Thomas E. Kaprive, Complainant, Lt. Gen. Kenneth A. Minihan, Director, National Security Agency Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01986151 (E.E.O.C. Apr. 19, 2000)

01986151

04-19-2000

Thomas E. Kaprive, Complainant, Lt. Gen. Kenneth A. Minihan, Director, National Security Agency Agency.


Thomas E. Kaprive v. National Security Agency

01986151

April 19, 2000

Thomas E. Kaprive, )

Complainant, )

)

) Appeal No. 01986151

) Agency No. 97-012

Lt. Gen. Kenneth A. Minihan, ) Hearing No. 120-97-4768X

Director, )

National Security Agency )

Agency. )

)

DECISION

Complainant filed a timely appeal from a final agency decision concerning

his complaint of unlawful employment discrimination. He alleged

discrimination on the bases of reprisal (prior EEO activity), and age

(7/7/36), in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

Complainant alleged he was discriminated against when he was denied

a promotion in December 1996. The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, we reverse and remand the agency's final

decision.

ISSUE PRESENTED

The issue to be decided is whether the administrative judge properly

granted summaryjudgment for the agency.

BACKGROUND

The record reveals that during the relevant time, Complainant was

employed as a Senior Contracting Officer GGD-13 at the agency's Office of

Contracting, Fort Meade, Maryland facility. When he was not promoted in

December 1996, he sought EEO counseling and, subsequently filed a formal

complaint on January 6, 1997. At the conclusion of the investigation,

the complainant was provided a copy of the investigative file and he then

requested a hearing before an EEOC Administrative Judge (AJ). The AJ

issued a recommended decision granting summary judgment to the agency.

The AJ reasoned that although the complainant established a prima facie

case of age discrimination and reprisal, he failed to undermine the

credibility of the agency's management officials or the employees on

the promotion board and their reasons for not promoting him. The AJ

found that the complainant had not shown that his qualifications were

"plainly superior" to those of the selectee or that the agency's reasons

for not promoting him were a pretext for age discrimination

or reprisal. He further indicated that he "gave no weight" to the

complainant's assertions in the pre-hearing statement or in his opposition

to summary judgment because they were not supported by affidavits.

The AJ concluded that the statistics that were available in the record

were enough to trigger an investigation but were not relevant to the

Complainant's case and were otherwise explained by the agency.

The agency's final decision adopted the AJ's conclusions stating that

the selectee for promotion in 1996 had superior experience, training,

performance potential, personal attributes and abilities.

Complainant raises no new contentions on appeal. The agency argues that

the complainant offered no reason why its final agency decision should

be overturned and therefore it should be sustained.

Review of 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. 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, complainant has failed to establish the

essential elements of his or her case. Spangle v. Valley Forge Sewer

Authority, 839 F.2d 171, 173 (3d Cir. 1988). In determining whether

to grant 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.

Our review of a case where summary judgment has been granted under 29

C.F.R. �1614.109(g) is de novo. EEOC Management Directive (MD) Ch. 9-16

(1999). In that regard, we conclude that the AJ erred in granting

summary judgment on this record where there were several questions of

fact to be resolved. On the issue of the complainant's qualifications,

the complainant arguably demonstrated that he had more formal education,

more experience and more specialized training than the selectee. He also

argued that he had a more challenging branch to manage than the selectee,

whose branch performed more mundane tasks. He raised the issue that the

selectee was given better assignments overall which affected his ability

to be promoted. These are all factual issues which required the AJ to

hold a hearing and to weigh the evidence.

Furthermore, the AJ's findings reveal that he improperly made factual

findings which must only be considered during a hearing. For example,

the AJ found that the complainant failed to show he was "plainly superior"

than the selectee. This indicates he improperly weighed the evidence and

made a factual finding without hearing the testimony of the witnesses. His

conclusion that the complainant did not establish by a preponderance of

the evidence that he was discriminated against was a clear signal the

AJ considered the relative weight of the available evidence. This was

improper in a summary judgment analysis.

Our conclusion that this case was improperly decided is further supported

by our previous decision finding age discrimination in another appeal

filed by this same complainant. Kaprive v. National Security Agency,

EEOC Appeal No. 01972374 () In that decision, we considered the agency's

failure to promote the complainant in 1989, 1993 and 1994 and found that

it had discriminated against the complainant on the basis of his age.

We concluded that the agency had engaged in a long history of refusing the

complainant attractive assignments and mentoring in favor of advancing

younger employees. In our finding of discrimination, our analysis

included a review of the agency's promotion board process, its process

for giving letters of appreciation and cash awards, all issues in this

case. <2> We found the same nominating manager and his subordinate

managers lacked credibility for some of the same statements in this case

which they used to argue the complainant's inferior qualifications for

promotion in 1996.

For all the above reasons, we vacate the agency's final decision and

remand this case to the appropriate hearings unit for assignment to an

AJ to hold a full evidentiary hearing.

CONCLUSION

After a careful review of the record, we find that the AJ erred in

granting summary judgment and that there were questions of fact to

be resolved at a hearing. Accordingly, we vacate the agency's final

decision and REMAND this matter to the appropriate hearings unit to

schedule a hearing.

ORDER (D1092)

This case is remanded to the Baltimore District Office for assignment to

an AJ to hold a hearing. The AJ may deem it necessary to require the

agency to supplement the record to ensure fair and complete attention

to the issues in the case.

The agency is ORDERED to process the remanded complaint in accordance with

64 Fed. Reg 37,644, 37,657 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.109 (1999) et seq. The agency shall acknowledge

to the complainant that it has received the remanded complaint within

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

advise complainant that it has requested the appointment of an EEOC AJ

pursuant to 29 C.F.R. � 1614.109(a). The agency shall make every effort

to expedite the scheduling of a hearing on this matter.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision."

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 (M0300)

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); 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 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 (R1199)

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:

4/19/00

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 Assistant

1On 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.

2Under our new regulations and procedures, these cases would have been

consolidated and decided together under 29 C.F.R. �1614.606.