0120113979
01-20-2012
Frank Lucarelli, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Frank Lucarelli,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120113979
Hearing No. 550-2011-00281X
Agency No. 10-63-02569D
DECISION
Complainant filed an appeal from the Agency’s final order dated
September 12, 2011, finding no discrimination with regard to his
complaint. 29 C.F.R. § 1614.405(a). For the following reasons, we
AFFIRM the Agency’s final order.
BACKGROUND
In his complaint, filed on August 19, 2010, Complainant alleged
discrimination based on age (over 40) when in 2010, he was not hired for
employment with the Decennial Census as an Enumerator at the Local Census
Office (LCO) in Belleview, Washington. Report of Investigation (ROI),
Exhibit (Ex.) 2. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 5, 2011, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the
AJ’s decision.
ANALYSIS AND FINDINGS
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged nonselection. The AJ noted
that in February 2010, Complainant applied for employment and took
the Agency’s standard employment test and scored 92 points out of
a possible 110. AJ’s Decision at 6. Thereafter, on February 26,
2010, the Agency processed Complainant’s application and test score
and listed him as available for employment in the Agency’s Decennial
Application Personnel Pay System (DAPPS).
An Agency Assistant Manager of Administration (AMA) for the Belleview
LCO stated that after her office received a request for Enumerators from
management, her team entered the criteria provided by the manager into the
Agency’s DAPPS databases and generated a D-424 Selecting Certificate.
ROI, Ex. 7. The AMA indicated that the order by which a person came
up on a Selecting Certificate list was based on various criteria such
as test score, veteran’s preference, and the criteria specifically
requested by the manager. Id. The AMA also stated that by February
2010, the office had essentially finished hiring Enumerators for the
canvassing operations which would soon start. Specifically, the AMA
indicated that according to their record, Complainant was not placed on
a Selection Certificate; thus, he was not hired. Id.
Complainant maintains that an identified individual who took the test
in December 2009, which was earlier than when he took the test, i.e.,
on February 2010, was hired by the Agency in April 2010. ROI, Ex. 6;
Complainant’s August 18, 2011 Appeal Brief at 2. However, the Agency
indicated and the record reflects that the identified individual applied
for employment on December 10, 2009, i.e., two months earlier than
Complainant, received a higher test score of 95. ROI, Ex. 16. The Agency
also indicates and the record reflects that after Complainant applied
for the position at issue, there were two vacancies but his name did not
appear on a Selection Certificate for the positions because his test score
and work availability restrictions made him ineligible for the positions.
Agency’s November 14, 2011 Statement in Opposition to Appeal; Exs 6, 7.
Based on the foregoing, we agree with the AJ’s finding that Complainant
failed to identify any similarly situated individuals outside of his
protected group who were treated differently or more favorably. After a
review of the record, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
1/20/12
__________________
Date
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0120113979
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113979