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.