0120091291
06-11-2010
Erik P. Williams, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Erik P. Williams,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120091291
Hearing No. 550-2008-00377X
Agency No. HS-08-CIS-002077
DECISION
On January 26, 2009, complainant filed an appeal from the agency's January
5, 2009 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate; and (2) whether
complainant established that he was subjected to discrimination on the
basis of disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Citizenship and Immigration Services (CIS) Assistant at the agency's
Sacramento, California Field Office. Formal Complaint, at 1.
On October 10, 2007, complainant applied for a CIS Assistant,
GS-1802-05/07 position in the Seattle, Washington Field Office
advertised under Vacancy Announcement Number CIS-PJN-156468-SEA.
Complainant's Affidavit (Complainant's Aff.), at 5. According to the
Vacancy Announcement, candidates were required to submit an application
package that included an assessment questionnaire and a resume. Report of
Investigation (ROI), Exh. 13A, at 6. The Vacancy Announcement stated
that candidates would be evaluated based upon the responses they provided
on the assessment questionnaire, rated based on their responses, and
assigned a score ranging from 70 to 100 points. Id. at 4.
On November 6, 2007, the Seattle Field Office received three Certificates
of Eligibles (Certificate), one each for each of the GS-5, GS-6, and GS-7
levels, from the Burlington Delegated Examining Unit (DEU). ROI, Exh. 18,
at 10. Each candidate's rating was determined by the Burlington DEU's
computerized evaluation of the candidate's responses to the completed
assessment questionnaire. ROI, Exh. 19, at 1. Complainant was ranked
third out of three candidates on the GS-7 Certificate, with a rating of
79 points. ROI, Exh. 13F, at 3. The selectee was ranked first on the
GS-7 Certificate, with a rating of 96 points. Id.
On November 19, 2007, the selectee1 was chosen from the GS-7 Certificate.2
Id.; ROI, Exh. 8A, at 2-3. No interviews were conducted for the
selection. ROI, Exh. 8, at 6. The Seattle Field Office Director was
the Selecting Official (SO) and the Seattle Field Office Records Manager
was the Recommending Official (RO). Id. at 1, 4; ROI, Exh. 9, at 2, 4.
On March 3, 2008, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability (deafness) when,
on December 19, 2007, he became aware that he had not been selected
for a CIS Assistant position in the Seattle Field Office, as advertised
under Vacancy Announcement Number CIS-PJN-156468-SEA. Formal Complaint,
at 1-2.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and, on November 18, 2008,
issued a Notice of Intent to Consider Issuance of a Decision without a
Hearing and requested that the parties submit their responses by December
9, 2008. Administrative Judge's December 15, 2008 Decision (AJ Decision),
at 2. The AJ received a December 9, 2008 response from the agency but did
not receive a response from complainant. Id. The AJ issued a decision
without a hearing on December 15, 2008, in favor of the agency. Id. at 7.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Agency's January 5, 2009 Final Order, at 1-2.
In her decision, the AJ assumed, arguendo, that complainant had
established a prima facie case of disability discrimination and found
that the agency had articulated a legitimate, nondiscriminatory reason
for its actions; namely, complainant's application was rated and scored
below the selectee's application. AJ Decision, at 5. In addition, the
AJ found that, beyond complainant's conclusory allegations that he has
been the victim of discrimination based on his disability, he had not
offered, and the record did not contain, factual evidence from which a
reasonable trier of fact could infer discriminatory motive. Id. at 6.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that he is qualified for the position.
Complainant's Appeal Brief, at 3. In addition, complainant argues that
he has received few promotions during his 10-year career at the agency
while other employees, some of whom he has trained, have been promoted
more quickly. Id. The agency did not file a response on appeal.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision the Commission must scrutinize
the AJ's legal and factual conclusions, and the agency's final order
adopting them, de novo. 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 essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
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").
Summary Judgment
The Commission must first determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record.
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, 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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount of
discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that
an administrative judge could order discovery, if necessary, after
receiving an opposition to a motion for a decision without a hearing).
Here, we find that the AJ's issuance of a decision without a hearing
was appropriate, because there existed no genuine issue of material fact
nor credibility determination to be resolved at a hearing.
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
discrimination on the basis of disability,3 the Commission finds that
the agency articulated a legitimate, nondiscriminatory reason for his
non-selection. Specifically, the SO and the RO both attested that the
selectee was chosen because he received the highest rating score (96) on
the GS-7 Certificate issued by the Burlington DEU and was recommended by
the District Director who had worked with him previously. ROI, Exh. 8,
at 5; ROI, Exh. 9, at 5. In addition, the RO stated that, although he
is unfamiliar with how the applications were scored by Burlington DEU,
he noted that the selectee was very well-qualified for the position,
had excellent references, and had completed very similar work to the
position that was being filled. ROI, Exh. 2, at 6.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reason is a pretext
for discrimination. In an attempt to show pretext, complainant argues
that he has been discriminated against because of his disability,
which SO and RO were aware of as he had included in his application a
"Schedule A" Letter of Deafness from the State of California's Health
and Human Services Agency, Department of Rehabilitation. Id. at 5, 10.
In addition, complainant attested that he has an outstanding 10-year
record of job performance with the agency. Id. at 7.
In non-selection cases, pretext may be found where complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In this case,
the Commission finds that complainant has not made this showing.
Although complainant attested to his qualifications in great detail in
asserting that he should have been selected, he also attested that he
did not know who was selected for the position and did not argue that his
qualifications are superior to those of the selectee. Complainant's Aff.,
at 6-10. Beyond complainant's bare assertions that he was discriminated
against because he is deaf, he has not produced evidence to show that
he was not selected for the position due to his disability. Ultimately,
the agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). In this case,
we find that complainant has failed to show that the agency's explanations
are a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the agency's final order, finding that complainant failed to establish
discrimination on the basis of disability.
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
June 11, 2010
Date
1 On December 13, 2007, the Seattle Field Office was notified that the
selectee had declined the position and the position was re-posted under
Vacancy Announcement Number CIS-PJN-166218-SEA. ROI, Exh. 8A, at 3.
2 No selections were made from the GS-5 or GS-6 Certificates. ROI,
Exh. 13F, at 1-3. Complainant was not listed on the GS-5 Certificate,
but was ranked fourth out of four candidates on the GS-6 Certificate,
with a rating of 79 points. Id. at 1-2.
3 According to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. For purposes of this
analysis, we assume, without so finding, that complainant is an individual
with a disability.
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0120091291
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091291