Abe U.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 4, 2016

0120140392 (E.E.O.C. May. 4, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Abe U.,1
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120140392

Hearing No. 480-2011-00532X

Agency No. 6Z1M10013

DECISION

Complainant filed an appeal from the Equal Employment Opportunity Commission
Administrative Judge (AJ)’s decision dated August 30, 2013, which effectively became the
Agency’s final decision, finding no discrimination with regard to his complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII)
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§621 et seq. See 29 C.F.R. § 1614.109(h)(i). For the following reasons, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

In his complaint, dated November 26, 2010, Complainant, an applicant for employment at the
Agency, alleged discrimination based on race (African-American), color (black), sex (male),
age (over 40), and in reprisal for prior EEO activity when on July 20, 2011, he received notice
that he had not been selected for the position of Financial Management Specialist, YA-0501-
02, Announcement Number EDW 10-163, for which he had applied. Upon completion of the
investigation of the complaint, Complainant requested a hearing and on August 30, 2013, the
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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AJ issued a decision without holding a hearing, finding no discrimination. The Agency did not
issue a final order and the AJ’s decision effectively became its final decision pursuant to 29
C.F.R. § 1614.109(h)(i). Complainant appealed from this decision.

ANALYSIS AND FINDINGS

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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. At the relevant time period at issue, Complainant, one of
28 applicants, applied but was not selected for the Financial Management Specialist position at
issue located at the Agency’s Edwards Air Force Base. The vacancy announcement reflected
that the primary purpose of the instant Financial Management Specialist position was to serve
as a Financial Administration Specialist providing qualitative and quantitative financial
management decision support to the decision maker. The incumbent was responsible for
financial activities and functions that influenced the management and direction of financial
management programs.

The Selecting Official (SO) indicated that she reviewed each applicant’s knowledge, skills, and
abilities narratives, resume, and academic information. The SO stated she then rated applicants
as either superior, highly qualified, qualified, or not qualified. The SO stated that the
applicants who were rated superior or highly qualified were offered an interview with
interview panelists. The SO stated that Complainant was rated qualified because his
application reflected his accounting and bookkeeping background and lacked any budget
analyst experience, as well as a low academic grade point average which was 2.65 for his BS
degree in accounting. Complainant was thus not offered an interview and he was not selected

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for the position at issue. The SO indicated that she selected a selectee who was the most
qualified applicant for the position at issue. Specifically, the SO stated that the selectee had
over eight years of continuous budget experience, her grade point average was 3.91 for her BS
degree in business administration, including her associate’s certificate in contract management,
and she was in the process of getting her masters of business administration. The record
indicates that at the time of application, Complainant had been a substitute teacher for 2nd to 8th
graders since November, 2000, and the selectee had been a Finance/Budget Analyst for
Financial Lead for Information Technology since July 2006.

The AJ noted that despite Complainant’s claim, the SO explained that the decision to utilize the
Expedited Direct Hiring Authority to fill the position at issue was not made by the SO, but
rather was made by higher-level officials elsewhere in the Agency who had sufficient data to
support its use. With regard to his disparate impact claim, the AJ found and we agree that
Complainant failed to identify what specific facially neutral standard he was challenging and
linking that standard to a statistically significant disparity concerning his nonselection. See
Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95 (1988); Dothard v. Rawlinson,
433 U.S. 321, 329 (1977).

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for his nonselection. Furthermore, we find that Complainant failed
to show that his qualifications for the position were plainly superior to the selectee’s
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). On appeal, Complainant merely reiterates his arguments presented before the AJ.
Based on the foregoing, we find that Complainant failed to show that the Agency’s action was
motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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

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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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the

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time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 4, 2016
Date