0120070488
01-15-2010
Elisha M. Smith, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Elisha M. Smith,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120070488
Hearing No. 170-2005-00532X
Agency No. EEO-05-016
DECISION
JURISDICTION
On October 30, 2006, complainant filed an appeal from the agency's October
3, 2006 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a).
ISSUE PRESENTED
The issue presented by this appeal is whether the instant EEO complaint
was appropriately adjudicated by summary judgment in favor of the agency.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Single Family Housing Specialist, GS-12, at the agency's Homeownership
Center, Real Estate Owned Branch, in Philadelphia, Pennsylvania.
Complainant applied for the three available positions of Senior Single
Family Housing Specialist, GS-13, advertised under Vacancy Announcement
No. 08-MSD-2004-0028Z; however, three Caucasian selectees were chosen
for the positions.
Complainant filed a formal EEO complaint on November 12, 2004, alleging
that she was discriminated against on the basis of race (Black) when
the agency did not select her for the position of Senior Single Family
Housing Specialist, GS-13.
At the conclusion of the investigation, complainant was provided
a copy of the investigative file and requested a hearing before an
EEOC Administrative Judge (AJ). The agency filed a motion for summary
judgment, and, over complainant's objection, the AJ issued a decision
without a hearing, finding no discrimination.
The AJ found that complainant established a prima facie case of race
discrimination. The AJ then determined that the agency proffered
legitimate, nondiscriminatory reasons for not selecting complainant in
that: (1) the selectees were superior candidates, (2) the selectees
performed better than complainant during the interview process,
(3) complainant had some issues relating to workload management,
(4) complainant had previously failed to demonstrate good judgment,
and (5) the quality of complainant's writing sample. The AJ concluded
that complainant failed to refute the agency's reasons or show that the
reasons were a pretext for discrimination. The agency's final action
implemented the AJ's decision.
CONTENTION ON APPEAL
Complainant contends that the AJ erred in issuing a decision without
a hearing because there were genuine issues of material fact regarding
pretext.
STANDARD OF REVIEW
On appeal, the Commission reviews de novo the AJ's legal and factual
conclusions, and the agency's final order adopting them. See 29
C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an
agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will
be reviewed de novo"). This means that the Commission is free to accept
(if accurate) or reject (if erroneous) the factual conclusions and legal
analysis of the AJ and agency. See id. at Chapter 9, � VI.A. (explaining
that the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Issuance of a Decision without a Hearing
We must first determine whether the AJ appropriately issued a decision
without a hearing on this record. 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). The courts have been clear that summary judgment is not to be
used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred in
concluding that there was no genuine issue of material fact regarding
pretext in this case.
With regard to the qualifications of the selectees compared to
complainant, the record shows that the candidates were initially rated
by a human resources representative on the basis of four quality ranking
factors:
1. Knowledge of and skill in applying single family housing program
policies, regulations and procedures to include the following: Contractor
monitoring/review, appraisal, title work, reconveyance, preservation and
property acquisition, and foreclosure, escrow serving, loan serving and
loss mitigation.
2. Ability to communicate/negotiate effectively verbally with clients,
contractors, management and Headquarters.
3. Knowledge of the management and marketing of Single Family properties.
4. Ability to effectively manage program by establishing objectives
and performance goals, monitoring progress toward their achievement,
and setting new priorities based on changing requirements.
Complainant was rated "outstanding" on all of the quality ranking factors,
except for her ability to communicate and negotiate, for which she was
rated "above average." One of the selectees received lower ratings
of "above average" for all four of the quality ranking factors, while
another selectee received only an "average" rating for her ability to
effectively manage the program.
In addition, the performance appraisals submitted by complainant in her
application rated her either as "highly successful" or "outstanding"
in all categories. In contrast, one of the selectees submitted only
one performance appraisal, in which she received lower ratings of "fully
successful" for all categories.
The record also shows that the recommending official evaluated one
selectee's writing sample as only "satisfactory," while acknowledging
in an affidavit that complainant's writing sample was "acceptable,"
that complainant was one of the better writers in the branch, and
that complainant had been rated "highly successful" or "outstanding"
in her writing.
Moreover, in response to follow-up questions by the EEO investigator,
the recommending official acknowledged that the scenario presented in
the writing assignment was based on an actual, ongoing case that had
been worked on by two of the selectees. The recommending official's
statement constitutes evidence that supports the proposition that
the recommending official, as the designer of the writing assignment,
placed two of the selectees in a better position than complainant to
understand and articulate the issues presented. While pre-selection per
se is not a violation of Title VII, see, e.g., Goostree v. Tennessee, 796
F.2d 854, 861 (6th Cir. 1986), the Commission finds that this evidence
supports complainant's contention that there remain genuine issues of
material fact, and also raises an issue regarding the credibility of
the recommending official.
In light of the foregoing, the Commission finds that there are genuine
issues of material fact in this case. The central factual question
is whether complainant is better qualified than any of the selectees.
As set forth above, there is substantial competent evidence in the form
of affidavits and business records that would support the proposition
that complainant is patently better-qualified than the selectees.
That evidence, if taken as true, would justify a finder of fact in finding
for complainant. There is a direct conflict between that evidence and
the agency's evidence. A hearing is necessary to resolve that conflict.
CONCLUSION
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission vacates the agency's final
action and remands the matter to the agency in accordance with this
decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
January 15, 2010
Date
7
0120070488
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013