0120112393
11-08-2012
Andrew C. Wiegand, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Andrew C. Wiegand,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120112393
Hearing No. 530-2008-00367X
Agency No. 08R3FASAW01
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 25, 2011 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former WG-6 Material Handler at the Agency's Eastern Distribution Center, Mid-Atlantic Region in Burlington, New Jersey.
On November 20, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of age (64) when: he did not make the list of top candidates for the position of Materials Handler, WG-6907A-06, advertised under Vacancy Announcement Number ("VAN") DEU-3-07-005.
At the conclusion of the Agency's investigation into her claims, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). However, the AJ granted the Agency's motion for a decision without a hearing, concluding that a review of the investigative file showed no dispute as to the material facts.
Based on the investigation, the AJ found the following facts. Complainant began his employment with the Agency in January 2003 as a temporary WG-6 Materials Handler. In September 2003, his temporary position as a Materials Handler was changed to a four (4) year term appointment, to conclude in October 2007. On or about June 21, 2007, the Agency advertised the position at issue, full time night shift Materials Handler, a term appointment not to exceed one year, with the possibility of the appointment being extended up to four (4) years. The major duties of the position included "performing a full range of warehouse functions," including "receiving, locating, storing, shipping and warehousing materials, commodities or equipment in accordance with established procedures and operating requirements."
Other responsibilities included working independently in determining sequences of loading and unloading, "developing space utilization plans and implementing the movement of materials from dock to bin or from storage to shipping." Candidates meeting the minimum qualification requirements would be further evaluated and numerically rated; the basis for that rating would be the applicant's experience and/or training.
As part of the application process, applicants were required to provide answers to a list of questions for submission with their applications; these questions were referred to as a supplemental questionnaire. Once an applicant submitted his/her application, his/her qualifications would be evaluated to determine the applicant's ranking. The applicants were ranked individually and were assessed according to an established rating system. The process was completed by the Agency's Human Resources Specialist (HRS). The HRS determined the cutoff score of rankings to be 94; any candidate with a score below 94 would not be referred for consideration.
Complainant timely submitted his application and was giving a ranking score of 99. As his score was above the cut-off, he was placed on the Certificate of Eligible Candidates and referred to the selecting official (SO). There were four (4) openings for the position of WG-6 Materials Handler.
Further, the selection procedure required the selecting official to proceed down the Certificate of Eligible Candidates using the rule of three. Specifically, for every one of the four available positions, a selection were to be made from the top three, highest ranked candidates on the list. Interviews were only provided when a particular candidate was reached on the certificate. There were six (6) eligible candidates with a higher rating than Complainant, notwithstanding his designation as a "5 point" veteran,1 and there were five (5) eligible candidates with ratings lower than Complainant's rating.
Because Complainant was not one of highest rated candidates, with six individuals having higher scores, he was not chosen to be interviewed by the selection panel. The three individuals with the highest eligibility rating scores were ages 51, 44 and 56, respectively. Based on his non-selection to the position, Complainant filed a formal complaint of discrimination.
On January 18, 2011, the AJ issued a summary decision finding no discrimination. In reaching this decision, the AJ determined that even if Complainant could establish a prima facie case, the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management witnesses explained that Complainant did not make the list of top candidates for the position. The HRS stated that all of the applicants were required to complete the supplemental questionnaire and that all applications were reviewed for eligibility. She stated that the applications from candidates who were rated as eligible were then reviewed for qualification determinations, rating and ranking considerations. She further stated that she determined the cut-off score, which Complainant met. The HRS noted that there were numerous candidates' names on the certificate and that the rule of three was applied in order to make the selections. She maintains that the selection panel did not reach the point of the certificate listing where Complainant was listed such that he was eligible for an interview; she noted that just because one's name is on a certificate of eligibles does not mean the selecting official can select from any of the candidates on the list. The SO stated that he had no involvement in the selection procedure prior to the interviews and thus had no involvement as to who made the interview list.
On March 25, 2011, the Agency issued its final order adopting the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and Complainant has not identified any disputes of material fact that require resolution through 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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The record fully supports the AJ's determination that the responsible management officials in this case articulated legitimate, non-discriminatory reasons for the actions at issue. Complainant proffers no appeal statement. Complainant has not produced evidence to prove, by a preponderance of the evidence, that the Agency's explanations are a pretext for age discrimination.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 8, 2012
__________________
Date
1 The four eventual selectees also had veterans' preference.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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