0120112852
04-20-2012
Michael J. Gianini, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Michael J. Gianini,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120112852
Hearing No. 470-2009-00187X
Agency No. DFAS-00129-2008
DECISION
On May 4, 2011, Complainant filed an appeal from the Agency's April 19, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Attorney at the Agency's Office of General Counsel (OGC) in Indianapolis, Indiana. The Agency offered OGC employees Voluntary Early Retirement and Voluntary Separation Incentive Pay (VSIP). Complainant applied for retirement under the VSIP program. His retirement became effective on October 1, 2007. Under the VSIP program, an annuitant may not be employed in the same position held prior to retirement and is prohibited from re-employment for 12 months after separation unless a waiver was approved by the Secretary of Defense or the designee.
The Agency posted a job announcement, Announcement Number NX-0008-08, for the position of Attorney, YA-0905-01/02. The announcement was open from May 21, 2008, to May 20, 2009. Complainant submitted an application prior to the Agency's first cut-off date for consideration of June 10, 2008. The Resumix referral list contained 30 candidates including Complainant. As such, Complainant was considered for the position.
The reviewing panel consisted of three Assistant General Counsels. The panel independently reviewed the resumes and determined who would be interviewed. The panel did not select Complainant for an interview. Complainant was not among the four individuals selected for the position. The remaining referrals for the position were made solely on resumes received after June 11, 2009. As such, Complainant was not reconsidered for the position.
On October 28, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (61) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when, on August 29, 2008, Complainant was not selected for the position of Attorney under Job Announcement Number NX-0008-08.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing. On December 10, 2009, the Agency filed its second motion for summary judgment. Complainant responded to the motion on December 18, 2009. The AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on February 16, 2011.
The AJ found that there were no material facts in dispute. The AJ held that Complainant failed to establish a prima facie case of discrimination based on age and/or reprisal. The AJ determined that Complainant did not show that he was qualified for the position in question. The AJ noted it was not an issue of Complainant's knowledge, skills and abilities, however, Complainant could not be hired because of his retirement pursuant to the VSIP. The AJ found that Complainant failed to inform the Agency of his retirement status in his application. Complainant should not have been listed on the referral list because he was not eligible for the position in question. The AJ indicated that the record clearly showed that pursuant to Complainant's retirement under the VSIP, Complainant could not be hired for the same position has he held prior to the retirement. Further, Complainant could not be reemployed by the Agency for 12 months after the separation unless a waiver was granted by the Secretary which he did not request. As such, the AJ concluded that Complainant failed to show that he was subjected to discrimination based on his age and/or prior EEO activity. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed. On appeal, Complainant argued that there were material facts in dispute with respect to his eligibility for rehiring by the Agency. Complainant also pointed out that the selectees started just one day before the one year anniversary of Complainant's retirement. Further, Complainant asserted that the Agency had the authority to hire Complainant despite his retirement under the VSIP. Complainant noted that he could qualify for a waiver to permit his rehiring based on his status as a former senior attorney with 23 years of experience including specialized skills. Therefore, the Secretary or his designee could have provided a waiver so that Complainant could be hired by the Agency. Finally, Complainant argued that he was far superior to the selectees.
The Agency responded to the appeal by arguing that the AJ correctly issued a decision without a hearing finding no discrimination. As such, the Agency requested that the Commission affirm its decision implementing the AJ's findings.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We must first 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.
We note that Complainant argued that the AJ's decision was improper for he could have established that the Agency had the authority to rehire him. As such, Complainant claimed that he did establish a prima facie case of discrimination based on age and/or reprisal. We note that whether Complainant establish a prima facie case is not material for the Commission can assume, for purposes of analysis that he established a prima facie case of age and reprisal. As such, we are not persuaded by Complainant's argument. 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 there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As noted above, the Commission assumes that Complainant established his prima facie cases of discrimination. Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The record showed that the Panelists (Panelist 1, 2, and 3) reviewed the resumes and found who they believed would be best for the vacant positions. Complainant was a known individual to the Panel in that he worked for the Agency in OGC. Panelists1 noted that Complainant's experience was in a different directorate than the directorates with the vacancies. Another panelist (Panelist 2) indicated that they sought good candidates and that Complainant was not one they considered based on his prior work with the Agency. Panelist 2 averred that Complainant was not considered an outstanding attorney. He was not known as a productive employee and his appraisals were only fully successful. Further, Panelist 2 noted that Complainant was considered an employee who was difficult to manage or supervise as compared to others and that Complainant did not like his supervisors. Panelist 2 believed that it would be disastrous placing Complainant with supervisors he disliked and that Complainant was not a team player. Panelist 3 also noted that they were seeking individuals with contract law experience and the selectees met the Agency's needs. Panelist 3 recalled that Complainant was a mediocre employee. She stated that although Complainant had experience with the Agency, his lack-luster performance did not make him the best qualified individual for the position. Upon review, we find that the Agency has provided legitimate, nondiscriminatory reasons for its decision not to select Complainant. We turn to Complainant to establish that the Agency's reasons were pretext. Complainant merely asserted without any supporting evidence that his age and his prior EEO activity played a part in the Agency's decision not to hire him for the position in question. We find that Complainant's bald assertions alone are not sufficient. Therefore, we conclude that Complainant has not shown that he was subjected to discrimination based on age and/or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision implementing the AJ's finding of no discrimination.
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
April 20, 2012
__________________
Date
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0120112852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112852