Belinda B. Patton, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionSep 26, 2007
0120062959 (E.E.O.C. Sep. 26, 2007)

0120062959

09-26-2007

Belinda B. Patton, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Belinda B. Patton,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 01200629591

Hearing No. 220-2005-00171X

Agency No. DFAS-IN-CR-04-078

DECISION

On April 6, 2006, complainant filed an appeal from the agency's March

2, 2006 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. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). 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 Budget Analyst, GS-0560-11 at the agency's facility in Whitehall, Ohio.

On July 8, 2004, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of race (African-American) and age

(54) when:

In May 2004, complainant was not selected for either of two budget

analyst, GS-560-12, positions, under DFAS Vacancy Announcement Number

CO-0073-04.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. Over complainant's objections, the AJ assigned

to the case granted the agency's August 1, 2005 motion for a decision

without a hearing and issued a decision without a hearing. On February

7, 2006, the AJ issued her decision, finding that complainant failed to

prove that she was subjected to discrimination as alleged.

In her decision, the AJ found that complainant had established a

prima facie case of both race and age discrimination. Specifically,

complainant applied for and was found qualified for the position.

Complainant was not selected for the position, while candidates outside

of complainant's protected classes were selected. However, the AJ also

found that the agency articulated legitimate, non-discriminatory reasons

for choosing the selectees over complainant for the vacant positions.

Namely, the panel members who reviewed the applications and interviewed

the candidates assigned complainant an overall score for her application

materials and interview that was lower than the scores assigned to the

applications and interviews of the selectees. The selecting official

chose to hire two candidates who scored higher than complainant did.

The AJ declined to second-guess the three-member panel's judgment

regarding the performance of the candidates during the interview process

and scoring of the candidates' knowledge, skills and experience during

the selection process.

On appeal, complainant argues that one selectee (S1) had fewer years of

experience than she claimed during her interview and neither candidate

possessed complainant's overall experience and knowledge of the agency's

budget and her analytical skills.

On appeal, the agency points out that complainant presented the same

arguments to the AJ and that the AJ's determination was supported by

the evidence.

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.

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 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. � 1614.109(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).

To prevail in a disparate treatment claim such as this, 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 he or

she was subjected to an adverse employment action under circumstances

that would support an inference of 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, nondiscriminatory 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, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

We find no reason to disturb the AJ's decision on appeal. All three

panel members noted that complainant's performance during the interview

portion of the selection process did not serve her as well as that of the

selected candidates. We do not find that complainant's skills, knowledge

or experience are clearly superior to the selectees' qualifications

and that, as the AJ noted, the agency is free to choose between equally

qualified candidates. We note that complainant's overall score placed

her fourth among the five candidates selected for an interview (with one

candidate declining to be interviewed). Complainant failed to show that

race or age discrimination occurred in the subject selection process.

After a careful review of the record, and consideration of the

arguments on appeal, we AFFIRM the agency's final decision, finding

no discrimination.

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

September 26, 2007

__________________

Date

1 Due to a new data system, the Commission has redesignated the instant

case with the above referenced appeal number.

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0120062959

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120062959