Donald A. Hamoy, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 26, 2003
01A20822_r (E.E.O.C. Mar. 26, 2003)

01A20822_r

03-26-2003

Donald A. Hamoy, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Donald A. Hamoy v. Department of the Army

01A20822

March 26, 2003

.

Donald A. Hamoy,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A20822

Agency No. AFDEFO0006A1020

Hearing No. 370-A1-X2243

DECISION

Complainant filed a formal EEO complaint in which he claimed that the

agency discriminated against him on the bases of his race (Asian Pacific

Islander) and national origin (Philippines) when management gave him

erroneous information regarding a Maintenance Mechanic Supervisory

vacancy, thus preventing him from submitting a timely application for

the position. According to complainant, he was informed by an agency

Personnel Specialist in May 1999 that the Maintenance Mechanic Supervisory

position would not be filled until the pending Commercial Activities study

concluded that the position would continue to receive federal funding.

Complainant stated that the Personnel Specialist told him that until

that time, the agency would only make an assignment to the position in

a temporary detail capacity. In May 2000, complainant inquired about

the position and was informed that although the Commercial Activities

study was still ongoing, the position had been filled on a permanent

basis several months earlier.

The agency investigated the complaint and thereafter referred the matter

to an Administrative Judge (AJ), pursuant to complainant's request

for a hearing. Without holding a hearing, the AJ issued a decision

finding no discrimination. On November 13, 2001, the agency issued

a final action implementing the AJ's decision. On November 18, 2001,

complainant filed the instant appeal.

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.

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 complainant to prevail, he 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.

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. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000).

This order of analysis in discrimination cases, in which the first step

normally consists of determining the existence of a prima facie case,

need not be followed in all cases. Where the agency has articulated a

legitimate, nondiscriminatory reason for the personnel action at issue,

the factual inquiry can proceed directly to the third step of the

McDonnell Douglas analysis, the ultimate issue of whether complainant

has shown by a preponderance of the evidence that the agency's actions

were motivated by discrimination. United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900150 (June 28, 1990). In this

case, the Commission finds that the agency has articulated a legitimate,

nondiscriminatory reason for its actions. Consequently, we will dispense

with an examination of whether complainant established a prima facie

case with respect to the above cited issues and review below, the reason

articulated by the agency for its actions as well as complainant's effort

to prove pretext.

The Commission finds that the agency articulated a legitimate,

nondiscriminatory reason for the allegedly erroneous information that

was conveyed to complainant by the Personnel Specialist. According to

the Personnel Specialist, she did not know that the Maintenance Mechanic

Supervisor position would be filled on a permanent basis at the time

that complainant expressed his interest in the position. The Personnel

Specialist stated that she encouraged complainant to monitor the status of

the position. The Personnel Specialist stated that a vacancy announcement

for a permanent filling of the position was not issued until September

1999, four months after complainant consulted with her. A decision was

made to fill the position on a permanent basis despite the fact that

the Commercial Activities study had not been completed.

Complainant claimed that agency officials conspired to provide him with

misinformation in order to prevent him from applying for the Maintenance

Mechanic Supervisor position. We find that complainant has not produced

any persuasive evidence to show that the agency's purported reason for

the information conveyed to him was pretextual or that its action was

motivated by unlawful discrimination. Complainant has not presented any

evidence that demonstrates that the Personnel Specialist knew or should

have known in May 1999 that the position would be filled on a permanent

basis prior to the completion of the Commercial Activities study.

Complainant argued that the Personnel Specialist could have advised him

during their May 1999 conversation to prepare a resume using the Resumix

centralized referral system. We find that this omission on the part of

the Personnel Specialist is not by itself sufficient to establish that

discriminatory motivation was involved.

After a review of the record in its entirety, it is the decision of

the Equal Employment Opportunity Commission to AFFIRM the agency's

final action finding no discrimination, 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 race

discrimination or national origin discrimination occurred.

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

March 26, 2003

__________________

Date