Robert Sinclair, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 25, 2009
0720070062 (E.E.O.C. Mar. 25, 2009)

0720070062

03-25-2009

Robert Sinclair, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Robert Sinclair,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0720070062

Hearing No. 340-2004-00243X

Agency No. DOT-7-03-2074

DECISION

Together with the issuance of its November 9, 2006 final order, the

agency filed an appeal from the decision of the EEOC Administrative

Judge (AJ) concerning complainant's 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. Specifically, the agency

challenges the AJ's finding of discrimination on the basis of age. For

the following reasons, the Commission REVERSES the agency's final order

finding no discrimination on the basis of age.

BACKGROUND

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

an applicant for employment at the agency's Burbank Airport and Los

Angeles International Airport facilities in Los Angeles, California.

On March 11, 2003, complainant filed an EEO complaint alleging that

he was discriminated against on the bases of disability (hearing loss)

and age (68) when:

On November 14, 2002, after providing proof that he had passed all

of the agency's hearing tests, and faxed the results to the agency,

complainant was not hired by the agency.

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 AJ. Complainant requested a hearing.

On August 5, 2004, the agency filed a motion for a decision without

a hearing. By notice dated March 3, 2006, the AJ advised the parties

of her proposed partial summary judgment in favor of the agency with

respect to complainant's claim based on disability, and proposed partial

summary judgment in complainant's favor, finding discrimination occurred

with respect to complainant's claim of age discrimination. Both parties

responded to the AJ's notice. On August 14, 2006, the AJ held a hearing

regarding remedies. Subsequently, the AJ issued a decision on September

25, 2006.

In her decision, the AJ incorporated the prior rulings she had made with

respect to complainant's complaint based on age and disability. Therein,

AJ found that complainant did not establish a prima facie case of

disability discrimination in that he failed to present evidence that

he was substantially limited in the major life activity of hearing.

The AJ observed that after failing the pre-hire hearing test during the

medical assessment phase of the agency's hiring process, complainant

submitted proof that he had hearing ability within normal limits when he

used a hearing aid. The AJ therefore found that complainant was not an

individual with a disability within the meaning of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

With respect to age discrimination, the AJ found that complainant

established a prima facie case of age discrimination in that complainant

applied for and was found qualified for the position of Transportation

Security Screener (TSS). Complainant began the application process on

October 24, 2002, and on November 14, 2002, he submitted the necessary

proof of his ability to hear (indicated by the medical screening

personnel), to complete his application. Complainant was not selected.

The AJ found an indication1 in the record that the agency filled ten

TSS positions at the Burbank Airport after complainant had completed the

application process, with nine applicants being younger than complainant.

The AJ found that the agency did not submit any admissible evidence2

showing a legitimate, non-discriminatory reason for failing to hire

complainant. The AJ therefore found that complainant was subjected to

age discrimination. The AJ ordered the agency to place complainant in

an entry-level position, to calculate and pay complainant back wages,

interest, and benefits from November 17, 2002.3

The record further shows that on November 9, 2006, the agency issued

its Final Order and notice of appeal, declining to implement the AJ's

decision. On appeal, the agency argues that the AJ improperly issued

summary judgment on complainant's age claim and that material facts

remain in dispute. The agency states that the AJ impermissibly resolved

factual disputes, without a hearing, in complainant's favor and ignored

the agency's legitimate reasons for not hiring complainant.

Complainant filed an appeal in opposition to the agency's final order.

In response to the agency's appeal, complainant points out that the AJ

provided the agency with multiple opportunities to present evidence of

its reasons for failing to select complainant for a TSS position and

that the agency failed to set forth evidence it claimed it had to either

rebut complainant's evidence or to set forth a non-discriminatory reason

for the failure to hire complainant. Complainant states that the agency

made a tactical decision to withhold evidence and it should not now be

allowed to claim that errors were made in interpreting the evidence that

the agency did present.

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. Department of Defense, 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).

To prevail in a disparate treatment claim such as this, 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 or

she 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 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory 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, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

As a preliminary matter, we note that neither party appeals the AJ's

summary decision with respect to the disability claim. Accordingly, we

make no finding regarding whether complainant is a qualified individual

with a disability and we do not address the disability claim.

In the instant case, we find the AJ properly issued her decision

regarding the age discrimination claim without a hearing. We note that

the material facts are not in dispute as summarized by the AJ in her

notice of March 3, 2006, and observe, in particular, the following facts:

Complainant initially applied for the TSS position on October 24, 2002,

and on November 14, 2002, had passed all of the necessary assessment and

screening requirements.4 Complainant was not hired. Complainant was

68 at the time he applied for the position. The investigation into the

complaint revealed a list of ten applicants hired by the agency after

November 14, 2002, at the installation where complainant sought to work,

nine of whom were younger than complainant. We note that this list is

one of the items the AJ deemed to be a matter of disputed fact because

the list is not authenticated; that is, the list is unaccompanied by

the statement of an appropriate agency official verifying the origin

and accuracy of the information in the list. Following the issuance of

the AJ's order directing the agency to provide such authentication, we

find the AJ properly considered the list to be the admission of a party

opponent and allowed complainant to rely on the evidence contained in

the list. The AJ properly denied the agency any further opportunity to

contend that the list did not contain pertinent information about the

hired applicants. We concur with the AJ that complainant established

a prima facie case of discrimination based on age.

