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