Stephen M. Koslow v. National Labor Relations Board
01A12763
March 7, 2002
.


Stephen M. Koslow,
Complainant,

v.

Peter J. Hurtgen,
Chairman,
National Labor Relations Board,
Agency.

Appeal No. 01A12763

Agency No. HDQ 97-01

Hearing Nos. 100-A0-7446x and 100-A0-8129x<1>

DECISION

INTRODUCTION

Stephen M. Koslow (“complainant”) filed a formal complaint against the
National Labor Relations Board (“the agency”), claiming that the agency
discriminated against him when it refused to hire him for an agency
attorney position because of his race (White), his age (date of birth of
March 18, 1944), and his prior EEO activity (filing instant complaint).
Complainant was thus alleging violations of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”)
and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq. (“the ADEA”).  An administrative judge (“the AJ”)
issued a decision on this matter without first holding a hearing, and
the agency adopted this summary judgment decision in full.

Complainant then filed a timely notice challenging this final agency order
(“FAO”).  We, the United States Equal Employment Opportunity Commission
(“EEOC” or “the Commission”), accepted complainant's appeal pursuant
to 29 C.F.R. § 1614.405(a).  On appeal, complainant argues that the AJ
should not have issued a decision without first holding a hearing on
the merits of his claims.  If anything, complainant contends, the AJ
should have issued summary judgment in his favor (at least on his race
discrimination allegation).  The agency, on the other hand, urges us to
uphold its (and the AJ's) earlier ruling.

We find that the AJ did err in granting summary judgment in favor of
the agency – but that issuing such a decision in favor of complainant
would have been a mistake, too.  For the reasons set forth below, we
conclude that the FAO adopting the AJ's decision should be vacated,
and that the entire complaint should be remanded for a full hearing.

ISSUES PRESENTED

Whether the AJ erred in ruling against complainant on his race, age,
and reprisal claims without first holding a hearing

Whether the AJ should have entered summary judgment against the agency,
instead, on complainant's race discrimination claim

BACKGROUND

Complainant has a depth and breadth of experience as a labor lawyer and
appellate advocate.  After graduating from the University of Virginia
School of Law, he was employed by the agency itself for over a decade
(first as a law clerk-trainee and ultimately as a well respected and
admired supervisory attorney).  He went on to work for the Department
of Justice, in private law firms, as a solo practitioner, and for the
American Association of Retired Persons (“AARP”).  While traveling this
career path, complainant published various articles on labor law issues,
obtained an LL.M in labor law from New York University (graduating first
in his class), and litigated and argued complex labor matters before
administrative agencies and federal courts of appeal.

Sometime in late 1993, complainant began to seek employment as a staff
attorney with the Appellate Court Branch (“ACB”) at the agency's
headquarters in Washington, D.C.  This position would have enabled
complainant to do labor-related appellate advocacy full time, and thus
appealed to complainant greatly.  Accordingly, complainant talked with the
hiring official for ACB (“HO”), who told complainant that the agency was
under a hiring freeze.  Complainant asked HO if it would be all right if
he checked back periodically to see if the hiring freeze had been lifted
and/or whether he might later be considered for a position with ACB.
HO indicated that that would be fine with him.

Over the course of the next three years, complainant contacted HO multiple
times to inquire whether ACB was yet hiring.  Each time, HO told him that
the agency was still under a hiring freeze, and that it would therefore
not be possible to bring complainant in for an interview.  In late
1996, however, complainant learned that ACB had in fact begun hiring new
attorneys.  After hearing this news (and apparently believing that dealing
with HO had not advanced his application efforts), complainant decided to
contact HO's supervisor to request an interview.  Complainant discussed
his background and credentials with HO's supervisor, and told her that
several of his former colleagues at the agency had even called HO to
recommend him highly for a position with the agency.  HO's supervisor
promised to speak with HO about calling complainant for an interview, and
said she would get back to complainant about the issue.  HO's supervisor
never did call back, however, and complainant thus contacted HO again.
In the meantime (and even though the supervisor had not communicated
it to complainant), HO's supervisor had apparently told HO to bring
complainant in for an interview.  Hence, when complainant called HO,
HO answered the phone by immediately stating something to the effect of
“I suppose you want to come in for an interview.”  Complainant indicated
that he did, and the two scheduled one for November of 1996.

