James F. Carey, Complainant,v.Steven Robert Blust, Chairman, Federal Maritime Commission, Agency.

Equal Employment Opportunity CommissionJan 13, 2009
0120070136 (E.E.O.C. Jan. 13, 2009)

0120070136

01-13-2009

James F. Carey, Complainant, v. Steven Robert Blust, Chairman, Federal Maritime Commission, Agency.


James F. Carey,

Complainant,

v.

Steven Robert Blust,

Chairman,

Federal Maritime Commission,

Agency.

Appeal No. 0120070136

Hearing No. 100-2004-00811X

Agency No. FMC0401

DECISION

On October 10, 2006, complainant filed an appeal from the agency's

September 12, 2006, 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 appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission VACATES the agency's final order.

At the time of events giving rise to this complaint, complainant worked

as an Area Representative, Bureau of Enforcement in Washington, D.C.

On March 16, 2004, complainant filed the instant EEO complaint. Therein,

complainant claimed that he was discriminated against on the basis of age

(61) when he was denied Veterans' Preference when he was not selected

for the position of Assistant Secretary, G-301-14/15.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The agency filed a motion for a decision without

a hearing on April 5, 2005, and complainant filed an "Opposition to

Agency's Motion for Summary Judgment and Complainant's Cross Motion for

a Summary Judgment" on April 22, 2005. The AJ issued a decision without

a hearing on August 29, 2006 in favor of the agency.

In his decision, the AJ first indicated that complainant's April 22, 2005

filing was not timely. The AJ found that complainant failed to show good

cause why it should nevertheless be considered. The AJ then found that

complainant failed to demonstrate that he was treated less favorably

than other similarly situated employees because of his age.1 The AJ

further found that the agency articulated legitimate, nondiscriminatory

reasons for its actions. Specifically, the Selecting Official (59

years old) stated that he chose the selectee (38 years old) instead of

complainant because "[her] application and interview, . . . indicated

that she possesses experience and background that demonstrate her

abilities to meet or exceed the quality ranking factors set forth in the

vacancy announcement. [Selectee], a Certified SES Candidate, presented

credentials well beyond those presented by [complainant]."

The AJ also addressed complainant's assertion that, during the interview

process, the Selecting Official inquired whether complainant would be

retiring soon. The AJ noted, however, that the Selecting Official

provided a different rendition of what actually transpired. The AJ

further found that with respect to the performance evaluations under

consideration, complainant was rated "highly successful" and the selectee

was rated "outstanding." The AJ addressed complainant's assertion that

the selectee was not qualified for the subject position, especially

when compared to his qualifications. The AJ noted that complainant's

perception of his own work performance is not relevant in the analysis.

The AJ additionally found that complainant did not show that his

qualifications were observably superior to the qualifications of the

candidate selected for the subject vacancy. The AJ found that there

were no genuine issues of material fact, and concluded with a finding

of no discrimination. The agency subsequently issued a final order

adopting the AJ's finding that complainant failed to prove that he was

subjected to discrimination as alleged.

On appeal, complainant's primary argument is that his "Opposition to

Agency's Motion for Summary Judgment and Complainant's Cross Motion for

a Summary Judgment," filed on April 22, 2005, was improperly deemed by

the AJ as untimely filed. In reply, the agency initially contends that

even assuming the Opposition was timely filed, it is clear that the AJ

did in fact consider the Opposition because the AJ specifically cited to

it in the decision. The agency additionally contends that complainant

has failed to make any substantive argument on appeal as to why the AJ's

decision was incorrect, nor has complainant demonstrated that the record

contains a genuine issue of material fact which requires resolution at

a hearing.

As an initial matter we note that, as this is an appeal from a FAD issued

without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's

decision is subject to de novo review by the Commission. 29 C.F.R. �

1614.405(a).

