Ephraim U. Etokitiot, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01970554 (E.E.O.C. Mar. 15, 2000)

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.