Robert Vance, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00300 (E.E.O.C. Apr. 24, 2000)

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.