Over the years (while complainant had been waiting for an end of the
alleged hiring freeze(s) and was trying to convince HO to interview
him), complainant had provided HO with various writing samples (such as
appellate briefs and articles he had written).  When the two were setting
the date for his interview, complainant asked HO if he needed to bring any
additional materials with him to the interview.  HO told complainant to
bring in his law school and college transcripts.  Complainant responded
that he was unsure whether he could locate them (having completed law
school and college nearly 30 years ago), but that he would try.

On the day of his agency interview, complainant met with HO and a
“hiring committee” that HO had created to help him vet candidates.
According to complainant, it was clear from the start that neither HO
nor any member of the hiring committee was at all interested in seriously
considering him for one of the open positions.  Complainant states that
his interview with HO, specifically, lasted less than fifteen minutes,
and that HO appeared displeased with having to spend even that much time
with complainant.  During their meeting, complainant supplied HO with
the only transcript he had in his possession (his New York University
LL.M grades), a letter of recommendation from one of the agency's former
General Counsels, and a recent appellate brief he had filed in court while
working for AARP.  HO allegedly showed no interest in complainant's work
product or experience, however, and supposedly asked complainant only two
questions (i.e., whether he knew the position in question was a GS-13,
and whether he knew what the salary for a GS-13 was).

HO then escorted complainant out of his office and into interviews
with four members of the hiring committee.  Complainant claims that
the hiring committee showed a similar, and obvious, lack of curiosity
about complainant's accomplishments and abilities.  They allegedly
had not read any of the pre-interview writing samples complainant had
submitted, took few (if any) notes during the interviews, failed to probe
complainant about his experience as a labor lawyer or appellate advocate,
and focused instead on the issue of whether complainant would be able to
work well with others and submit to work product revision and supervision.
Complainant claims he reassured the hiring committee that he would have
no problem at all in deferring to supervisory authority and oversight.

Complainant waited several weeks after these interviews before calling
HO to find out whether the agency had made a decision on his application.
HO told him that the agency had not yet reached a conclusion, but that it
was not his practice to call non-selected candidates back in any event.
Subsequently, when it became clear that complainant was not going to be
hired, complainant filed a formal complaint of discrimination with the
agency's EEO office, on January 22, 1997, alleging that the agency's
failure to select him constituted unlawful age-based discrimination.<2>
Complainant states that soon after this charge was filed, he received
a call from a professional colleague inquiring about complainant's
age claim.  This colleague purportedly told complainant that one of the
colleague's friends (someone who worked at the agency) had overheard HO
say, in reference to complainant's application for employment with ACB,
that “you can't teach old dogs new tricks.”  When complainant pressed
his colleague for the name of this “friend,” the colleague refused to
provide it.

Meanwhile, the agency accepted complainant's complaint (which now
included reprisal, in addition to age, as a basis for discrimination)
for investigation.  During this investigation, HO and other members of the
hiring committee revealed the agency's side of the story.  HO explained
that ACB's overriding concern in hiring new attorneys was to find
ones with an aptitude for writing appellate briefs.  Writing ability,
prior legal scholarship, law review experience, law school performance,
judicial clerkships, and/or knowledge of labor law were critical criteria.
In addition, HO said, ACB placed great weight on what jobs applicants
had held after law school, what position the applicant currently
was in, and how the applicant performed on the relevant interviews.
Given these factors, HO noted, complainant simply did not meet the
agency's expectations.

