01970554
03-15-2000
Ephraim U. Etokitiot, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Ephraim U. Etokitiot v. Department of Commerce
01970554
March 15, 2000
Ephraim U. Etokitiot, )
Complainant, )
) Appeal No. 01970554
v. ) Agency No. 94-54-0368
) Hearing No. 100-95-7498X
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (hearing
impaired), in violation of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791, et seq.<1> Complainant alleges that he was discriminated
against when: (1) he was not selected for a position for which he
had applied.<2> The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission affirms the
agency's final decision.
BACKGROUND
The record reveals that complainant, an applicant for a Budget Analyst
position at the agency's National Oceanic and Atmospheric Administration
(NOAA), National Environmental Satellite, Data, and Information Service
(NESDIS) in Suitland, Maryland, filed a formal EEO complaint with the
agency on August 9, 1994, alleging that the agency had discriminated
against him as referenced above.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a Recommended
Decision without a hearing, finding no discrimination.
The AJ found that complainant established a prima facie case of
disability-based discrimination, having adduced sufficient evidence
to show that 1) he had a disability; 2) he applied for the position
in question and was certified as qualified for the position; 3) he
was not selected for the position; and 4) the selectee did not have a
disability. The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the selectee
was chosen over complainant because the selectee, unlike complaint,
was a then-current employee of the agency who was familiar with the
operations of both NOAA and NESDIS. Finally, the AJ concluded that
complainant had not proven that the agency's articulated reasons were
a pretext to mask unlawful discrimination/retaliation.
The agency's final decision implemented the AJ's recommended decision.
From the final agency decision, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant evidence and referenced
the appropriate regulations, policies, and laws. We agree with the
AJ's conclusion the complainant failed to adduce sufficient evidence
to raise a genuine issue of material fact and that resolution of this
matter without a hearing was appropriate.
Summary judgment may be had when the judge determines that there is no
genuine issue as to any material fact, as governed by the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In a discrimination case, the governing law includes the methods
of presumption and shifting burdens of production that the Supreme Court
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
and Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Accordingly, a summary judgment decision is appropriate when
the undisputed facts show that: 1) the complainant fails to establish a
prima facie case of discrimination, or 2) the employing agency fails to
articulate a legitimate, nondiscriminatory reason for its actions, or 3)
the complainant fails to establish that the agency's stated reason was a
pretext for discrimination. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Here the agency's principal stated reason for choosing the selectee over
complainant was the selectee's greater familiarity with the agency's
operations. It is undisputed that the selectee had many years experience
with the agency while complainant had no federal employment experience
of any kind. Complainant offers nothing other than his own speculation
to support his assertion that the agency's explanation for its selection
was a pretext designed to conceal intentional discrimination.
Although complainant's educational background was superior to that of
the selectee, it is not for us to say that the agency should have given
greater weight to the applicants' educational attainment than it did to
their practical experience. We will not substitute our business judgment
for that of the agency. See, Patterson v. Department of the Treasury,
EEOC Request No. 05950156 (May 9, 1996). Complainant's qualifications
were not so plainly superior to the selectee's as to permit a finder
of fact reasonably to infer a discriminatory motive on the part of the
agency. See, Harris v. Department of the Army, EEOC Request No. 05940999
(March 14, 1996). Without evidence of such a discriminatory motive,
complainant could not have prevailed at a hearing. Accordingly summary
judgment for the agency was appropriate.
We discern no other basis on which to disturb the AJ's recommended
decision.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
3-15-00
Date Hilda Rodriguez, Director,
Appellate Review Program,
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
3-15-00
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2On appeal, complainant has asserted, for the first time, that the
agency's failure to hire him also constituted discriminated on the basis
of race (Black), national origin (Nigerian), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
3 We need not separately address the claims of race and national origin
discrimination complaintant has sought to raise on appeal. The rationale
for our decision herein that complainant could not have proven his claim
of disability-based discrimination is equally applicable to those claims.