01a54419
09-19-2005
Colin D. Sells, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Colin D. Sells v. Department of Commerce
01A54419
September 19, 2005
.
Colin D. Sells,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A54419
Agency No. 03-54-00206
Hearing No. 380-2005-00034X
DECISION
Complainant appeals to the Commission from the agency's May 23, 2005
decision finding no discrimination. Complainant alleges discrimination
on the basis of age (date of birth: April 1, 1954) when, on August 5,
2003, he was not selected for the position of Supervisory Meteorologist
(Meteorologist-In-Charge or �MIC�), GS-1340-13, Vacancy Announcement
Number WNWSA030403.M13PM, for the agency's National Weather Service (NWS)
for which he applied on July 4, 2003. Without holding a hearing, an
EEOC Administrative Judge (AJ) issued a decision on May 9, 2005, finding
that complainant had not been discriminated against. Specifically,
the AJ found that the agency presented a legitimate, nondiscriminatory
reason for its action, which complainant failed to rebut. The agency,
on May 23, 2005, issued a decision fully implementing the AJ's decision.
Complainant now appeals from that decision.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
We find that the agency articulated a legitimate, nondiscriminatory
reason for the nonselection. Specifically, the agency stated that it
selected the best qualified candidate for the position. The agency
reported that the selectee had demonstrated experience in interagency
communication on both an operation and programmatic level. In addition,
the agency indicated that the review panel did not believe complainant
was well suited for a leadership position because he lacked effective
interpersonal skills. Furthermore, in their sworn affidavits, each of
the four members of the agency's Review Panel stated that the selectee's
ability to work successfully with many agencies was a main determining
factor in the selection decision. Moreover, the agency review panel
members stated that the selectee's references spoke very highly of her
and that she possessed a great deal of professional maturity and poise.
Finally, the agency review panel members felt that complainant was
not well-suited for a leadership position based on his interpersonal
skills, which they found to be lacking. Particularly, one panel member
stated that, from his personal interactions with complainant, he found
complainant to be �inflexible, difficult to approach, egotistical and
arrogant.� The same panel member further commented that complainant
lacked diplomacy and tact when dealing with people and asserted �this is
not an effective way to supervise, nor is it the proper representation
for the Alaska Region.� Although complainant's technical skills were
strong, the agency's review panel members believed that a different set
of skills was important for a managerial position.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant has failed to show that his qualifications for the
position of Supervisory Meteorologist were plainly superior to the
selectee's qualifications or that the agency's action was motivated
by discrimination. Moreover, complainant has failed to show, by a
preponderance of the evidence, that he was discriminated against on the
basis of age.
The agency's decision finding no discrimination is AFFIRMED.
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 19, 2005
__________________
Date