Angella F.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 20160120143171 (E.E.O.C. Apr. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angella F.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 0120143171 Hearing No. 570-2012-001068X Agency No. DLAF-12-0040 DECISION On September 9, 2014, Complainant filed an appeal from the Agency’s August 8, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-11, at the Agency’s facility in Richmond, Virginia. On February 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (African-American) and age (51) when on October 24, 2011, management did not select her for the position of Energy Contract Specialist, GS-12, under vacancy announcement number DLA Energy-11-514967-MP-12. 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. 0120143171 2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ found 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 issued a decision without a hearing on June 30, 2014, finding no 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. On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing and reiterates her contention that she was subjected to unlawful discrimination as she was the best qualified candidate for the position at issue. ANALYSIS AND FINDINGS As an initial matter we note that, as this is an appeal from a final decision 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 102, 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. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of 0120143171 3 discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non- discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima facie case of race and age discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows that in August 2011, the Agency issued a vacancy announcement for the position of Energy Contract Specialist. The announcement stated that the primary job duties of the position included performing both pre- award and post-award contract functions required for the acquisition of supplies and services for the Ground Fuels and Specialty Fuels Divisions of the Direct Delivery Fuels Business Unit. Complainant was one of eleven applicants whose resumes were forwarded to the selecting official (SO). The SO requested that two management officials review the resumes and rank the applicants, however only one of the management officials was able to complete the task. This reviewing official (RO) ranked Complainant first among the applicants, but did not explain how she arrived at that ranking and indicated that Complainant did not possess the same “cradle to grave” or pre-award contracting experience as some of the other applicants. The SO stated that she did not agree with the RO’s ranking of the applicants and, therefore, disregarded the RO’s recommendation.2 In her affidavit testimony, the SO states that in making her selection, she was looking for a candidate who had both pre and post-award contracting experience and experience with buying fuel. The record shows that the selectee’s resume demonstrated both pre-award and post-award experience, specific experience with fuel acquisitions, and that she was already working as a GS-12 in the unit where the position at issue was located. The SO stated that, therefore, she was familiar with the selectee’s abilities and that the selectee had demonstrated all the necessary skills to successfully perform in the position. In contrast, a review of the record shows that Complainant’s resume did not indicate that she had any experience with the acquisition of fuel or with procurements on the international level. Further, even in RO’s ranking of the candidates, she indicated that Complainant’s work was mostly post-award and that she lacked the “cradle to grave” experience of the selectee. Accordingly, we find that Complainant has not shown that her qualifications for the position at issue were observably superior to those of the selectee. We further find that Complainant failed to show that the Agency’s articulated reasons for its actions were a pretext for unlawful race or age discrimination. 2 The record shows that the RO is no longer an employee with the Agency and, therefore, the report of investigation does not contain an affidavit from her. 0120143171 4 CONCLUSION We find that viewing the record evidence in a light most favorable to Complainant, there are no genuine issues of material fact. We further find that the AJ appropriately issued a decision without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision and the Agency’s final order is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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. 0120143171 5 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 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 April 8, 2016 Date Copy with citationCopy as parenthetical citation