Michel M.,1 Complainant,v.Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0120142358 (E.E.O.C. Mar. 29, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Michel M.,1
Complainant,

v.

Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.

Appeal No. 0120142358

Hearing No. 550-2013-00030X

Agency No. FDICEO-12-027

DECISION

On June 24, 2014, Complainant filed an appeal from the Agency’s May 21, 2014, final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. and 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an Economist Analyst
assigned to the Agency’s facility in San Francisco, CA. On April 11, 2012, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on the bases of
disability, age (46), and reprisal for prior protected EEO activity when in January 2012, the
Agency asked him to withdraw his application for the position of Financial Economist at the
Agency’s Washington D.C. facility, advertised under vacancy announcement 2011-HQ-B0316,
because he was not able to present a research paper at the required time during the application
process.

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.

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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ found that, after viewing the evidence in a light most favorable to Complainant, a
decision without a hearing was appropriate as there were no genuine issues of material fact in
dispute. The AJ issued a decision without a hearing on April 24, 2014, finding no
discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. On
appeal, Complainant contends that the AJ erred in issuing a decision without a hearing and
reiterates his argument that the Agency subjected him to unlawful discrimination.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final decision 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 102, 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, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. 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). Complainant
must initially 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). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804

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n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000).

Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a
prima facie case of age, disability, and reprisal discrimination, the Agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows
that Complainant applied for the position at issue on January 17, 2012, and that the application
process required each candidate to be prepared to present and defend recent original research
to the selection panel. Complainant was contacted by telephone on January 25, 2012, by the
administrative assistant (AA) tasked with scheduling the presentations, and the AA informed
Complainant at that time about the specifics of the interview/presentation process. The record
shows that Complainant stated to the AA that he was not prepared to present his research on
the assigned date and that “it would be pointless…to fly to DC” for the interview. Complainant
acknowledges that at that point, the AA requested that he write a withdrawal, which he did. In
the email he stated “I wasn’t sure where I was in the process until you called yesterday, and
there just wasn’t enough time to prepare a paper, do my usual duties, and plan a flight.” The
email concludes, “[t]hanks for your consideration. Good luck with the hiring process.” In
response to his email, Complainant’s name was withdrawn for the application process.

Although Complainant argues that the Agency’s requirement that the original research be
recent was evidence of unlawful discrimination, we do not concur. The record is clear that
Complainant did not make any efforts to determine what constituted “recent” research for the
purposes of the application process, nor did he contact any other Agency employees to discuss
the nature of the required presentation. Further, it is clear in his affidavit testimony that the
majority of his actions were based on his expectations and assumptions, rather than facts.
Indeed, he admits that he did not even inquire as to the make-up of the audience he would be
presenting his research to. We find that even if Complainant’s assumptions regarding the
nature of the original research required were correct, the language of his email shows that he
voluntarily removed his name from consideration for the position at issue. We find that
Complainant has failed to show that any of the Agency’s actions were motivated by
discriminatory animus.

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order finding no discrimination is AFFIRMED.

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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

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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 29, 2016
Date