0120073547_r1
02-04-2009
Enrique R. Suarez, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Enrique R. Suarez,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120073547
Agency No. 065700037
Hearing No. 531200600231X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 31, 2007, final order concerning his 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.
Complainant alleged that the agency discriminated against him on the basis
of national origin (Hispanic (Peruvian)) when he was not selected for the
position of Educational Specialist, National Institutes of Standards and
Technology, in December 2005. Following an investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On June
20, 2007, the AJ issued a decision without a hearing, finding that the
agency did not discriminate against complainant.
The agency advertised for the position, and complainant applied through
an on-line application process. All applicants were asked some general
questions to determine basic qualifications, and the agency created a
Certificate of eligible candidates, ranking those deemed "best-qualified"
at the top of the list.1 Next, the agency asked the top candidates
to provide writing samples demonstrating their qualifications for the
position as defined in the job announcement. Candidate 1 was offered the
position but declined it; candidate 2 (complainant) was informed that his
writing samples did not demonstrate that he met the qualifications for
the position; candidates 3 and 4 submitted samples prepared, in part, by
others; and candidate 5 was offered the position and accepted it. The AJ,
assuming complainant established a prima facie case of discrimination,
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and complainant did not demonstrate pretext.
Specifically, the agency decided that complainant's written submission
did not demonstrate his qualifications for the position, i.e., that he
could organize and teach a course on the specific topics, other than
by general lecture with handouts, nor "conform to the type of training
materials or lesson plans that the agency had requested," whereas the
selectee's materials clearly did.2 AJ, p. 22.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue a decision
without 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. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.
CONCLUSION
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
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
__02/04/2009________________
Date
1 Complainant persists in contending that the agency's notification
that he was among the "best qualified" meant that he was the only best
qualified and that notification was a job offer. While the agency's
language may confuse the average reader, as was explained to him by the AJ
and the agency, complainant's understanding is incorrect; federal agencies
will create a list of the "best qualified" (BQ) candidates, i.e., those
candidates who appear to meet the general qualifications for the position.
While each agency may utilize the BQ list differently, in this case
the agency used it to select candidates for further consideration, such
use being perfectly proper and common in the government hiring process.
Thus, complainant's designation as "best qualified" meant only that he was
among the highest rated candidates, having met the basic qualifications
for employment.
2 The Supreme Court has held that in the absence of evidence of a
discriminatory motivation, an employer generally "has discretion to
choose among equally qualified candidates...." Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). We agree with
the AJ that complainant has not shown "discriminatory motivation" or that
his qualifications are significantly superior to those of the selectee.
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0120073547
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120073547