Robert J. Boardman, Complainant,v.Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionNov 4, 2005
01a55752 (E.E.O.C. Nov. 4, 2005)

01a55752

11-04-2005

Robert J. Boardman, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.


Robert J. Boardman v. Federal Deposit Insurance Corporation

01A55752

November 4, 2005

.

Robert J. Boardman,

Complainant,

v.

Donald E. Powell,

Chairman,

Federal Deposit Insurance Corporation,

Agency.

Appeal No. 01A55752

Agency No. FDICEO-020057

Hearing No. 210-2004-00099X

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination.

The record reveals that, during the relevant time, complainant was

employed as a Compliance Examiner at the agency's Urbandale Field Office,

Division of Supervision and Consumer Protection (DSC) in West Des Moines,

Iowa. Complainant sought EEO counseling and subsequently filed a formal

complaint alleging that he was discriminated on the basis of age (date

of birth: July 12, 1952) when he was not selected for eleven positions.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an Administrative Judge (AJ) or

alternatively, to receive a final decision by the agency. Complainant

requested a hearing before an AJ, but prior to the hearing the agency

filed a Motion for Summary Judgment.

On October 26, 2004, the AJ granted partial summary judgment regarding

four positions for which complainant applied but was not selected because

the selectees were older than complainant. The AJ also granted summary

judgment as to a fifth position, where complainant failed to controvert

the agency's explanation for its selection decision. The remaining six

positions were addressed at the hearing because the AJ determined that the

agency failed to show that complainant could not prevail on those claims.

On November 17 - 19, 2004, a hearing was held. On the second day of

the hearing, partial summary judgment was granted as to a sixth position

because complainant failed to controvert the agency's explanation.

The following claims remained for hearing:

Complainant alleged discrimination on the basis of age (date of birth:

July 12, 1952) when:

He was not selected for a Field Supervisor (Compliance), CG-570-15,

position located in Chicago, Illinois, which was advertised under

Vacancy Announcement 2002-CHI-1831, which opened on July 18, 2002,

and closed on July 24, 2002.

He was not selected for Field Supervisor (Compliance), CG-570-14,

positions located in: Springfield/Princeton, Illinois;

Lexington/Elizabethtown, Kentucky; Urbandale/Cedar Rapids, Iowa; and

Sioux Falls, South Dakota/Grand Forks, North Dakota/Fargo, North Dakota

(one position total for South and North Dakota), advertised under

Vacancy Announcement 2002-CHI-1832, which opened on July 18, 2002,

and closed on July 24, 2002.

Following a hearing, the AJ issued a decision on July 14, 2005, finding

that complainant had not been discriminated against. Specifically,

the AJ found that the agency presented legitimate, nondiscriminatory

reasons for its actions, which complainant failed to rebut. On August 8,

2005, the agency issued a decision fully implementing the AJ's decision.

Complainant now appeals from that decision.

6 Nonselections - Summary Judgment

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. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

The six positions for which summary judgment was granted for the agency

were all non-selections for the Field Supervisor, CG-570-14 vacancy in

Indianapolis, Omaha, Norcross, Albany, Austin, and Baton Rouge. For the

positions in Indianapolis, Omaha, Norcross, and Albany, the AJ found that

the selectees were all older than complainant and that complainant had

not presented a prima facie case with regard to those selections. With

regard to the selections for the Austin and Baton Rouge positions, the AJ

found that complainant failed to cite evidence controverting the facts

or articulated bases for the decision makers' selections. The decision

makers' stated that they relied on the applications of the selectees which

were superior to complainant's application and also chose the selectees

because of the selectees' considerably longer supervisory experience.

The Commission finds that the grant of summary judgment for the agency

on the six non-selections was proper.

5 Nonselections - Hearing

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

We find that the agency has provided legitimate nondiscriminatory

reasons for the five nonselections for which a hearing was held.

The selecting officials stated that complainant did not include in his

application detailed information on what he did in his various positions,

what he accomplished, how well he performed, or how his experiences and

training related to the positions that he applied for. The selecting

officials testified that the applications of the selectees', in contrast

to complainant's application, did provide the necessary information

to show they were best suited for the positions. The AJ noted,

�Complainant's affidavits and testimony expanding on [his qualifications

in his applications] does not change what was available to the selecting

officials at the time they made their selections.�

Complainant has failed to rebut the agency's articulated legitimate,

nondiscriminatory reasons for the selections. Additionally, complainant

has failed to show that his qualifications for the positions were plainly

superior to the selectees' qualifications or that the agency's actions

were motivated by discrimination. Moreover, complainant has failed to

show, by a preponderance of the evidence, that he was discriminated

against on the basis of age. Furthermore, the Commission finds that

the AJ's decision finding no discrimination is supported by substantial

evidence.

The agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (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

November 4, 2005

__________________

Date