0120120030
02-11-2013
Charles Bray, Jr., Complainant, v. Leon E. Panetta, Secretary, Department of Defense, Agency.
Charles Bray, Jr.,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120120030
Hearing No. 451-2011-00115X
Agency No. AAFES10-097
DECISION
On September 27, 2011, Complainant filed an appeal from the Agency's September 20, 2011, final order concerning his 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to demonstrate that he was subjected to discrimination as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination based on reprisal when he was not selected for the position of Facility Manager.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Conveyor Mechanic at the Agency's Waco facility in Texas. He applied for the position of Facility Manager. The qualifications listed for the position were: (1) five years management/supervisory experience in commercial construction, renovation, facilities management or equipment maintenance management; or (2) Bachelor's degree and three years experience in commercial construction, renovation, facilities management, or equipment maintenance management. degree preference in one of the following: Business, Construction Management, and Engineering Management. Also, the position required a Certificate/License: AF Electrician, Air Conditioning and Heating Certification ATI. A Human Resources professional ranked all of the nine in-house applications that were received. Only one applicant out of the nine was found to be qualified for the position. Complainant was not found to be qualified. The documents noted that Complainant was rated not qualified for the position because he had no Bachelor's degree and had less than the five years of management experience needed for the position. Complainant's application reflected that he had been employed by the activity since 1990 and had held the position of Maintenance Mechanic and Foreman. Complainant had an Associates' degree in Electro-Mechanical Engineering and graduated in 1980. Complainant's application reflected that he had more than six years experience in construction and facilities support.
It was shown that the selectee had no education or professional certifications on file. The selectee however had been employed by the activity since 1989. The record shows that from November 1994 - April 2008, he was an Industrial Equipment Mechanic Foreman, from April - November 2008, he was a Facility Manager II (LG) and in November 2008 - October- 2009, he was A/Region Facility Manager. In October 2009, the selectee was deployed and returned to the workplace in April 2010. It was determined that the selectee met the five years management/supervisory experience in the areas of commercial construction, renovation, facility and/or equipment maintenance requirement listed in the job description. Believing that he had not been selected for the position as a result of prior EEO activity that he had filed five years earlier, Complainant filed the instant complaint.
On August 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII when effective July 24, 2010, he was not selected for the Facility Manager 11 Logistics (LG) position at the Waco Distribution Center.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on August 29, 2011. The AJ found that Complainant failed to establish a prima facie case of reprisal because neither the Human Resources professional nor the selecting official were aware of Complainant's prior EEO activity. The AJ also found that the Agency articulated a legitimate, nondiscriminatory reason for its action, namely, that Complainant was not selected for the position because he did not meet the minimum qualifications for the position. Accordingly, the AJ found that Complainant failed to show that he was discriminated against. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that based on the qualifications required the person selected for the position was not qualified. In fact, he maintains that the person that had previously held the position was also not qualified to perform the position. Complainant contends that the selectee was pre-selected for the job.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 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. Dep't of Def., 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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that a decision without a hearing was appropriate because there are no material facts at issue. We find that even assuming arguendo that Complainant established a prima facie case of discrimination based on prior EEO activity, the Agency articulated a legitimate, nondiscriminatory reason for its action, namely, Complainant was not considered for the job because he did not meet the minimal qualifications. Moreover, the evidence does not show that Complainant demonstrated that he was qualified for the job. Further, the record shows that no one involved with the selection was aware of Complainant's prior EEO activity.
We find that other than Complainant's conclusory statements he has provided no evidence that discriminatory animus was involved. In fact, in his contentions on appeal, he maintains that Complainant was pre-selected for the position. While we agree with the AJ that favoritism toward the selectee may have played a role in its choice and that the selectee could arguably have been preselected for the position, we note that evidence of preselection does not necessarily prove unlawful discrimination. See Goostree v. State of Tennessee, 796 F.2d 861 (6th Cir. 1986). In other words, as long as a discriminatory motive does not exist, preselection, by itself, is not a violation of Title VII.
Further, we note that even if we assume that Complainant was qualified for the position, we do not find that his qualifications were so superior to those of the selectee's that a finding of discrimination, (because of his qualifications in comparison to the selectee's), must follow. See Bauer v. Bailor, 647 F.2d 1037 (10th Cir. 1981) (pretext may be found in nonselection cases when a Complainant's qualifications were plainly superior to the selectee's). Accordingly, we find that Complainant failed to demonstrate that he was subjected to discrimination as he alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order which found that Complainant failed to show that he was discriminated to against.
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 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 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
__2/11/13________________
Date
2
0120120030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120030