We consider the position taken in the agency's Motion For Summary Judgment

(August 5, 2004) with respect to the agency's reasons for failing to

hire complainant. Specifically, the agency states that complainant

was not hired because all of the positions at Burbank International

Airport and at Los Angeles International Airport were filled by the time

complainant completed the application process. We find the agency's

mere assertion that all of the positions were filled before November 14,

2002, to be insufficient to withstand a motion for summary judgment.

We find, as did the AJ, that the agency failed to meet its burden

to put forth legitimate, non-discriminatory reasons for not selecting

complainant once he had completed the application and assessment process.

Accordingly, the AJ properly found that the agency discriminated against

complainant on the basis of age as alleged in the complaint and we find

that complainant's age was the factor that led to his non-selection.

We further find that the remaining three items enumerated as

"disputed facts" in the AJ's notice of March 3, 2006, are not material

to complainant's age claim. One item relates to the approval of

complainant's medical documentation on December 4, 2002; however, neither

party disputes that complainant passed the hearing assessment portion

of the application process and that he provided proof of doing so to

the agency on November 14, 2002. The other two items (complainant's

placement on a waiting list and an offer of employment at Los Angeles

International Airport) both related to the remedies complainant sought.

We find neither party challenges the remedies portion of the AJ order.

CONCLUSION

The Commission REVERSES the agency's decision finding no discrimination

based on age and the agency is ordered to comply with the AJ's order as

slightly modified herein.

ORDER

The agency shall take the following remedial actions:

1) Within 30 days of the date this decision becomes final, and to

the extent it has not already done so, the agency shall place complainant

into an entry-level TSA position with seniority as of November 17, 2002.

2) Within 60 days of the date this decision becomes final, the agency

shall, pay complainant back pay (including overtime and customary raises),

with interest, retroactive to November 17, 2002, less amounts earned in

reasonable mitigation, pursuant to 29 C.F.R. �1614.501. Complainant shall

cooperate in the agency's efforts to compute the amount of backpay and

benefits due and shall provide relevant information requested by the

agency. If there is a dispute regarding the exact amount of back pay

and/or benefits due the agency shall issue complainant a check for the

undisputed amount within 30 day of the date that the agency determines

the amount it believes due. Complainant may petition for enforcement or

clarification for the amount in dispute.

3) Within 60 days of the date this decision becomes final, the

agency shall pay complainant all other applicable benefits retroactive

to November 17, 2002.

4) Within 180 days of the date this decision becomes final, the

agency shall train all responsible agency employees in the agency's

facilities at the Burbank Airport and Los Angeles International Airport,

California, concerning the prevention of age discrimination and the

agency's duties to ensure that similar violations do not occur.

5) Within 180 days of the date this decision becomes final, the

agency shall consider taking appropriate disciplinary action against

the responsible management officials still employed by the agency. The

agency shall report its decision to the Compliance Officer, referenced

herein. If the agency decides to take disciplinary action, then it shall

identify the action taken. If the agency decides not to take disciplinary

action, it shall set forth the reason(s) for its decision not to impose

discipline. If any of the responsible management officials have left

the agency's employment, then the agency shall furnish documentation of

their departure date(s).

6) The agency shall send evidence that they have complied with

provisions 1 - 5 of this Order to the Compliance Officer as referenced

herein.

POSTING ORDER (G0900)

The agency is ordered to post at its Burbank Airport and Los Angeles

International Airport facilities in California, copies of the attached

notice. Copies of the notice, after being signed by the agency's duly

authorized representative, shall be posted by the agency within thirty

(30) calendar days of the date this decision becomes final, and shall

remain posted for sixty (60) consecutive days, in conspicuous places,

including all places where notices to employees are customarily posted.

The agency shall take reasonable steps to ensure that said notices are not

altered, defaced, or covered by any other material. The original signed

notice is to be submitted to the Compliance Officer at the address cited

in the paragraph entitled "Implementation of the Commission's Decision,"

within ten (10) calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 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 (R0408)

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 (Z1008)

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

March 25, 2009

__________________

Date

1 Prior rulings from the AJ included an order directing the agency to

produce evidence of applicants hired into TSS positions around the time

that complainant applied for employment. The AJ found that the agency

presented only a list (not authenticated) which stated that ten screener

positions were filled after November 14, 2002. The list included the

name, sex, race, birth date, presence/absence of disability, and hire

date of each person selected.

2 The agency supplied a generic statement from the official responsible

for the design of the agency's accelerated hiring program, but no

statement or other documentation from any official with personal knowledge

of the reasons for complainant's non-selection, nor whether the agency's

hiring policies were followed when complainant applied for employment.

3 The AJ noted that complainant was not entitled to compensatory damages

or attorney's fees for his successful age discrimination claim.

4 The agency's August 5, 2004 Motion for Summary Judgment recites the

same undisputed facts regarding complainant's application date and date

upon which he passed the audiometric assessment and faxed the results

to the agency.

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0720070062

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0720070062