Paul D. Benton, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 20, 2001
01a10140 (E.E.O.C. Mar. 20, 2001)

01a10140

03-20-2001

Paul D. Benton, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Paul D. Benton v. Department of the Army

01A10140

March 20, 2001

.

Paul D. Benton,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A10140

Agency No. COL 97-AR-1015E

Hearing No. 120-98-9591X

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency order (order)

concerning his complaint of unlawful employment discrimination on the

basis of age (58 at the time of the alleged discriminatory incident) in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. For the reasons stated herein,

the agency's order is reversed and remanded.

ISSUE PRESENTED

The issue on appeal is whether complainant has established that the

agency discriminated against him on the above-referenced basis when it

failed to select complainant for a Ship Surveyor, GS-09/11, position.

BACKGROUND

Complainant was self-employed as a Superintendent and Consultant for the

Maritime Industry. The agency issued an internal and an external vacancy

announcement recruiting for a Ship Surveyor, GS-09/11 position.<1> In

November 1996, complainant applied for the external vacancy announcement.

He ranked third on a certificate of eight eligibles referred to the

selecting official (SO) for a GS-09, Ship Surveyor position. Complainant

interviewed for the position but the eligibles who ranked first and

fourth were selected for the position (Selectee 1 and Selectee 2).

Selectee 1 was 46 years of age and Selectee 2 was 43 years of age.

Selectee 2 later declined the position and the eligible who ranked second

on the certificate was selected. He was 50 years of age. Subsequently,

two applicants from the internal announcement were selected for GS-09,

Ship Surveyor positions. Their ages were 45 and 52.

Complainant, believing he was a victim of discrimination, sought EEO

counseling and subsequently filed a complaint alleging that the agency

discriminated against him based on age (58) when it failed to select

him for any one of the four Ship Surveyor positions. Specifically,

complainant stated that he is equally or better qualified than the

selectees, the SO made a discriminatory comment about age, and the SO

gave him inaccurate information about applying for similar positions with

the agency in the future. Complainant also stated that although his

age was not indicated on his application, his personal characteristics

and work history would reveal his age and that the SO was hostile during

his interview.

The SO stated that the selectees' qualifications were better suited for

the Ship Surveyor positions than complainant's because complainant was

qualified in only one aspect of ship work (electrical). The SO also

stated that the selectees demonstrated an ability to perform well with

minimal supervision, complainant had difficulty answering technical

questions during his interview, and complainant had a possible conflict

of interest because he served as a private contractor for the maritime

industry. Lastly, in reference to the discriminatory comment alleged by

complainant, the SO stated that he did not know any of the eligibles'

ages but, when he was informed of the instant complaint, he commented

that one selectee appeared older than complainant.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination. The AJ concluded that complainant failed to

establish a prima facie case of discrimination because he failed to show

that his qualifications matched those of the selectees or that age was

a determining factor. The AJ further found that, assuming complainant

could establish a prima facie case, he did not establish pretext. The

agency issued an order adopting the AJ's decision without modification.

This appeal followed, in which complainant stated that the AJ issued a

summary judgment decision in error because genuine issues of material

fact exist and the credibility of the SO is at issue.

ANALYSIS AND FINDINGS

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 does not

sit as a fact finder. Id. 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. A disputed 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.

In the context of an administrative proceeding under the ADEA, an AJ

may properly consider summary judgment only upon a determination that

the record has been adequately developed for summary disposition.

The Commission finds that the AJ erred when he concluded that there

existed no genuine issue of material fact in this case. Such issues do

exist, particularly regarding (1) the qualifications of the selectees

compared to those of the complainant and how they relate to the position

at issue and (2) statements made by the SO that have been construed

as discriminatory. These issues can only be resolved by a hearing.

After a careful review of the record and for the reasons cited above, it

is the decision of the Commission to VACATE the agency's final order and

find that the record is not fully developed. Accordingly, we find that

summary judgment should not have been granted in this matter because a

genuine issue of material fact exists. See Kenney v. Department of the

Army, EEOC Request No. 01994419 (July 7, 2000)(citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248-9 (1986). As such, this case is REMANDED

to a Hearings Unit for processing in accordance with this decision and

the order below.

ORDER

The complaint is remanded to the Hearings Unit of the appropriate EEOC

field office for scheduling of a hearing in an expeditious manner.

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(Supp. V 1993). 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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

March 20, 2001

__________________

Date

1An internal announcement is for current employees of the Federal

government, whereas, an external announcement is for applicants who are

not current employees of the Federal government.