0120121434
07-18-2012
David S. Miller, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
David S. Miller,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120121434
Hearing No. 560-2010-00067X
Agency No. FMS-09-0442-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 25, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a WG-5 Production Machinery Helper-Repair position with the Financial Management Service at an Agency facility in Kansas City, Missouri.
On April 16, 2009, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (58) when:
on March 6, 2009, he was not selected at the General Schedule (GS) 7 or 9 levels for a Payment Disbursement Specialist position, but was instead selected for the position at the GS-5 level.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 11, 2011, the Agency filed a Motion for Summary Judgment. Complainant timely filed a response. On January 19, 2012, the AJ issued a decision without holding a hearing, finding no discrimination. In reaching this decision, the AJ determined that the evidence gathered during the investigation of the complaint established the following undisputed facts.
Complainant had worked for the Agency for eighteen years, and most recently occupied a WG-5 Production Machinery Helper/Repair position. On December 1, 2008, the Agency issued Vacancy Announcement No. (VA) KFC-08-039, for Payment Disbursement Specialist day positions at the GS-5, 7 and 9 pay grades, with the closing date for application on December 19, 2008. Applicants were required to submit their information on-line only.
Complainant applied for the subject position at the GS- 5/7 and 9 levels. Based on the advice of his union representative, Complainant wanted to "add words" to bolster his application. As a consequence, Complainant attempted to gain access to his application via the USAJOBS website and his access "became blocked." The USAJOBS cite informed Complainant that no assistance in unlocking Complainant's account could be provided until the following work week. On the same day, Complainant's union representative sent an email to the Agency's Human Resources (HR) Specialist asking to accept Complainant's revised resume attached to the email. That request was denied.
The Agency's human resources office reviewed and rated the twenty-one applicants who applied for the sixteen positions, and listed the qualified candidates for interview for the positions on Eligibility Certificates based on the grade level for which they qualified. Complainant was listed only on the GS-5 Eligibility Certificate, and was subsequently selected for the position at the GS-5 level. Complainant declined the position and retired from the Agency.
The record showed that, before the interviews, one applicant (African American male, age 43) (hereinafter referred to as "BD"), a GS-7 employee, who timely filed his application was notified by an HR Specialist that he did not qualify for the position. BD then requested a meeting with the Manager of the Payment Management and Operations Branch (hereinafter referred to as "Manager"). As a result of the meeting after a second review of his application, BD was found qualified for the PDS position at GS-7 and 9 levels.
The Agency's January 25, 2012 final action implemented the AJ's decision concluding no discrimination had been proven. The instant appeal followed.
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, 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.
The Commission finds that that the grant of summary judgment was appropriate, as no genuine dispute of material fact exists.
A claim of disparate treatment is examined under the three part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
After careful review of the record and consideration of the arguments on appeal, we find that Complainant has not identified genuine issues of material fact in this case which can only be resolved through a hearing. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment.
The evidence of record supports the AJ's determination that Complainant failed to prove that he was subjected to disparate treatment because of discrimination The AJ found that due Complainant's own error in applying for the position, he was unable to update his resume. The AJ acknowledged that BD was found qualified for a GS-7 position upon a second review of his application. However, the AJ found that the circumstances between BD and Complainant were not so similar as to render them comparable for the purposes of discrimination analysis. Specifically, the AJ found that prior to the interviews, BD requested consideration of his ineligibility, not his grade level, from the Manager. Moreover, the AJ found that Complainant contends that his supplemental hard copy of responses should have qualified him at a higher level. However, the evidence of record establishes that the Agency had a stated practice of only considering application materials submitted on-line, and Complainant presented no evidence that the Agency had deviated from this practice.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order implementing the AJ's decision, because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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
July 18, 2012
__________________
Date
2
0120121434
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121434