U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box Washington, B.C Gary J. Aguirre, Complainant,

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1 Ij) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box Washington, B.C Gary J. Aguirre, Complainant, v. Christopher Cox, Chairman, Securities and Exchange Commission, Agency. Appeal No ' Hearing No X Agency No DECISION On My 26, 2006, complainant filed an appeal from the agency's June 27, 2006, 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 appeal is deemed timely and is accepted pursuant to 29 C.F.R (a). For the following reasons, the Commission VACATES the agency's final order. BACKGROUND The record reflects that complainant applied for 23 different attorney positions at the agency in various offices nationwide in 2003 and Complainant was hired under Vacancy Announcement DC, which closed June 25, 2004, as an SK-14 Trial Attorney in the agency's Division of Enforcement in Washington, D.C. 2 1 Due to a new data system, this case has been re-designated with the above-referenced appeal number. 2 In June 2005, complainant's employment was terminated shortly before the end of his probationary period. Complainant's termination is not at issue in this case.

2 On June 24, 2004, complainant filed an EEO complaint alleging that he was discriminated against on the bases of race (Caucasian), national origin (Hispanic), sex (male), and age (D.O.B. 3/7/40) when: (1) The agency failed to select him for the following Vacancy Announcements: a DC; k DP (re-posted as ); b TR; DP; c DC; m DC; d SF; n DC; e MB; o DW; f DC; p MK; g DC; q MK; h DC; r DJ; i DC; s TR; j MB; (2) The agency failed to select him for an SK-14 position in the San Francisco District Office, as advertised in the Legal Career Center's May 30, 2003 posting; (3) The agency failed to select him for a position in the agency's Northeast Regional Office in response to the special application he submitted on March 1, 2004; and (4) The agency cancelled Vacancy Announcement DP without filling the position. On August 24, 2004, the agency issued complainant a Notice of Partial Acceptance. The agency issued several revised notices, ultimately dismissing claims (l)(a)-(l)(f) for untimely EEO Counselor contact and accepting claims (l)(g)-(4) for investigation. The agency's November 18, 2004 revised notice, which dismissed claims (l)(a)-(l)(f), informed complainant that "[a] partial dismissal may be reviewed by an EEOC administrative judge [(AJ)] if a hearing is requested on the accepted issues; a partial dismissal may not be appealed until final action is taken on the merits of the accepted applications. 29 C.F.R (b)." At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and a notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. On July 13, 2005, the agency filed a motion for a decision without a hearing, arguing that complainant failed to establish a prima facie case of discrimination with respect to all claims. The agency further argued that complainant failed to establish that the agency's articulated reasons for its actions were a pretext for unlawful discrimination. On August 15, 2005, complainant filed a declaration opposing summary judgment. Complainant separately filed a

3 motion in opposition to the agency's motion for summary judgment. In his motion, complainant argued that a decision without a hearing was not appropriate because the agency had failed to provide a list of undisputed material facts; he was denied the opportunity to conduct necessary discovery; and the agency improperly dismissed six of his nonselection claims for untimely EEO counselor contact. Complainant further argued that he had established a prima facie case of discrimination and that the agency had failed to provide legitimate, nondiscriminatory reasons for its actions. Complainant also submitted a motion to strike testimonial evidence submitted by the agency. On August 25, 2005, the agency responded to complainant's opposition motions. On September 7, 2005, complainant responded to the agency's response. Despite complainant's objections, the AJ assigned to the case granted the agency's motion and issued a decision without a hearing on June 14, The AJ held that complainant failed to establish that the agency's legitimate, nondiscriminatory reasons for the nonselections were a pretext for unlawful discrimination. The AJ further held that complainant failed to establish that his applications were observably superior to the selectees' applications. The AJ's decision did not address the six nonselection claims which were dismissed by the agency as untimely or complainant's argument that the investigative record was incomplete. The AJ's decision denied complainant's motion to strike certain pieces of evidence. The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination based on his race, national origin, sex, and age as alleged. CONTENTIONS ON APPEAL On appeal, complainant argues that the AJ erred in granting the agency's motion for summary judgment and reiterates arguments made below. Complainant also argues that the AJ failed to permit "reasonable discovery" and improperly denied complainant's motion to strike evidence offered by the agency. Complainant also argues that the AJ's decision should be vacated because the AJ failed to address the six claims that the agency had dismissed without an investigation. In response, the agency requests that we affirm its final order, which fully adopted the AJ's decision. The agency argues that the AJ's issuance of a decision without a hearing and without further discovery was appropriate and should be affirmed. The agency also argues that the six nonselection claims were properly dismissed for untimely EEO Counselor contact. 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 (a) (stating that a "decision on an appeal from an agency's final action shall be based on a de novo review..."); see also EHOC Management Directive 110 (MD-110), Chapter 9, VLB. (November 9, 1999). (providing that an AJ's "decision to issue a decision without a hearing pursuant to [29 C.F.R.

