0120111148
01-04-2012
Richard Becker, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard Becker,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111148
Hearing No. 520-2009-00331X
Agency No. 200H07852009100015
DECISION
Complainant filed an appeal from the Agency’s December 7, 2010,
final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), 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. 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 worked
as a Nursing Assistant at the Agency’s Medical Center facility in
Northport, New York.
On November 1, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of sex (male), age
(73), and reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when he was not referred and not selected
for a Retail Manager position that was advertised in a newspaper, and
he was not given a response to his letter of application.
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 before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case issued a decision without a hearing on November 16,
2010, in favor of the Agency. The Agency subsequently issued a final
order adopting the AJ’s findings.
Based on the evidence gathered during the investigation, the AJ
found that the following facts had been established. On January 18,
2008, Complainant applied for the position of Retail Manager in the
Canteen Services by sending a letter to the Director of Human Resources.
An announcement for the position was run continually on a regular basis in
newspapers throughout the United States. The aim of the advertisement
was to gather a pool of qualified candidates for potential openings
throughout the Northeast United States. Applicants were required to apply
for the position online through USAJobs or the Canteen Services website.
Complainant did not submit an online application. As of the date of the
complaint, he had received no response to his letter of application and
the Agency had not filled any Retail Manager positions in the New York
metropolitan area where Complainant indicated he wished to be considered.
The AJ determined Complainant could not prove discrimination because
he failed to properly apply for the position by submitting an online
application through USAJobs or the Canteen website. Because Complainant
attempted to apply by letter to Human Resources, his application was
not considered and he was deemed to have not applied. The AJ further
noted that even if Complainant was deemed to have applied, there was
no selection made so Complainant was not harmed. Additionally, the AJ
determined that Complainant was not harmed by the Agency’s failure to
respond to his application letter.
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 determined that
the instant complaint was suitable for summary judgment. Before the AJ
and on appeal, Complainant failed to establish that there were genuine
issues of material fact in this case which needed to be determined
through a hearing. The evidence of record fully supports the AJ’s
determination that Complainant did not properly apply for the position
and that the position was not filled in his designated geographic area. As
such, Complainant has not shown show that the Agency’s reasons for not
selecting him or not notifying him of the status of his application were
a pretext for discrimination or reprisal.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.1
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
January 4, 2012
__________________
Date
1 Because we affirm the AJ’s conclusion that no discrimination occurred,
it is not necessary to address her alternative dismissal of the complaint
for abuse of process.
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0120111148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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