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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

The courts have been clear that summary judgment is not to be used

as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768

(1st Cir. 1975). The Commission has noted that when a party submits

an affidavit and credibility is at issue, "there is a need for

strident cross-examination and summary judgment on such evidence is

improper." Pedersen v. Department of Justice, EEOC Request No. 05940339

(February 24, 1995). "Truncation of this process, while material

facts are still in dispute and the credibility of witnesses is still

ripe for challenge, improperly deprives complainant of a full and fair

investigation of her claims." Mi S. Bang v. United States Postal Service,

EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United

States Postal Service, EEOC Request No. 05950628 (October 31, 1996);

Chronister v. United States Postal Service, EEOC Request No. 05940578

(April 23, 1995). The hearing process is intended to be an extension of

the investigative process, designed to "ensure that the parties have a

fair and reasonable opportunity to explain and supplement the record and

to examine and cross-examine witnesses." See EEOC Management Directive

(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �

1614.109(d) and (e).

Judgment as a matter of law should not have been granted in this

case. The record contains a genuine issue which must be resolved at

trial. Specifically, complainant asserted during the investigation

of his complaint that two individuals whom he identified, had advised

him that a "young female" was going to be selected for the Assistant

Secretary position. Complainant further stated that just before

the interview ended, the Selecting Official asked him the question:

"How old are you?;" and that the Selecting Official then rephrased the

question as an inquiry into how long complainant expected to work before

retiring. Complainant asserted that the Selecting Official then stated

that complainant was "an old fart" like himself (the Selecting Official)

and that he "would probably be gone within five years." Complainant also

asserted his belief that the selection decision had already been made

at the time he was interviewed (an assertion which the agency argues

would be evidence that age was not a factor in the decision).

In his decision, the AJ addressed these alleged age-based comments,

noting that the Selecting Official provided a different description

of what he had said to complainant. The AJ appears to have improperly

credited the Selecting Official's version of what transpired.2

In ruling on a Motion for a Decision Without a Hearing, the evidence

of the non-moving party must be believed and all justifiable inferences

must be drawn in the non-moving party's favor. Therefore, assuming the

age-based comments were made, a reasonable fact-finder could conclude that

the Selecting Official believed that complainant should not be selected

because of his protected status.3 This case contains conflicting evidence

as to what the real motivation was for not selecting complainant.

In order to resolve this conflict, the fact finder must determine

whether the agency's explanation is more credible than complainant's.4

Accordingly, in this case, issuance of a decision without a hearing was

not warranted under 29 C.F.R. � 1614.109(g). The Commission VACATES the

agency's final order and REMANDS the matter for a hearing in accordance

with this decision and the ORDER below.

ORDER

The agency shall submit to the Hearings Unit of the Washington Field

Office the request for a hearing within fifteen (15) calendar days of

the date this decision becomes final. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within fifteen (15)

calendar days of the date this decision becomes final. The agency shall

provide written notification to the Compliance Officer at the address set

forth below that the complaint file has been transmitted to the Hearings

Unit. Thereafter, the Administrative Judge shall issue a decision on

the complaint in accordance with 29 C.F.R. � 1614.109 and the agency

shall issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (S0408)

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 (Z0408)

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

January 13, 2009

__________________

Date

1 The Commission notes that it is not necessary for complainant to rely

strictly on comparative evidence in order to establish an inference of

discriminatory motivation necessary to support a prima facie case. See

Means v. Department of Housing and Urban Development, EEOC Appeal

No. 01996893 (December 21, 2001).

2 The agency itself stated in its Motion for Summary Judgment that the

Selecting Official "denies Complainant's account of the conversation,

but for the purposes of the Motion for Summary Judgment we will assume

this account as undisputed." Agency Motion at 6.

3 The Commission notes that in a non-selection case, pretext may

be demonstrated in a number of ways, and showing that complainant's

qualifications were not "observably superior" to those of the selectee,

is merely one way of doing so. Wasser v. Department of Labor, EEOC Request

No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048

(10th Cir. 1981).

4 If the fact finder finds that both a legal and an illegal motivation

influenced the selection, s/he should apply a mixed motive analysis.

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0120070136

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036