0120120913
04-23-2012
Ednora Armour-Ohanmu, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Ednora Armour-Ohanmu,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120120913
Hearing No. 570-2010-00933X
Agency No. BTA-10-001
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 9, 2011 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 Senior Budget Analyst, YA-0560-03, at the Agency's Business Transformation Agency (BTA), Office of the Comptroller, in Fort Belvoir, Virginia.
On December 18, 2010, Complainant filed a formal EEO complaint alleging that she was the victim of unlawful employment discrimination on the bases of age (62), and in reprisal for prior EEO activity1 when, on November 4, 2009, her supervisor informed her that she was not selected for either of two lead analyst/supervisory positions at the BTA Comptroller Office.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 28, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
In her decision, the AJ determined that the evidence gathered during the investigation established the following facts. In August 2009, Complainant's supervisor (S1) became the BTA Comptroller, as well as Complainant's immediate supervisor. Within months of his arrival, S1 developed a restructuring proposal to address organizational problems within the Comptroller's Office. The proposal provided for two team lead/supervisory positions: one for budget execution and the other for budget formulation. On October 1, 2009, S1 sent an email to the four highest graded employees in his office, including Complainant, asking if they wished to be considered for the subject lead/supervisory positions. Complainant and two named employees (E1 and E2) provided affirmative responses.
S1 obtained copies of the resumes of the three candidates, and on October 7 and 8, 2009, he conducted interviews. During the interviews, S1 asked the same eight questions of each of the three candidates. Following the interviews, S1 selected E1 (female, age 46) and E2 (female, age unidentified) for the subject positions.
S1 stated that he judged the selectees to be the best qualified candidates. S1 said that E1 and E2 received an overall score of 34 and 35 respectively, while Complainant received an overall score of 28. S1 stated that E1 had extensive experience working in budget formulation for BTA since 2008 and "that she already possessed experience working with the BTA Agency Director and had developed a positive working relationship with agency sub-directors, dating back to a year prior to my arrival in 2009. In addition, I was impressed from her interview that she had developed a detailed review process that improved her organization's budget execution rates by 30 percent and that she had, as a supervisor, mentored and developed a poor performing employee who later became the best employee in the section." S1 stated that like E2, E1 displayed "clear and confident communication skills during the interview; did a good job in applying past employment experiences to the questions asked; and expressed a clear intent and interest in long-term employment with BTA."
S1 stated that while reviewing E2's resume, he noted that her experience contained technical/subject matter experience and "included previous lead/supervisory experience with the Department of Interior dating back to 2006; that she had directly participated in her organization's Budget Review Committee; and that she had examples of communicating and presenting budget reviews with senior leaders within the Department of Interior." S1 stated that he was impressed that during her interview E2 identified that her "best example/achievement as a supervisory was her ability to motivate and train a dysfunctional organization, transforming them into a cohesive team. [E2] displayed clear and confident communication skills during the interview. She articulated past experiences and did a good job applying those experiences to the questions asked."
S1 stated that in her resume, Complainant identified the substantive knowledge and technical ability gained during her career "but it reflected little experience as a team lead or supervisor." S1 further stated that during her interview, Complainant "had difficulty relaying past employment experiences to the questions asked. I did not rate Complainant's response as high as those of [E1] or [E2] when [she told] me that her best example/achievement as a supervisor was her willingness to share an award with co-workers. I also concluded that complainant did less favorably than the other two candidates with regard to communications skills necessary to represent the Agency at meetings with internal and external contacts."
Complainant had asserted that S1 disfavored her because of an incident where E1 claimed that Complainant poked her and hit her with folders and S1 called E1 and Complainant into his office and treated Complainant as if she was guilty without evidence. S1 denied this assertion. Specifically, S1 stated that he had "interviewed their co-workers who told me they had heard about complainant poking [E1] in the past, but that they did not witness any poking for this particular occasion. I chose therefore to give a verbal warning to both employees that such behavior would not be tolerated."
Based on this evidence, the AJ concluded that S1 had articulated legitimate, nondiscriminatory reasons for the selections he made. The AJ further determined that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination. In finding Complainant failed to prove pretext, the AJ noted that S1 expressed that stability and continuity were also important considerations in making the selections because he had concerns about the high turnovers rate of trained employees in the Comptroller's office. He indicated that he also took into account that during the interview Complainant expressed interest in leaving the area to be closer to her grandchildren. The AJ determined that, in taking this remark into consideration, S1 was not motivated by age discrimination, but by his desire to select someone who would remain in the position for a while.
Following the Agency's final order adopting the AJ's decision, Complainant filed the instant appeal.
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.
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. On appeal, Complainant argues that S1 knew about several prior EEO complaints she had filed against other management officials and asserts that he did not select her because of those complaints. However, even accepting that S1 knew about these prior complaints, Complainant produced insufficient evidence to prove that the selections were more likely motivated by retaliatory animus than the legitimate considerations expressed by S1.
Accordingly, 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 unlawful 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
April 23, 2012
__________________
Date
1 In some documents in the record there is reference to Complainant also raising an allegation of sex discrimination. However, on appeal, Complainant expressly states she had no intention of raising an allegation of sex discrimination.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120913
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120913