01a53931
11-02-2005
Ahmed S. Osman, Complainant, v. Andrew S. Natsios, Administrator, Agency for International Development (AID), Agency.
Ahmed S. Osman v. Agency for International Development
01A53931
November 2, 2005
.
Ahmed S. Osman,
Complainant,
v.
Andrew S. Natsios,
Administrator,
Agency for International Development (AID),
Agency.
Appeal No. 01A53931
Agency No. EOP-03-04
Hearing No. 100-2004-00614X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, an applicant for the position of
Program Management/Implementation Specialist for Non-Presence Countries
in the Middle East and South Asia, filed a formal EEO complaint on
January 7, 2003, alleging that the agency discriminated against him on
the bases of his race (African-American), national origin (Sudanese),
religion (Muslim), color (Black), age (D.O.B. February 25, 1942), and in
reprisal for prior EEO activity when he was not hired for the position
under Solicitation Nos. M/OP-01-1171 or M/OP-02-415.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On January 31, 2005, the AJ issued a Notice of Intent
to Issue a Decision Without a Hearing, which set out the time limits
for the parties responses. The agency filed its response to the AJ's
motion on February 15, 2005. By letter to the AJ, dated March 2, 2005,
complainant requested an extension of time to submit his response due,
in part, to his wife having undergone major surgery and needing his care
during her recovery. On that same date, the AJ issued an Order denying
complainant's request for an extension of time, stating that "complainant
has not demonstrated why he could not have timely notified the [AJ] of
his personal circumstances, well before the time that his reply was due."
(AJ's Order, March 2, 2005). Complainant then submitted a Request for
Clarification and Guidance, but the AJ again denied complainant's request
for an extension of time to submit a response, and on March 23, 2005,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that after viewing the evidence in a light most favorable
to complainant, a decision without a hearing was appropriate as there
were no genuine issues of material fact in dispute. The AJ found that
complainant submitted an application for the position at issue under
Solicitation No. M/OP-01-1171. On September 13, 2001, an evaluation panel
recommended a first and second choice selection, both of whom declined the
position, and as a result, the agency decided to re-advertise the position
under Solicitation No. M/OP-02-415. (Report of Investigation, 20; 23).
The AJ also found that when complainant called the agency to inquire as
to the status of his application under Solicitation No. M/OP-01-1171,
he was mistakenly informed by a Regional Contracting Officer (RCO)
that the solicitation had been canceled, and was not advised that it
had been re-advertised. As such, complainant did not re-apply for the
position under the new solicitation number. (R.O.I. 52).
The AJ found that with respect to Solicitation No. M/OP-01-1171, assuming,
arguendo, complainant established a prima facie case of race, national
origin, religion, color, age, and reprisal discrimination, the agency
nonetheless articulated legitimate nondiscriminatory reasons for not
selecting complainant. Specifically, the AJ found that complainant failed
to show that his qualifications for the Program Management/Implementation
Specialist position were observably superior to those of the selectees.
The evaluation panel members stated in their affidavit testimony that
complainant's application did not contain enough specific information
about his relevant experience and qualifications, in contrast to
the applications of the selectees which were much more specific and
contained concrete examples of relevant projects, assignments and skills.
(R.O.I., 89; 95-103; 108). The Chair of the panel further stated that
complainant may have been well qualified for the position at issue,
but that "his resume does not substantiate it." (R.O.I., 102).
The AJ also found that as to Solicitation No. M/OP-02-415, complainant
failed to establish a prima facie case on any alleged basis because he did
not resubmit his application under the new solicitation number. The AJ
further found that complainant failed to show that the RCO was aware
of his membership in any protected class, or of his prior EEO activity,
when she misinformed complainant about the status of the solicitation for
the position at issue. (R.O.I., 84). The AJ also noted that although
complainant was misled about the re-advertising, the solicitation was
open to the public and was advertised on the agency's website. The AJ
concluded that complainant failed to establish, by a preponderance of
the evidence, that the agency's articulated reasons for its actions were
pretextual, or were motivated by discriminatory or retaliatory animus.
On appeal, complainant contends that the AJ erred in denying his request
for an extension of time to file his reply to the AJ's Notice of Intent
to Issue a Decision Without a Hearing. Complainant does not, however,
make any contentions with respect to the merits of the AJ's decision
without a hearing.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. We concur with the AJ's finding that complainant failed
to show, by a preponderance of the evidence, that his qualifications
for the position at issue were observably superior to those of the
selectees. Further, construing the evidence to be most favorable to
complainant, we concur with the AJ's finding that complainant failed
to present evidence that any of the agency's actions were motivated
by discriminatory animus toward his protected classes or his prior
EEO activity. While we agree with complainant's contention on appeal
that, given his exigent circumstances, the AJ's decision to deny his
request for an extension appears somewhat harsh, we find that there was
no clear abuse of discretion. We also find that complainant had ample
opportunity to submit his arguments in opposition to the AJ's decision
without a hearing on appeal to this Commission, and he failed to do so.
Accordingly, we discern no basis to disturb the AJ's decision and we
affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 2, 2005
__________________
Date