0120071868
03-30-2009
Donna S. Kielman, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Donna S. Kielman,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120071868
Agency No. 05-63-00164
Hearing No. 470-2006-00060X
DECISION
Complainant filed an appeal with this Commission from the February 8,
2007 agency decision which implemented the January 30, 2007 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Specifically, complainant alleged that the agency discriminated against
her on the bases of sex (female), disability (post traumatic stress
disorder), and age (39) when: (1) on March 31, 2005, the agency laid
complainant off from her job; and (2) the agency failed to rehire her
for a permanent position on April 1, 2005, and June 19, 2005.
After the investigation of her complaint, complainant requested a hearing.
Over the objection of complainant, the AJ issued a decision without a
hearing (summary judgment).
The record reveals that complainant worked for the agency as a Survey
Statistician in Jeffersonville, Indiana in a term appointment which
ended on March 31, 2005. Complainant was not selected for two positions
filled for the Survey Statistician position. In his decision finding
no discrimination, the AJ noted that complainant failed to establish
a prima facie case of age because she was not 40 years old at the time
when her term position expired or at the time the selections were made.
The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reasons for its action in ending complainant's temporary
employment as a term employee. The AJ found that complainant was in a
term appointment which expired on March 31, 2005. The AJ found that the
agency had made a decision to eliminate all term appointments at its
Jefferson National Processing Center by September 30, 2005, and that
it did not set any term appointment expiration dates beyond that date.
The AJ found that complainant failed to produce any evidence that
the agency was not eliminating term positions or that her term was
not ending.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993). The prima facie inquiry
may be dispensed with where the agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. �1614.110(b), the agency's decision is subject to
de novo review by the Commission. 29 C.F.R. �1614.405(a).
Regarding complainant's nonselection to the permanent position under
Vacancy Announcement No. WA118404, the AJ found that complainant was not
named on the two certificates of eligibles which were received from the
Office of Personnel Management and from which the Selecting Official
made the two selections. The AJ noted that while complainant had a
good record with the agency and was well-qualified for the position,
she had produced no evidence that the agency did not select her from the
certificate of eligibles or that the agency took any action to prevent
complainant's name from appearing on the certificate of eligibles.
Upon review, the Commission finds that the AJ's grant of summary judgment
was proper. We find that there exists no genuine issue of material
fact, that the investigative record was adequately developed, and that
there were no findings of fact made by weighing conflicting evidence
or assessing witness credibility. The agency articulated legitimate,
nondiscriminatory reasons for its actions in terminating complainant's
term appointment and not selecting complainant for the two positions.
Complainant has not shown that the agency's reasons were mere pretext
to mask unlawful discrimination. While the evidence indicates that
complainant was qualified for the position, having worked as a Survey
Statistician and having received several awards, there is no evidence
that the agency had any involvement in OPM's actions in qualifying and
rating the applicants for the position. Further, it appears that the
selectees were hired at grade level GS-7 and complainant was a GS-12.
Complainant also stated that she had asked the Selecting Official to be
notified if a position was advertised and the Selecting Official agreed
to do so. The record discloses that the position was announced online
on the Internet and was publicly available. There was no duty on the
part of the Selecting Official to inform complainant when the position
became available. By his own admission, the Selecting Official alerted
one of the persons selected about the upcoming vacancy announcement;
however, as noted earlier, it was OPM who qualified all the applicants
and placed them on the certificates of eligibles. Moreover, that
the Selecting Official told the selected applicant to apply does not
establish, without more, that he did so for discriminatory reasons.
Construing the evidence in the light most favorable to complainant, the
preponderance of the evidence does not demonstrate that the agency was
motivated by discriminatory animus. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
We do not decide in this decision whether complainant is an individual
with a disability.
The agency's decision finding no discrimination is AFFIRMED.
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
March 30, 2009
__________________
Date
5
0120071868
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013