0120113426
06-20-2012
Betzaida Bosque, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Betzaida Bosque,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113426
Hearing No. 420-2011-00004X
Agency No. ARRUCKER10FEB00688
DECISION
Complainant filed an appeal from the Agency's June 24, 2011 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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. The Commission accepts the June 28, 2011 appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant, seeking reinstatement to the Agency.
On April 14, 2010, she filed a formal EEO complaint, alleging that the Agency discriminated against her on the bases of sex (female), color (light-skinned), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On February 11, 2010, she became aware that she was not selected for the International Student Processing Clerk GS-0303-05, and the agency cancelled the certificate.
The record shows that Complainant had been previously employed with the Agency in Personnel Services, from May 2008 to April 2009 at the Agency's Fort Rucker Soldier Center, Aviation Regiment, D Company in Fort Rucker, Alabama.
On December 18, 2009, the Agency announced a vacancy for an International Student Processing Clerk, GS-0303-05 position under vacancy announcement number SCE G 09866280. The location of the position was the same, the US Army Aviation Center, 1st Aviation brigade, 1-13th Aviation Regiment, D Company at Fort Rucker.
The closing date was January 4, 2010. Complainant applied. The announced position related to her job duties while in the military on active duty, and also as a temporary civilian employee appointment. Management then decided not to select from the GS-5 referral list. After the vacancy was announced, the Colonel, Commander, requested classification approval for the upgrade of the position to a GS-0303-07 position. At the same time, management decided to realign the civilian personnel positions based on the results of a manpower survey.
On February 3, 2010, the Management Analyst at HQ notified HR via an email to cancel the Request for Personnel Action. The Agency stated that of the 29 names on the referral list, only five had Spanish speaking skills. Also, because the position would be in an office with other GS-7 employees, the Agency wanted to avoid a morale problem.
On April 19, 2010, shortly after Complainant filed her complaint challenging the cancellation of the GS-5 position, the Agency re-announced the upgraded position of International Student Processing Clerk, GS-0303-07. Complainant applied again, using the same resume and application that she used for her GS-5 application. The position required bi-lingual skills.
The Agency found her qualified for the re-announced vacancy at the GS 7 level. The Agency interviewed Complainant, but the Agency selected another female applicant, who was Hispanic and had Spanish speaking skills. The record does not show when Complainant learned of the non-selection for the GS-7 position; and the record does not show that Complainant amended her complaint to raise the GS-7 non-selection. Nor does she allege she should have been selected for the position.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ).
The Agency moved for summary judgment, and Complainant opposed the Agency's motion. In her January 28, 2011 statement of facts, Complainant argued that the record established that the Agency was intentionally refusing to give her due consideration for the GS-5 position and was offering pretextual responses to justify its actions.
The AJ referenced the fact that Complainant applied for the GS-5 position of International Student Processing Clerk, OS-0303-05, and that her name had been referred, along with 29 candidates. The AJ referenced the evidence that "management decided to not make a selection off of the GS-5 referral list and to re-post the position" as a GS-7. The AJ concluded that the available evidence did not demonstrate that the actions attributed to the Agency were motivated by Complainant's color, sex, or her prior EEO activity. The AJ found that Complainant had not produced any evidence that any individual was treated differently regarding the GS-0303-05 position because it was cancelled.
The AJ referenced that Complainant applied for the upgraded position of International Student Processing Clerk, GS-0303-07. The Agency found her qualified for the GS-7 position and interviewed her. The AJ reasoned that "even if the evidence established a prima facie case of discrimination based on color, sex and reprisal, it also demonstrates legitimate, non-discriminatory reasons for the Agency's conduct which serves as the basis of Complainant's allegations of discrimination. There is no evidence of pretext."
The AJ also concluded that Complainant's instant discrimination claim had been rendered moot by the fact that the Agency cancelled the first announcement for the GS-5 position to which Complainant applied and the Agency granted her an interview for the second GS-0303-07 position.1
The Agency failed to issue a final order within forty days of receipt of the AJ's decision. Accordingly, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. Section 1614.109(i). The Agency did subsequently adopt the Agency's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred when he concluded that the record did not present a genuine dispute of material fact or credibility issues and when he failed to view the evidence in the light most favorable to Complainant.
The Agency argues that the decision should be affirmed.
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. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999). (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). 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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 determined 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 resolve 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Upon review of the record, we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
With regard to the cancellation of the GS-5, we find that the record is complete. We also agree with the entry of summary judgment because the record does not present genuine disputes of material fact with regard to the one issue before us - - the cancellation of the GS-5 certificate.
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.
In this case, the Agency decided to make no selection from the GS-5 listing because the Agency wanted to reissue the announcement at the GS-7 level. Complainant did not offer any evidence that would show that her qualifications were superior to the person selected for the GS-7 position. We conclude that there was no evidence to show that the Agency's reasons were a pretext for discrimination.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 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 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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 20, 2012
__________________
Date
1 The Commission notes that Complainant did not amend her complaint to include her non-selection for the GS-7 position, nor does she argue that she was better qualified than the selectee.
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0120113426
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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