 2002, after having worked as a Construction Analyst, GS-0828-13, at the Agency's St. Louis Office in St. Louis, Missouri. On November 15, 2011, he filed a formal EEO complaint alleging discrimination on the bases of race (Caucasian), sex (male), age (66), and reprisal (prior EEO activity) when, on September 12, 2011, he learned he was not selected for the position of General Engineer, GS-0801-12/13, in the St. Louis Office of Public and Indian Housing, announced in vacancy numbers H-II-MP-499707-VLIP and H-II-DE-499702-VLIP.
The Agency accepted the complaint for investigation and at the conclusion thereof provided Complainant a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing.
Complainant filed a Motion for Summary Judgment on February 22, 2013. The AJ denied that Motion on March 19, 2013. Complainant again submitted a Motion for Summary Judgment on May 8, 2013, to which the Agency responded with its own Motion for Summary Judgment on May 13, 2013. The AJ issued a decision without a hearing on August 8, 2013. In the decision, the AJ found that Complainant failed to prove discrimination as alleged. Thereafter, the Agency issued a final order adopting in full the AJ's finding. In response, Complainant filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the Agency's opposition to his appeal is a "concoction of mischaracterizations and manufactured facts clearly at odds with the truth." See Complainant's Brief at 1. He further contends that the Agency failed to file its reply to his appeal within a timely manner. Id. at 2. He notes that during the examination of the selecting official (SO) at the Merit Systems Protection Board (MSPB) hearing, the SO confirmed that another agency official was more qualified than she to evaluate his application as well as that of the Selectee.2 Id. at 3.
Complainant also contends that the AJ relied on an incomplete record, and based her decision on the Agency's untruthful representation alleging that the record was adequate. Id. at 5. Finally, Complainant contends that the actions of the Agency's attorney should be investigated by the Office of Special Counsel (OSC) for improper conduct and violation of Complainant's rights. Id. at 6.
For its part, the Agency asserts that the AJ's decision issued without a hearing was proper, and it requests that we affirm its final order.3
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both 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 or reject the AJ's, and the 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
We must first consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. 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); Murphy v. Dep't 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find that both parties were given ample notice of the Motions for Summary Judgment, as both parties submitted Motions for Summary Judgment to the AJ. There are no issues of credibility regarding any material fact that need to be resolved through the taking of live testimony. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Disparate treatment discrimination
Complainant alleges discrimination on the bases of race, sex, age, and reprisal when he was not selected for a position with the Agency, nine years after his voluntary retirement from the Agency. In the absence of direct evidence of discrimination, as is the case here, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, Complainant must 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. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume for purposes of our analysis that Complainant has established a prima facie case of discrimination with respect to all four bases.
We now turn our attention to whether the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant for the position of General Engineer. Burdine at 253. The Agency stated, and the AJ found, that Complainant was not selected in favor of the Selectee because the Selectee had an Engineering degree and more relevant years of engineering experience. Moreover, the AJ also found that the Selectee had more recent and relevant job experience, whereas Complainant had been retired since 2002. Further, the SO stated that she was looking for someone with an actual Engineering degree, which the Selectee had, whereas Complainant did not. See SO's Affidavit (Aff.) at 21. In other words, the Agency's stated reasons indicate that the SO believed the Selectee to be more qualified than Complainant for the selection at issue. Id. at 22.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of his race, sex, age, or prior EEO activity.
Here, the Agency stated that the Selectee was selected over Complainant because the Selectee was better qualified. In an attempt to prove pretext, Complainant essentially argues that he should have been selected over the Selectee, and claims that he was more qualified, despite his lack of an Engineering degree, due to his years of experience at the Agency as a Construction Analyst. Complainant contended that the SO admitted (in the context of the MSPB proceeding) that another Agency official was better situated to evaluate his application as well as that of the Selectee. However, Complainant provides no evidence indicating that the SO was not sufficiently informed or otherwise qualified to make a decision as to who should have been selected for the position at issue herein.
Additionally, Complainant believes that he should have been selected based on being eligible for non-competitive re-employment as a veteran. However, we note that the Commission does not have jurisdiction over the laws and regulations governing hiring based on veterans' preference. Any alleged violation of this sort is not in and of itself probative evidence of intent to discriminate on a basis under the laws enforced by the Commission.
We will not second-guess an Agency's decisions involving selection of personnel unless there is evidence of a discriminatory or retaliatory motivation on the part of the officials responsible for the selection. See Burdine, 450 U.S. at 259. Such evidence can take the form of a showing that Complainant's qualifications for the position at issue were plainly superior to those of the selectee. Guida v. U.S. Postal Serv., EEOC Appeal No. 01923174 (Apr. 15, 1993). Nowhere in the record is there an indication that such evidence exists.
Complainant also attempts to prove pretext by contending that the Agency has a history of hiring minorities and younger applicants over members of his protected classes. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). That is especially so in this case where the evidence shows that the Selectee was of the same race and sex as Complainant and was 59 years old, within the protected age group and only arguably significantly younger than Complainant. Upon review, we find that Complainant has failed to meet his burden to show that the Agency's stated reasons were pretexts for discrimination.
Finally, if Complainant believes that the Office of Special Counsel (OSC) should look into this matter because the Agency allegedly engaged in improper conduct and violated his rights, then he should raise those issues before OSC, not the Commission.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing, and properly found that Complainant failed to prove discrimination by preponderant evidence when he was not selected for re-employment by the Agency. Accordingly, the Agency's final order implementing the AJ's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 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
March 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.
2 This case went before the MSPB for a determination as to whether the Agency hiring practices in this matter violated the Veterans Employees Opportunities Act of 1998 and the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. �� 4301-4333) (USERRA). MSPB Docket No. CH-4324-12-0740-I-1 (Aug. 13, 2014).
3 Although Complainant argued that the Agency's opposition brief was filed in an untimely manner, we exercise our discretion not to exclude the brief as it merely restates the position contained in the Agency's final order, namely, that Complainant failed to prove discrimination.
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