For example, HO said, complainant failed to provide the necessary college
and law school transcripts.  This transcript requirement, HO testified,
was imposed uniformly to all applicants, and complainant's failure to
provide his was a fatal one.  So, too, was the fact that he did not have
any significant law school achievements (such as being on law review)
and had not served as a judicial clerk.  Further, HO stated, he and all
members of the hiring committee were quite concerned about HO's ability
to submit to the high degree of strict supervision customary in ACB.
The interviewers, in fact, unanimously agreed that complainant appeared
aloof and arrogant during his interviews, and generally performed very
poorly during them.  They allegedly believed that he displayed a sort
of self-righteousness that could have led to friction among co-workers,
and feared that he would be very difficult to work with.  Finally,
his job history appeared “spotty,” he supposedly had misrepresented the
nature of his employment with AARP on his application, he did not appear
to have a “good job” at the time he was being considered, and the other
applicants who ultimately were hired had “far better qualifications”
than complainant had.  According to the agency, these reasons alone
formed the basis of the agency's rejection of complainant.

The agency completed its investigation of complainant's claims on
or around November 10, 1997.  After receiving a copy of the record
of investigation, complainant requested a hearing before an EEOC
administrative judge.  The agency subsequently filed a motion for summary
judgment requesting that the AJ find no discrimination.  Complainant filed
an opposition to this agency motion, and also filed a motion for partial
summary judgment in favor of complainant.  In his opposition to the
agency's motion, complainant cited to various pieces of evidence in the
record that undermined the agency's purportedly legitimate explanations
for its failure to select him.  In his motion for partial summary
judgment, complainant also contended that during pre-hearing discovery,
HO admitted he took race into account when he selected four non-White
candidates for positions in ACB.<3>  Complainant cited testimony given
by HO, in which HO stipulated that these four were “affirmative action”
hires (and that a Black candidate had been given “extra credit” for being
Black, and two Hispanic candidates “got a leg up” because of their ethnic
background).  This, according to complainant, mandated summary judgment
in his favor (at least with respect to his claim of race discrimination).

The AJ disagreed.  On December 27, 2000, the AJ granted the agency's
motion for summary judgment and concluded that no discrimination had
occurred.  The AJ found that complainant had established a prima facie
case of age discrimination, but had failed to create a presumption of
race or reprisal discrimination.  In any event, the AJ said, the agency
had articulated legitimate, non-discriminatory reasons for not selecting
complainant (namely, that he had failed to measure up to the various ACB
hiring criteria).  Further, complainant “produced no evidence whatsoever
that the [a]gency's rationale was pretextual.  Complainant merely
argued that his qualifications and experience should have guaranteed
his selection; however, [c]omplainant provided no evidence to address
the concerns expressed by the [a]gency selection officials regarding
[c]omplainant's interview, personality, willingness to follow supervision,
previous employment history, and misleading application.”  The AJ's
Decision Granting Summary Judgment in Favor of the Agency (Dec. 27, 2000),
at 8.  For instance, while complainant “alleged that [HO] had admitted
during his ‘sworn testimony' that he had given certain applicants an
advantage because of their race . . . [c]omplainant completely failed to
produce any evidence in support of his naked allegations.  Ultimately,
[c]omplainant was simply unable to adduce any evidence showing that the
[a]gency failed to select him because of a discriminatory or retaliatory
animus.”  Id.  Accordingly, the AJ decided, summary judgment in favor
of the agency was appropriate.

The agency issued an order adopting this decision on or around February
22, 2001.  Complainant filed a timely notice challenging this FAO,
which we docketed at this appeal.  Both parties submitted statements
on appeal.  After considering these statements (and the entire record),
we now turn to the question of whether the AJ  issued summary judgment
in favor of the agency and/or whether the AJ should have issued partial
summary judgment in favor of the complainant instead.

