Gwen R. Reese, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 0120122339 Hearing No. 560-2011-00224X Agency No. NPS100602 DECISION On May 3, 2012, Complainant filed an appeal from the Agency's April 20, 2012, final order concerning her 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). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that she was discriminated against as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant applied for the position Park Ranger (Interpretation), GS-0025-05, advertised under Vacancy Announcement No. OZAR-DEU-09-12. On August 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (61) when on March 19, 2009 she became aware that she was not selected for the position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Complainant filed a Motion for Summary Judgment on January 4, 2012. On January 30, 2012, the Agency filed its objection to Complainant's motion and filed a cross-motion for Summary Judgment. Over Complainant's objections, the AJ granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on March 19, 2012. In her decision, the AJ found the following facts: On December 8, 2008, the Agency announced multiple vacancies for temporary Park Ranger (Interpretation) positions under Vacancy Announcement Number OZAR-DEU-09-12. Complainant submitted her application on February 2, 2009. Complainant provided affidavit testimony that even though her application did not state her sex or age, her sex could be assumed from her name and her age could be deduced from her college transcripts and years of work experience. The Agency received 64 applications for the announcement. A Human Resources Specialist (HR1) reviewed the applications for the minimum education or experience requirements established in the Office of Personnel Management's Qualification Standards. HR1 determined that forty-four applicants, including Complainant, met the basic education and/or experience requirements. HR1 also rated all qualified applicants according to a "crediting plan." The AJ found that the crediting plan was developed by HR1 and a subject matter expert prior to the announcement of the position to identify the knowledge, skills and abilities (KSA) that describe a successful candidate for the position. Complainant was ranked for each duty station as: Big Spring duty station - 35th out of 39; Alley Spring duty station -35th out of 40; and Round Spring duty station - 38th out of 41. Because Complainant was not within the top eighteen candidates for any duty station, she was not included on the Best Qualified list. On March 19, 2009, Complainant received written notification that she was found eligible and qualified, but was not referred to the selection panel for further consideration. On March 24, 2009 and April 3, 2009, Complainant received information from Human Services regarding the applicant reconsideration process. However, Complainant did not provide the information necessary for reconsideration of her rating. Eight selections were made: selectee1 (female, age 35); selectee2 (female, age 25); selectee3 (male, age 53); selectee4 (female, age 47); selectee5 (male, age 27); selectee6 (female, age 48); selectee7 (male, age 61); and selectee8 (female, age 20). The AJ addressed Complainant's disparate treatment allegation. Complainant argued that pursuant to Executive Order 13562, Recruiting and Hiring Students and Recent Graduates, enacted by the President in 2010, violated the ADEA and Title VII because it requires federal agencies to push out older workers in favor of younger workers. She also argued that recruitment of younger people through Facebook and other social networking sites put older workers at a disadvantage as older people use computers less often than younger people. Further, Complainant argued that this is a form of affirmative action because jobs are being reserved for younger people. The AJ found, however, that Complainant failed to proffer any evidence that the Agency exclusively recruited through social media. Additionally, the AJ found that Complainant failed to establish a prima facie case of disparate impact. Complainant failed to demonstrate that a statistical disparity existed that was linked to the challenged practice or policy. Complainant, according to the Agency, failed to show any statistical disparities. The AJ found that an analysis of the data showed that there was no significant disparity based on the number of applicants in each age bracket. With regard to Complainant's disparate treatment claim, the AJ found that Complainant established a prima facie case of age and sex discrimination; however, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its action. Specifically, Complainant was not selected because she was not on the Best Qualified list. The AJ found that Complainant failed to demonstrate that the Agency's proffered reason was a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues only that the AJ erred in finding that she failed to establish that the Agency's policy created a disparate impact on older workers. In order to support her argument, Complainant contends that the Agency distorted the evidence to include selections that occurred after she filed her complaint. Complainant also reiterates arguments made before the AJ that the Agency's use of Facebook to recruit for the position demonstrates that the Agency desired to attract younger applicants. The Agency, among other things, requests that we affirm the AJ's decision. 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding. The Commission has discretion to review only the issue specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999). As noted above, Complainant on appeal only argued that the AJ erred in finding that she did not establish that the Agency's policies had a disparate impact on older employees. Accordingly, we decline to address the AJ's finding that Complainant failed to establish that she was subjected to disparate treatment when she was not hired for the position. The Commission, instead, will focus on Complainant's concerns regarding the AJ's disparate impact findings. To establish a prima facie case of disparate impact Complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion"). Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id.; Obas v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002). The burden is on Complainant to show that "the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (August 31, 2000). On appeal, Complainant argues that the Agency distorted the evidence to include selections that occurred after she filed her complaint in order to show that older applicants were hired at an equitable rate when compared to younger applicants. We note however, that the AJ's analysis of the rate of hiring older and younger employees was limited specifically to the statistics related to this particular nonselection. The AJ did not rely on any other selections when she determined that older applicants and female applicants were referred and hired at an equitable rate. Therefore, Complainant's concerns regarding the "distorted evidence" is not material to the analysis. With regard to Complainant allegations that the Agency reserved jobs for "youth," we find that nothing in the record supports her contentions that this took place. Complainant's main argument is that the Agency used Facebook to recruit for the position, but as the AJ found that Complainant "presented no evidence that the Agency exclusively recruits through social medial." We find that Complainant has not put forth any evidence beyond her mere assertions that the Agency is reserving jobs for younger applicants. Accordingly, we find that Complainant has failed to show that a statistical disparity existed and the disparity is linked to the challenged practice or policy. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency FO adopting the AJ's finding that Complainant failed to demonstrate that she was discriminated against as alleged. 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 ___11/15/12_______________ Date 2 0120122339 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 7 0120122339