Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120130072 (E.E.O.C. Apr. 23, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.

Appeal No. 0120130072

Hearing No. 480-2008-00513X

Agency No. NRCS-2008-00178

DECISION
Complainant filed an appeal from the Agency’s August 2, 2012 Final Order concerning her
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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
Final Order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Personal Property
Specialist at the Agency’s Natural Resource Conservation Service facility in Washington,
District of Columbia. On January 18, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of age (58) and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967 when:

1. On October 30, 2007, the Agency notified Complainant that she had been
determined ineligible for a GS-l102-11/12 Contract Specialist position, under
Vacancy Announcement No. NRCS-07-HI-029A.

2. On February 27, 2008, the Agency notified Complainant that she had been
determined ineligible for a GS-1l02-1l Contract Specialist position announced
under Vacancy Announcement No. NRCS-PIA-08-03A.
0120130072

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s October 24, 2008 motion for a decision
without a hearing. The AJ issued a decision without a hearing on July 2, 2012.

In her Decision, the AJ found the material facts were not in dispute. Specifically, the AJ
found no dispute that Complainant applied for both of the identified positions through the
vacancy announcements posted by the Agency. The AJ found no dispute that Complainant
applied for both positions and further that both announcements required applicants to submit
proof they met the basic education requirements for the positions. Specifically, the AJ noted
that an applicant must have a four-year course of study leading to a bachelor’s degree, or at
least 24 semester hours of study in various specified fields, as well as additional educational
requirements to qualify for the position at the GS-11 level. The AJ found no dispute that
Complainant did not attach proof of her education or transcripts to her applications.

For the position identified in claim (1), the AJ found the undisputed evidence showed that
Complainant received a letter from the Agency dated October 17, 2007, notifying her that she
did not qualify for the position because she failed to submit transcripts to demonstrate how she
met the position’s education requirements and because she did not meet the requirement that
she possess four years of procurement experience with 90% contract duties.

For the position identified in claim (2), the AJ found that Complainant received a letter from
the Agency, dated February 14, 2008, notifying her that she had been found ineligible for this
position because she failed to meet the position’s basic education requirements. The AJ
considered the statement of H1, the Agency’s Human Resource Specialist, who stated that
Complainant would be ineligible for all GS-1102 positions because she does not possess the
required education.

The AJ determined that Complainant did not set forth a prima facie case of discrimination on
any basis because she did not show that she was qualified for either position. Specifically, the
AJ found that the undisputed evidence shows that Complainant does not possess a four-year
degree and does not meet the basic education requirement through a combination of academic
education and experience. The AJ found that even if she had established a prima facie case,
that the Agency articulated legitimate, nondiscriminatory reasons for finding Complainant
ineligible in that Complainant did not meet the minimum education requirements for the
positions identified in her complaint. Additionally, the AJ noted that all of the individuals
whose names appeared on the Agency’s certificate of eligible candidates had met the minimum
education requirements and provided proof of their education with their applications. The AJ
also noted that at least three of the eligible candidates were also within five years of
Complainant’s age and that Complainant presented no evidence that her age played any role in
the selection process.
0120130072

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The AJ concluded that Complainant failed to show that she was subjected to age or reprisal
discrimination as alleged. The Agency subsequently issued a Final Order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

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 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).
To prevail in a disparate treatment claim such as this, 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
0120130072

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inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the AJ properly issued her Decision without a hearing.
Specifically, we find the undisputed evidence shows that Complainant’s application was
unaccompanied by any proof of education she had in the form of school transcripts,
certificates, or any other documentation to support her claim that she satisfied the basic
minimum education requirements set forth in the Agency’s vacancy announcements. We
concur with the AJ that Complainant failed to establish her nonselections were motivated by
discrimination.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Order finding no discrimination.

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
0120130072

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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

Date
April 23, 2014