ANALYSIS AND FINDINGS

We are charged with reviewing the AJ's conclusions, and the FAO adopting
them, under the de novo standard of review.  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 EEOC Management Directive
for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (“EEO-MD-110”), at 9-16
(providing that an administrative judge's “decision to issue a decision
without a hearing . . . will be reviewed de novo”).  This essentially
means that we look at the case with fresh eyes, and are free to accept
or reject at will the AJ's and agency's legal and factual conclusions.

That said, we must determine whether AJ should have held a hearing
before issuing a decision finding no discrimination.  No one disputes
that complainant requested such a hearing here, and complainants
generally are entitled to do so.  See, e.g., 29 C.F.R. § 1614.109(a)
(“When a complainant requests a hearing, the Commission shall appoint an
administrative judge to conduct a hearing . . . .”)  However, in certain
limited circumstances, the Commission's rules do allow an administrative
judge to rule on the merits of a case without first conducting a full
evidentiary inquiry.  According to 29 C.F.R. § 1614.109(g) (the relevant
regulation), if:

a party believes that some or all material facts are not in genuine
dispute and there is no genuine issue as to credibility, the party
may . . . file a statement with the administrative judge prior to the
hearing setting forth the fact or facts and referring to the parts of
the record relied on to support the statement.  The statement must
demonstrate that there is no genuine issue as to any such material
fact . . . .  The opposing party may file an opposition . . . [which]
may refer to the record in the case to rebut the statement that a fact
is not in dispute . . . .  After considering the[se] submissions, the
administrative judge may order that discovery be permitted on the fact
or facts involved, limit the hearing to the issues remaining in dispute,
[or] issue a decision without a hearing . . . .

29 C.F.R. §§ 1614.109(g)(1), (2) [emphasis added]; see also EEO-MD-110,
at 7-15 [emphasis added]  (providing that an administrative judge may
issue a decision without a hearing if the administrative judge concludes
that “some or all of the material facts are not in genuine dispute”).

This regulatory rule is patterned after the summary judgment procedure set
forth in current Rule 56 of the Federal Rules of Civil Procedure.  See,
e.g., Feitshans v. United States Postal Service, EEOC Appeal No. 01996239
(Dec. 21, 2001); see also Fed. R. Civ. P. 56(c) (stipulating that summary
judgment is proper if “there is no genuine issue as to any material
fact . . .”).  We thus have applied federal court interpretations of
Rule 56 when construing 29 C.F.R. § 1614.109(g).  Indeed, in determining
whether an EEOC administrative judge properly issued a decision without
a hearing under this provision, we have paid particular attention to the
U.S. Supreme Court's pronouncements on this “summary judgment” issue
generally – and to how it has defined “genuine issue” and “material
fact,” in particular.

According to the high Court, “the mere existence of some alleged
factual dispute between the parties will not defeat . . . summary
judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986).
The Court has ruled that “substantive law will identify which facts are
material,” and that summary judgment will be precluded only if there is
a dispute “over facts that might affect the outcome of the [case] under
governing law.”  Id. at 2510 (“Factual disputes that are irrelevant
or unnecessary will not be counted.”)  Similarly, the Court has also
stated that summary judgment will only be improper if the dispute about
a material fact is “genuine” – that is, “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”  Id.;
see also Trimble v. United States Postal Service, EEOC Appeal No. 01A01124
(Aug. 22, 2001); Gershon v. Department of Veterans Affairs, EEOC Appeal
No. 01982252 (Aug. 9, 2001); and Miller v. Department of Transportation,
EEOC Appeal No. 01982164 (Aug. 2, 2001) (all applying this Supreme Court
summary judgment standard in appeals before this Commission).

