Bruce E. Smith, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01A33208 (E.E.O.C. Mar. 29, 2000)

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