4 (g)] will be reviewed de novd"}. 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"). Claims (l)(a)-(l)(f) As an initial matter, the AJ erred in failing to address complainant's objection to the agency's dismissal of claims (l)(a)-(l)(f). Once complainant requested a hearing, the AJ was required to review the dismissal of these claims pursuant to 29 C.F.R (b). We note that MD-110, Chapter 5, IV.C., states that, where a hearing is requested, "the [AJ] will evaluate the agency's reasons for believing that a portion of the complaint met the standards for dismissal before holding a hearing... the [AJ's] decision on the partial dismissal will become part of the [AJ's] decision on the complaint and may be appealed by either party after final action is taken on the complaint." On November 18, 2004, the agency issued complainant a Revised Notice of Partial Acceptance/Partial Dismissal, which dismissed claims (l)(a)-(l)(f) for untimely EEO Counselor contact. The agency found that complainant should have reasonably suspected that discrimination occurred when he was notified of his nonselections between November 19, 2003 and January 29, However, complainant did not initiate EEO counseling until April 16, 2004, well after expiration of the forty-five (45) day limitation for all six claims. Complainant argues that he was not aware of the 45-day time limit until his attorney informed him of the period on April 16, Complainant also indicates that he had no "knowledge, suspicion, or belief of the identity of the person to whom an offer had been extended or the qualifications of any person who had received an offer for the positions" before April The agency argues that complainant had constructive knowledge of the 45-day deadline because complainant had applied for jobs and interviewed at multiple agency offices that have EEO posters with the information about the deadline posted in publicly accessible areas. EEOC Regulation 29 C.F.R (a)(l) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No (February 11, 1999). Thus, the time limitation is not

5 triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. McLouglin v. Department of the Treasury, EEOC Request No. 05A01093 (April 24, 2003). EEOC Regulation 29 C.F.R (a)(2) provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them; that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred; that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits; or for other reasons considered sufficient by the agency or the Commission. Upon review, we find that the agency improperly dismissed the claims for untimely EEO Counselor contact. The record reflects that complainant was informed that he was not selected for the positions at issue between November 19, 2003 and January 29, However, complainant indicated that he was unaware of the identity of the selectees until April 16, 2004 and could not have suspected discrimination prior to that date. As such, we find that complainant did not reasonably suspect discrimination until April 16, 2004, and his EEO Counselor contact on that date was therefore timely. We note that the Commission has held that the agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. Williams v. Department of Defense, EEOC Request No (August 25, 1992). The agency has not met this burden here. Its argument that EEO posters were posted in publicly accessible areas does not address complainant's reasonable suspicion argument. Claims (l)(g)-(4) 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 (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, (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

6 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. Department of Defense, 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 (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). In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the McDonnell Douglas analytical framework to an ADEA disparate treatment claim). First, complainant must establish aprima 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. Next, the agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, then the complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, (1983). We concur with the AJ's determination that the agency provided legitimate, nondiscriminatory reasons for not selecting complainant for the sixteen aforementioned positions. Agency officials testified or provided statements in the record that complainant was not selected for fourteen of the positions because he was not qualified or because other individuals were more qualified for the positions. With respect to claim (l)(k), Vacancy Announcement DP (re-posted as ), the agency indicated that complainant was not considered because the position was only