However, the party opposing summary judgment must do more than merely
recite facts or rest on his pleadings to demonstrate that such
an genuine dispute of material fact exists.  “The party opposing
summary judgment must identify the disputed facts in the record
with specificity or demonstrate that there is a dispute by producing
affidavits or records that tend to disprove the facts asserted by the
moving party.  In addition, the non-moving party must explain how the
facts in dispute are material under the legal principles applicable to
the case.”  EEO-MD-110, at 7-15; cf. Celotex Corporation v. Catrett,
106 S.Ct. 2548, 2553 (1986) (stating that the nonmoving party must go
“beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,' designate ‘specific
facts showing that there is a genuine issue for trial'”); Anderson, 106
S.Ct. at 2511 (noting that the party opposing summary judgment “must set
forth specific facts showing that there is a genuine issue for trial”);
and Fed. R. Civ. P. 56(e) (providing that “[w]hen a motion for summary
judgment is made and supported . . . an adverse party may not rest upon
the mere allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue
for trial.  If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse party.”)

We believe that complainant met this burden in attempting to oppose the
agency's motion for summary judgment in this case.<4>  The evidence
complainant submitted for the AJ's consideration revealed multiple
disputes of material facts (i.e., disputes that reasonably could
be resolved in complainant's favor over facts that would definitely
affect the outcome of the case under the relevant substantive law).
Most notably, complainant provided affidavits and testimony refuting the
agency's legitimate non-discriminatory reasons for rejecting complainant
and tending to show that such reasons might be pretextual.  For instance,
complainant questioned the agency's contention that all applicants were
required to submit college and law school transcripts, and that his
application was incomplete because he failed to do so (by pointing to the
“application packets” of several candidates selected by HO which did not
in fact contain such transcripts, and by referencing the statements of
the agency EEO investigator, who claimed that his transcripts were in his
NLRB personnel file from his earlier agency employment in any event).
He also disputed the agency's assertions that other candidates were
“far better” qualified, given the selection criteria, than he was (by
providing an affidavit listing his undeniable academic accomplishments and
practical skills as a labor lawyer and appellate advocate, by pointing
to glowing references from former agency colleagues, and by presenting
statistical and anecdotal evidence showing that the agency's “word of
mouth” recruiting practices resulted in the systematic hiring of younger
lawyers who had comparatively little experience writing appellate briefs
or making appellate oral arguments).  Moreover, complainant refuted the
agency's claims that he performed poorly during the relevant interviews,
and that he displayed a defiant and non-deferential attitude (by
submitting a declaration in which he alleged that he assured interviewers
that he was very interested in the position in question and would have
no problems with working under supervision).  He also undermined the
agency's assertion that he did not have a “good job” at the time he was
evaluated (by demonstrating that he was a solo practitioner at the time,
and noting that HO could not explain why this did not amount to a “good
job”).  He also contested the agency's contention that it had followed
its normal hiring procedures in evaluating complainant (by showing that
neither HO nor anyone else on the hiring committee read the work product
he submitted with his application before the interviews, or questioned
him during the interviews about his prior experience or abilities).

Complainant thus challenged most (if not all) of the agency's proffered
reasons for its actions and questioned the very way in which his candidacy
was handled.  In deciding whether to grant the agency's motion for summary
judgment, the AJ was obliged to credit complainant's version of these
material facts.  As the Supreme Court has pointed out, at the summary
judgment stage, “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.”  Anderson,
106 S.Ct. at 2513; see also Butler v. United States Postal Service,
EEOC Appeal No. 01991252 (Nov. 14, 2001) (stating the same).  Prior to
holding a hearing, an administrative judge may not conduct a “trial on
affidavits,” make “[c]redibility determinations” or “weigh the evidence.”
See Anderson, 106 S.Ct. at 2513; see also Leonard-Saliu v. United States
Postal Service, EEOC Appeal No. 01996971 (Nov. 14, 2001) (where we held
that “if a case can only be resolved by weighing conflicting evidence,
summary judgment is not appropriate”); Staley v. United States Postal
Service, EEOC Appeal No. 01992696 (Nov. 9, 2001) (where we stated that an
administrative judge “may only properly consider summary judgment after
there has been adequate opportunity for development of the record”);
and McNeil v. United States Postal Service, EEOC Appeal No. 01991886
(Nov. 6, 2001) (where we provided that “summary judgment is not to
be used as a ‘trial by affidavit,'” and that “when a party submits an
affidavit and credibility is at issue, ‘there is a need for strident
cross-examination and summary judgment on such evidence is improper'”).

