0120122177
10-04-2012
Leonard E. Dunning, Complainant, v. Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.
Leonard E. Dunning,
Complainant,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120122177
Hearing No. 570-2010 00258X
Agency No. CSOSA-EEO-F-09-004
DECISION
Complainant filed an appeal from the Agency's April 5, 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Offender Processing Specialist at the Agency's Offender Processing Unit in Washington, DC. On November 3, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (53) when:
On August 3, 2009, Complainant learned that he had not been selected for the position of Supervisory Processing Specialist (SPS),GS-0101-12.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on February 29, 2012.
In his Decision, the AJ found that the material facts were not in dispute and that a hearing was not warranted under the circumstances. Specifically, the AJ found that Complainant applied for and was interviewed for the subject position identified in his complaint. The AJ noted that interviews of seven candidates were conducted by a three-member panel. Further, the AJ found that each candidate was asked the same questions. Complainant's answers, the AJ found, did not impress the panel members and he scored 19 out of 60 possible points, while the selectee scored 40 points. The AJ considered the opinion of one panel member who stated that Complainant did not demonstrate that he was ready to be a supervisor based upon his interview answers.
The AJ found that Complainant did not present evidence sufficient to show that the Agency's reasons for failing to select him were a pretext to mask discrimination. The AJ found that Complainant stated that the selectee is 14 years younger than he is, and that the selectee was directly supervised by one panel member who acted as a mentor to the selectee. The AJ found this evidence was not enough to create an inference to show that the Agency's reasons were untrue and that age discrimination more likely motivated the Agency's decision. Accordingly, the AJ found that the material facts were not in dispute and that Complainant did not show that he was subjected to discrimination as alleged.
The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination based on age as alleged.
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, 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). 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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. In this case, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. We note, as did the AJ, that one panel member indicated that Complainant's interview was unimpressive, while another stated that Complainant did not fully answer the interview questions. We find that Complainant's interview score was not the highest after that achieved by the selectee (E1). On appeal, Complainant states that the Agency admitted that the age of the candidates was considered in the selection decision and that all applicants were required to provide their date of birth. Age was considered because the subject position includes a maximum age for initial appointment of 37 years. Prior experience can serve to reduce an applicant's age for purposes of the appointment. We find that Complainant's name appears on the certificate of eligible candidates, indicating that Complainant met the Agency's age requirements. Thus, the maximum age requirement did not influence Complainant's non-selection. We find that Complainant has not presented any evidence that Complainant's age, rather than his interview score, was the motivating factor in the Agency's decision to select E1.
Upon review, we find that Complainant failed to show that his qualifications for the position were plainly superior to E1's qualifications or that the Agency's action was motivated by discrimination.
CONCLUSION
Accordingly, the Agency's Final Order is AFFIRMED.
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
October 4, 2012
__________________
Date
2
0120122177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122177