7 open to current agency employees. Regarding claim (4), Vacancy Announcement DP, the agency indicated that no selection was made because the announcement was cancelled. Accordingly, we find the agency has met its burden of production to articulate a legitimate, nondiscriminatory reason for its actions. Complainant now bears the burden of proving by a preponderance of the evidence that the agency's reasons were a pretext for discrimination. Complainant can do this directly by showing a discriminatory reason more likely motivated the agency or indirectly by showing that the agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. In a non-selection case pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, the agency has broad discretion to carry out personal decisions and should not be second-guesesd by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259. Furthermore, employers have greater discretion when choosing management level employees. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). With respect to claim (l)(k), we find that the AJ properly issued summary judgment on this claim because complainant has not shown that the agency's articulated reasons for its actions were a pretext for discrimination. The record contains a copy of Vacancy Announcement DP (re-posted as ), which specifically indicates that the position was only open "Commission-Wide," and complainant was not employed at the agency at that time. Therefore, complainant has failed to establish pretext with respect to claim (l)(k). With respect to claims (l)(g)-(l)(j) an d (l)(l)-(4), however, the Commission finds that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact in dispute, such as whether complainant was not qualified for the positions in question. We further conclude that the investigation record was not complete, which should have precluded a decision by summary judgment. See Petty, EEOC Appeal No. 01A A review of the record reveals that the EEO investigator gathered the relevant vacancy announcements, attorney certificates, and selection certificates, along with a number of the selectees' applications for all fifteen positions. However, the agency failed to provide the EEO investigator with information on how candidates were selected for interviews and specific applicant/interview scoring sheets (if applicable) for the majority of the positions in question. Moreover, the record does not contain application materials for several of the individuals selected for the positions in question. As a result, we are unable to discern from the record how applicants were chosen for interviews; whether complainant was unfairly excluded from the interview process; if granted an interview, whether complainant was not selected in a discriminatory manner; or if complainant's application was demonstrably superior to those of the selectees. See Garrett v. United States Postal Service, EEOC Appeal No. 07A30090 (September 29, 2004) (finding summary judgment inappropriate, in part, because "the agency failed to document with written materials the particular selection process followed, as well as the promotion package indicating the candidates referred for consideration and the ultimate selectee"); see also Petty, EEOC Appeal No. 01A24206 ("the [AJ] erred when he concluded no

8 evidence of falsity existed when the agency was not required to turn over information- which... may have proven such pretext"). Therefore, we find that the AJ should have granted complainant's request for further discovery and required the agency to complete the record. The record also contains several questions of agency officials' credibility. The AJ relied heavily upon the statements or testimony of agency officials in determining why complainant was not selected for the positions in question. Moreover, the AJ relied upon statements made by agency officials to determine whether any alleged comments made during complainant's interviews were indicative of age discrimination or whether Vacancy Announcement DP was closed by the agency. However, the courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted 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." Pedersen v. Department of Justice, EEOC Request No (February 24, 1995). Since the testimony of agency officials involved in this case raises the issue of witness credibility, we find that a decision without a hearing was improper. The hearing process is intended to be an extension of the investigative process, 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." See MD-110, Chapter 7, 1; see also 29 C.F.R (e). "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." Mi S. Bang v. United States Postal Service, EEOC Appeal No (March 26, 1998); see also Peavley v. United States Postal Service, EEOC Request No (October 31, 1996); Chronister v. United States Postal Service, EEOC Request No (April 25, 1995). CONCLUSION Accordingly, the agency's dismissal of claims (l)(a)-(l)(f) is REVERSED. The agency's final order finding no discrimination with respect to claim (l)(k) is AFFIRMED. With respect to claims (l)(g)-(l)(j) and (l)(l)-(4), in light of the disputed issues of material fact in the instant record, we find that issuance of a decision without a hearing was not warranted under 29 C.F.R (g). Therefore, we VACATE the agency's final order finding no discrimination in claims (l)(g)-(l)(j) and (l)(l)-(4). Claims (l)(a)-(l)(j) and (l)(l)-(4) are REMANDED for a hearing in accordance with this decision and the ORDER below. 3 ORDER The agency shall submit to the Hearings Unit of the Washington Field Office a copy of the complaint file within fifteen (15) calendar days of the date this decision becomes final. The 3 Since we are remanding for further discovery and a hearing, we do not address complainant's motion to strike evidence submitted by the agency.

9 agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearing Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R and the agency shall issue a final action in accordance with 29 C.F.R IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408) 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 The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R (a). The 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 , , and 29 C.F.R (g). Alternatively, the 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." 29 C.F.R and 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0408) 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 ; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

10 and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C 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 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 (c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0408) 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 that the Court appoint an attorney to represent you and that the Court 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 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: Carl ton M. Hadden, Director Office of Federal Operations JUN Date

11 CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Gary J. Aguirre 402 West Broadway Suite 400 San Diego, CA Deborah Balducci, EEO Director Office of Equal Employment Opportunity Securities and Exchange Commission 100F. St.,NE Washington, DC jun 1 9 ZOOS Date Equal Opportunity Assistant