Here, in connection with the agency's summary judgment motion, the AJ
essentially viewed the evidence in the light most favorable to the agency.
He also conducted a “trial by affidavit,” assessed the credibility
of the parties, and weighed the available evidence (most obviously by
crediting the explanations HO and the interview panel provided for not
selecting complainant over the arguments complainant raised showing that
these agency reasons were false).<5>  AJ erred in doing so without first
holding a hearing.  As we have noted many times in the past, a hearing
is intended to be an extension of the investigative process itself,
and is designed to “ensure that the parties have a fair and reasonable
opportunity to explain and supplement the record and to examine and
cross-examine witnesses.”  EEO-MD-110, at 7-1.  “Truncation of this
process, while material facts are still in dispute and the credibility of
witnesses is still ripe for challenge, improperly deprives complainant
of a full and fair investigation of [his] claims.”  Erickson v. United
States Postal Service, EEOC Appeal No. 01A1149 (Oct. 31, 2001); Valdez
v. United States Postal Service, EEOC Appeal No. 01A11835 (Oct. 26, 2001);
and Trimble v. United States Postal Service, EEOC Appeal No. 01A01124
(Aug. 22, 2001).  That is exactly what happened here.

CONCLUSION

We therefore conclude that a hearing should have been held, and that
the AJ erred when he issued a summary judgment in favor of the agency
instead.<6>  Accordingly, the FAO implementing the AJ's finding of no
discrimination is vacated, and this matter is remanded to the agency
for further processing in accordance with the ORDER below.

ORDER

The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final.  The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final.  The agency
shall provide written notification to the Compliance Officer at the
address set forth below  that the complaint file has been transmitted
to the Hearings Unit.  Thereafter, the AJ (or whichever administrative
judge is appointed to conduct the hearing) shall issue a decision on
the complaint in accordance with 29 C.F.R. § 1614.109, and the agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.


IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 complainant.  If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order.  See 29 C.F.R. §
1614.503(a).  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 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, 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.”  See
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).  If complainant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated.  See 29 C.F.R. § 1614.409.



STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this
case if 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 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; EEO MD-110, at 9-18.  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 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request.  Any supporting documentation
must be submitted with the 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 (R0900)

This is a decision requiring the agency to continue its administrative
processing of complainant's complaint.  However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court  within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one
hundred and eighty (180) calendar days of the date complainant filed
complainant's complaint with the agency, or filed complainant's appeal
with the Commission.  If complainant files a civil action, complainant
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 complainant's case in court.  “Agency” or “department”
means the national organization, and not the local office, facility
or department in which complainant works.  Filing a civil action will
terminate the administrative processing of the complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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

March 7, 2002
__________________
Date


1The relevant administrative judge
consistently referenced a Hearing No. 100-A0-8129x in correspondence
found throughout the record.  The parties to this complaint, however,
consistently referenced a Hearing No. 100-A0-7746x.  We are unsure why
this discrepancy exists, and thus provide both hearing numbers here.

2In March of 1997, complainant amended his complaint to allege that
“[s]ince on or about November 15, 199[6], the [a]gency has failed and
refused to select me for employment as an attorney in its Appellate
Court Branch because I complained to the [a]gency's EEO [o]ffice that
the Appellate Court Branch was discriminating against me and other older
applicants in violation of the ADEA.”  Complainant's Letter to Agency
Amending Complaint (Mar. 19, 1997).

3This revelation led complainant to amend his complaint again to add
race as a basis for his non-selection.

