01a00300
04-24-2000
Robert Vance, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Robert Vance, )
Complainant, )
) Appeal No. 01A00300
v. ) Agency No. 980438
) Hearing No. 100-99-7236X
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(�FAD�) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of gender (male) and age
( forty and over) in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issues presented herein, is whether the Administrative Judge (�AJ�),
in making the decision not to hold a hearing, erred in finding that
there were no genuine issues of material fact.
BACKGROUND
The record reflects that for the relevant period of time, complainant was
employed by the Department of Agriculture as a program analyst, GS-343-9.
Complainant states that he applied for the position of Management Analyst,
GS-343-11, under vacancy announcement 9-82-050-8. On January 23, 1998,
complainant received notice that he was not selected for the position
of Management Analyst. Instead, a younger female was selected.
Believing that he was the victim of discrimination, on January 27,
1998, complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that he was not selected for the
position of Management Analyst, which he applied for, and was qualified
to perform. Complainant further states that a younger less qualified
female was selected in his place.
Counseling failed, and on March 12, 1998, complainant filed a
formal complaint claiming he was the victim of unlawful employment
discrimination on the basis of his gender (male) and age (forty and over).
The complaint was comprised of the matter for which complainant underwent
EEO counseling, discussed above.
Subsequently, the agency accepted the complaint and ordered an
investigation. The investigation revealed that two individuals( the
complainant and the selectee) were considered qualified for the Management
Analyst position. Therefore, their applications were forwarded to the
selecting official for review. Upon review, the selecting official
(�S1") did not hold any interviews. Rather, S1 selected the selectee
based upon her application.
With regards to the applications, the selectee held the position of
Management analyst, GS-343-9, for approximately nine months prior to
being selected for the above position. Also, selectee's application
was comprised of five awards and a rating of �outstanding� on her most
recent performance apprisal for October 1996 through September 1997.
However, selectee's previous work experience was primarily that of
a secretary. On the other hand, complainant's application revealed
that he held the position of program analyst, GS-343-9, from February
1994 through the time he received notice he was not selected for the
position he applied for. Prior to this, complainant held the position
of Management Analyst from May 1992 through February 1994, GS 343-9-8.
And he held the same position for a private company from January 1990
through August 1991. Furthermore, complainant only received a rating
of �fully successful� for the rating period preceding the selection.
S1 stated that she selected the selectee because she held essentially
the same position for approximately one year prior to the selection,
she received numerous awards, and she, unlike complainant, received an
�outstanding� performance appraisal for the year preceding the selection.
Upon completion of the investigation, complainant requested a hearing
before an Administrative Judge (�AJ�). However, prior to the hearing,
the AJ issued Findings & Conclusions without a hearing. The AJ found
that the agency did in fact articulate a legitimate nondiscriminatory
reason for not selecting complainant, and complainant failed to prove,
by a preponderance of the evidence, that the agency's explanation was
unworthy of belief and a pretext masking discrimination on the basis
of either gender or age. Therefore, the AJ ruled that the agency did
not discriminate against complainant. On September 9, 1999, the agency
issued a final decision adopting the Findings & Conclusion by the AJ in
their entirety. Hence the present appeal ensued.
On appeal, complainant, through his attorney, argues that the selectee
was not qualified for the position because the selectee did not meet
the educational requirement as set forth in the vacancy announcement.
This argument is supported by the qualifications set forth in the vacancy
announcement and the selectee's application.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without
a hearing when s/he finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
appellant has failed to establish the essential elements of his/her
case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d
Cir. 1988). In response to a motion for summary judgment, the trier of
fact's function is not to weigh the evidence and render a determination
as to the truth of the matter, but only to determine whether there exists
a genuine factual dispute. Anderson, 477 U.S. at 248-49.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred in
concluding that there was no genuine issue of material fact in this
case. Here, complainant, on appeal, has clearly established that a genuine
issue of material fact exists. Specifically, complainant has demonstrated
that the selectee was not qualified for the position because she lacked
the educational requirement set forth in the vacancy announcement.
In finding no discrimination, and that the present complaint was ripe for
summary judgment, the AJ credited the selecting official's explanation,
despite the evidence in the ROI that suggests that the selectee was not
qualified for the position.
While the Commission makes no judgment about the veracity of the
statements made by the selecting official or that of the complainant,
this is precisely the type of evidence that is appropriate for
cross-examination, elaboration and credibility determinations.
The factual aspects of this case are disputed and in conflict.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also 64
Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �� 1614.109(c) and (d)). �Truncation of this process,
while material facts are still in dispute and the credibility of witnesses
is still ripe for challenge, improperly deprives complainant of a full
and fair investigation of her claims�. Mi S. Bang v. United States
Postal Service, EEOC Appeal No. 01961575 (March 26, 1998). See also
Peavley v. United States Postal Service, EEOC Request No. 05950628
(October 31, 1996); Chronister v. United States Postal Service, EEOC
Request No. 05940578 (April 23, 1995). Accordingly, the Commission
finds that the AJ erred in issuing Summary Judgment and the FAD which
adopted the AJ's decision must be reversed.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
agency's final decision and REMANDS the matter 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
April 24, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.