01A33208
03-29-2000
Bruce E. Smith, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Bruce E. Smith v. Department of the Navy
01A33208
March 29, 20004
.
Bruce E. Smith,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A33208
Agency No. DON 02-00187-047
Hearing No. 120-2003-00002X
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. 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, a Facilities Maintenance Specialist,
GS-09, assigned to the Engineering Department, Navy Public Works Center,
located in Norfolk, Virginia, filed a formal EEO complaint on February
13, 2002, alleging that the agency had discriminated against him on the
bases of race (Black) and color (black) when:
(1) he was not selected for a temporary promotion to the position of
Facilities Maintenance Specialist, GS-11, and three Caucasian co-workers
were promoted; and
on May 14, 2002, two Caucasian employees were reassigned to a Facilities
Maintenance Specialist, GS-11, position, a position for which he had
previously applied and was not selected.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
In her decision the AJ adopted the agency's facts and conclusions stated
in its �Motion for Findings and Conclusions without a Hearing.� In its
Motion, the agency concluded that management articulated a legitimate
non-discriminatory reasons for its actions. Specifically, the agency
found that all three candidates selected to the temporary promotions at
issue had the requisite roofing or paving experience required for doing
the job for which they received their individual temporary promotion.
Moreover, the agency found that the three selectees possessed individual
experience and expertise on road projects, experience and expertise that
complainant did not possess.
Regarding claim (2), in its motion the agency noted that the reassignment
simply involved moving two men from a GS-11 position in one Engineering
division of the Command to a GS-11 position in another Engineering
division within the Command. The agency found that complainant was not a
GS-11, so therefore he was not even be eligible for such a reassignment.
The agency further found that management reassigned the two employees
because each man possessed expertise in drainage, parking, paving and
civil engineer responsibilities and their skills were better suited for
the new division because their backgrounds were in Civil Engineering.
On appeal, complaint contends that the AJ erred in granting summary
judgment. Complainant contends that although the agency alleged that the
selectees were selected because of their experience in pavement and roof
inspection, there was no such requirement in the position description.
Complainant asserts that he was more qualified than the selectees because
he had greater Facilities Maintenance Specialist experience and had a
college degree, whereas the others did not. Complainant further contends
that the agency violated its personnel procedures on re-assignment when
they reassigned the two GS-11 employees, which is evidence of pretext.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting them, under a de
novo standard of review. 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 for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (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 issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
To prevail in a disparate treatment claim based on race and color,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating
that he 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); see also Loeb v. Textron, 600
F.2d 1003 (1st Cir. 1979). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate and
non-discriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC
Request No. 05950351 (December 14, 1995). In nonselection cases, pretext
may be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). Ultimately, the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259;
Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January
16, 1997).
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate, as no genuine
dispute of material fact exists. Specifically, we note that assuming
arguendo that complainant established a prima facie case of race and color
discrimination, the agency established legitimate non-discriminatory
reasons for its actions. Regarding complainant's non-promotion, the
record establishes that the selectees possessed expertise in paving and
road projects, and that in the selection process they were scored higher
than complainant. The record also reveals that the two employees that
were reassigned to a Facilities Maintenance Specialist, were not promoted;
they were reassigned from a GS-11 position in one division to a GS-11
position in another division. While complainant argued that he was better
qualified, he did not rebut that the selectees' possessed the paving and
road experience or that they scored higher than he did. Complainant also
did not rebut that he was not eligible for the reassignment because
he was not a GS-11. We agree with the AJ that complainant did not
show that he was more qualified than the selectees. We conclude that
a reasonable fact-finder could not have concluded from the evidence
proffered by complainant that unlawful animus motivated the selections.
We conclude that complainant has not �set forth specific facts showing
that there is a genuine issue for trial.� Fed. R. Civ. P. 56(e).
Construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus towards complainant's
protected classes. Therefore, for the foregoing reasons, we affirm the
agency's final order adopting the AJ's decision.
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
March 29, 20004
__________________
Date