4In his brief supporting the instant appeal, complainant reiterates some
of these alleged disputed material facts.  However, when reviewing the
propriety of an administrative judge's decision not to hold a hearing,
we will not consider evidence presented for the first time on appeal.
The relevant inquiry is whether AJ made the correct decision not to
hold a hearing based on the evidence in front of him at the time the
decision was made.  Thus, a complainant must present the administrative
judge with relevant evidence necessary to preclude summary judgment
before the administrative judge issues his or her decision without
a hearing.  See Wilson v. Social Security Administration, EEOC Request
No. 05980330 (Dec. 14, 2000) (where we refused to overturn a summary
judgment based on evidence presented on appeal, noting that even though
“complainant raised new arguments on appeal in attempting to rebut the
[administrative judge's] determination [of the merits of the case],” the
complainant “failed to raise these arguments before the [administrative
judge], despite the opportunity she was given to do so”); and Manning
v. Department of the Army, EEOC Appeal No. 01A00395 (Sept. 20, 2001)
(providing that “evidence not before the [administrative judge] cannot
be considered on appeal regarding the issue of summary judgment”);
cf. EEO-MD-110, at 9-17 (providing that “[a]s a general rule, no new
evidence will be considered on appeal unless there is an affirmative
showing that the evidence was not reasonably available prior to or during
the hearing”).  Therefore, in determining whether the AJ erred in issuing
a decision without a hearing, we will analyze evidence presented to the
AJ himself, but will not consider arguments raised for the first time
in complainant's, or the agency's, appeal brief.

5As complainant points out in his appeal brief, for example, the
AJ based his findings of fact “entirely upon the statements [HO]
and his colleagues provided to the [a]gency's EEO [o]ffice, ignoring
[c]omplainant's evidence of what preceded the interview or his account of
what transpired during the interview.  Their accounts of [c]omplainant's
interview and their purported assessments of [c]omplainant are short
on specifics and details and long on purely subjective indictments of
[c]omplainant's attitude and personality.  Wherever they have attempted
to support their negative appraisals of [c]omplainant with objectively
verifiable factual assertions, [c]omplainant has demonstrated that these
assertions are false . . . .”  Complainant's Statement in Support of
Appeal (Apr. 25, 2001), at 45.

6For very same reasons, the AJ would have erred in issuing partial
summary judgment in favor of complainant on his race claim.  Complainant
himself conceded to the AJ that the agency “waffled back and forth on
whether race played a role in ACB's hiring decisions.”  Complainant's
Motion to Compel (Nov. 3, 2000), at 3 n. 1.  He contrasted the agency's
answers to his first set of interrogatories (in which the agency denied
that race played any part in its selection of any attorney hired), with
later agency modifications to these answers (where the agency conceded
that “[HO] testified that he considered the race of [four applicants]
as a factor when evaluating those candidates.”).  Id.  In the agency's
brief opposing complainant's motion for partial summary judgment on this
issue, however, the agency alleged that “race was but one in a number of
factors considered” and was not the “determining or primary” factor in
the decision to hire non-White candidates.  Further, the agency asserted,
complainant was not a candidate at the time the non-White applicants in
question were being evaluated.  See Agency's Opposition to Complainant's
Motion for Partial Summary Judgment and Reply to Complainant's Opposition
to Agency's Motion for Summary Judgment (Dec. 21, 2000), at 10.

 This evidence alone raises a dispute over the issues of whether – and
 to what extent – race was indeed considered by hiring officials as they
 deliberated on whether to hire complainant or some other candidate
 instead, and whether complainant even had standing to challenge
 the agency's purportedly race-based hiring in the first place.
 These issues are material to the adjudication of the race claim in
 question.  Therefore, viewing the evidence in the light most favorable
 to the non-moving party (which, in the case of complainant's partial
 summary judgment motion, is the agency), we believe the AJ would have
 erred in summarily concluding that race discrimination occurred here.
 This matter, too, must be more fully examined in a hearing, where the
 credibility of the various parties and explanations can be assessed
 first hand (and the resulting factual findings can then be squared with
 applicable law).

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