Denise Lobell, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJun 25, 2009
0120082087_rev (E.E.O.C. Jun. 25, 2009)

0120082087_rev

06-25-2009

Denise Lobell, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Denise Lobell,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120082087

Hearing No. 461200600069X

Agency No. HS-06-CBP-000508-380601

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 17, 2008 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.

Complainant alleged that the agency discriminated against her on the

bases of race (White), sex (female), age (53), and reprisal for prior

protected EEO activity when she was not selected for the position of

Agricultural Specialist, GS-401-07 pursuant to vacancy announcement

number CFCBP-20004-0337.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On August

9, 2007, the AJ issued a decision without holding a hearing finding

no discrimination. The agency's final action implemented the AJ's

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. 1t 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.

The Commission finds that the grant of summary judgment was appropriate,

as no genuine dispute of material fact exists. In this case, the AJ

determined that, assuming arguendo, that complainant had established

a prima facie case of discrimination; the agency articulated a

legitimate non-discriminatory reason for the alleged non-selection.

The record indicates that complainant applied for the agricultural

specialist position in response to a vacancy announcement posted on

the USAJOBS website operated by the Office of Personnel Management.

The announcement was nation-wide which allowed applicants to specify

the particular geographic duty locations for which they were applying.

Complainant applied for two duty stations; Baton Rouge, LA and Gulfport,

MS. The record further establishes that on or about August 20, 2004,

complainant received a conditional offer of employment from the agency.

However, the conditional offer did not specify any particular geographic

duty location; it merely indicated that should complainant successfully

complete all pre-employment requirements, including a background

investigation, she would be eligible for selection as positions became

available.

The record further indicates that the purpose of a background

investigation in this instance was to assess whether an applicant

was suitable for federal employment and sufficiently trustworthy to

have access to sensitive information. A background investigation of

complainant was initiated November 8, 2004. According to the agency,

on December 6, 2004, before the background investigation was completed,

complainant advised the contract investigator assigned to complainant's

background investigation that she was leaving her current position

with the agency to take another job with the Department of Veterans

Affairs in Baton Rouge, LA. The investigator informed the agency that

complainant was no longer interested in the agricultural specialist

position. Consequently, the agency discontinued complainant's background

investigation. Complainant alleges in this matter that her background

investigation was discontinued for discriminatory purposes in reprisal for

her previous EEO activity. As a result, complainant was not considered

for the position at issue. Finally, the record discloses that three

applicants who applied for the position were ultimately selected for

positions in duty locations for which complainant had applied.

The AJ in this matter determined that the agency established a

legitimate, non-discriminatory reason for not selecting complainant for

the agricultural specialist position. The Commission agrees with the

agency's determination, finding that that the record fails to establish

that complainant's non-selection was based on her sex, race, age or in

reprisal for her prior EEO activity. Specifically, evidence of record

establishes that complainant was initially interviewed for the position

and before her background investigation was complete, she advised the

agency that she was leaving her current employment with the agency

and moving out of state to take a new position with another agency. The

Commission further finds that complainant failed to present evidence that

more likely than not, the agency's articulated reasons for its action was

a pretext for discrimination. Complainant has failed to provide evidence

of pretext, that she had superior qualifications than the selectees, or

that the agency's action was based on any discriminatory animus toward

complainant's protected classes.

Therefore, 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, because the Administrative Judge'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 (M1208)

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 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 (S0408)

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 (Z1008)

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

June 25, 2009

__________________

Date

2

0120082097

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120082087