0120110233
01-11-2012
Frederick J. Killian, Complainant, v. Leon E. Panetta, Secretary, Department of Defense, Agency.
Frederick J. Killian,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120110233
Hearing No. 570-2010-00533X
Agency No. DEFY09087
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s September 23, 2010 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. Our review is de novo.
29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
retired Agency employee. On February 10, 2009, the Agency’s Education
Activity in Arlington, Virginia issued a vacancy announcement for the
position of Supervisory Area Educational Chief. There were two vacancies,
one in Europe and one in the Pacific, under Vacancy Announcement
09-HQ-015-EJ. Complainant, who had overseas experience with the Agency
as a superintendent of education and as a school principal, applied for
the position. He was rated qualified for the position, referred for
the position but was not selected for an interview. Approximately 19
applicants were referred for the position, nine were interviewed and two
were selected. On June 30, 2009 Complainant was informed that he was not
selected for either position. On September 28, 2009, after contacting
an EEO Counselor, Complainant filed a formal complaint alleging that
the Agency discriminated against him on the basis of age (70) when he
was not selected for the position of Supervisory Area Education Chief.
The Agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, Complainant requested that the matter
be assigned to an EEOC Administrative Judge (AJ) for a hearing. The AJ
issued a decision without a hearing, finding that Complainant had failed
to adduce evidence of discrimination. The Agency's final order fully
implemented the AJ's decision. From that order, Complainant brings the
instant appeal.
ANALYSIS AND FINDINGS
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,
summary judgment is not appropriate. For the reasons set forth below,
we find that issuance of a decision without a hearing was appropriate
because there were no material factual issues in dispute
To prevail in a disparate treatment claim, Complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish
a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with where the
Agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 7ll, 713-17 (1983). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993).
In this case, the Agency explains that Complainant was not selected to be
interviewed for the position because he did not have recent experience
as a “district-level superintendent.” The selectees did have such
experience. The selecting official described her selection criteria
as follows:
I looked at a number of factors, including: whether the applicant had
district-level superintendent experience, whether the experience was
recent, and whether the applicant was successful in that position. The
primary consideration in my mind was whether the superintendent had
current experience. This is critical for a number of reasons including the
fact that there have been many changes in education over the last 5 years.
Report of Investigation (ROI) at 352-53.
At the time of the interview selection, Complainant did not have then
current experience as a district-level superintendent and, accordingly,
was not selected. This is a legitimate, nondiscriminatory reason for
the Agency’s action. Complainant has failed to adduce any evidence
that it is a pretext designed to conceal discriminatory animus.
Complainant contends that the Agency’s use of recent experience as the
primary criterion for selection was improper and designed to exclude
him from the selection process because of his age. This contention
is based on nothing other than speculation. There is no witness with
first hand knowledge of the selection process whose testimony supports
this contention.
Complainant also argues that the ranking score he received was improperly
lowered to prevent him from being selected. There is no evidence of
this but even if that were the case, proof that Complainant’s score
was lowered would be immaterial. This is so because Complainant’s
score was sufficiently high that his application was included among
the 19 who were considered for an interview. The selecting official
testified in her affidavit that ranking scores did not enter into the
determination of which candidates would be interviewed. ROI at 354.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 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 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 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 (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
January 11, 2012
__________________
Date
2
0120110233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120110233