0120111522
12-16-2011
Franklin Terry, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Franklin Terry,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120111522
Hearing No. 450-2010-00044X
Agency No. 09-06-061
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a Human Resource Specialist at the Agency’s Office of the
Assistant Secretary for Administration in Dallas, Texas. Report of
Investigation (ROI), at 1. Complainant sought EEO counseling and
subsequently filed a formal complaint.
Complainant alleges that he was subjected to discrimination on the bases
of race (African-American) and color (black) when, on December 4, 2008,
Complainant was not selected for promotion to the position of GS-13
Supervisory Benefits Advisor (SBA).
At the conclusion of the investigation, Complainant received a copy of the
investigative report. On November 18, 2010, an EEOC Administrative Judge
(AJ) issued a decision without a hearing finding that there was no genuine
issue of material facts in dispute, and concluded that Complainant had not
been discriminated against as alleged. Specifically, the AJ found the
Agency presented legitimate, nondiscriminatory reasons for its actions,
which Complainant failed to rebut.
On January 12, 2011, the Agency, fully implementing the AJ’s decision,
issued a decision finding no discrimination. Complainant appealed from
that decision.
On appeal, Complainant contends that the AJ erred in its analysis of
Complainant’s case because the AJ did not apply the lawful summary
judgment standards. Complainant’s Statement in Support of Appeal,
at 1 through 4. In response to Complainant’s appeal, the Agency
argues that the AJ’s decision thoroughly analyzed the legal principals
applicable to Complainant’s claims. The Agency states that there was
no evidence in the record that supported a finding that the failure to
select Complainant for the SBA position was based on Complainant’s
race or color. The Agency asserts that the record was clear that the
Agency did not select Complainant for the SBA position for legitimate
and nondiscriminatory reasons, and that Complainant had not established
that these reasons were pretextual. The Agency articulates that the
AJ’s decision granting summary judgment was correct; and accordingly,
the Agency’s decision adopting and fully implementing the AJ decision
should therefore be affirmed. Agency’s Statement in Opposition to
Complainant’s Appeal, at 1 through 7.
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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, we find summary judgment was appropriate as no genuine issues
of material fact exist. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its nonselection. Complainant applied and,
along with two other candidates, was deemed qualified for the position
of GS-13 SBA, Vacancy Announcement No. DD08192. The Employee Benefits
Security Administration (ESBA) Deputy Regional Director (Deputy Regional
Director), the selecting official, included the Associate Regional
Director as part of an interview panel to interview eligible candidates
for the SBA position. The Associate Regional Director recommended the
selectee for the supervisory position at issue. The Deputy Regional
Director selected the selectee for the supervisory position. ROI,
at Affidavits B and C.
The Associate Regional Director stated that although both Complainant and
the selectee had history as Benefits Advisor, the selectee had been a lead
Benefits Advisor since 2006, which entailed greater responsibilities.
The Associate Regional Director asserted that Complainant had
voluntarily given up his Benefits Advisor position in 2006 to pursue
other opportunities within the Agency, and that his recent lack of
experience may have led to his inability to answer certain questions
during the interview process. ROI, at Affidavit B.
The Deputy Regional Director stated that she selected the selectee for
the SBA position primarily because the selectee had over 8 years of
experience as a benefits advisor compared to Complainant with over 4
years of experience. Additionally, the Deputy Regional Director said
that the selectee was more technically proficient in the knowledge of
laws and regulations required of a supervisory benefits advisor. ROI,
at Affidavit C.
After a careful review of the record and contentions on appeal,
the Commission finds that Complainant failed to rebut the Agency's
articulated legitimate, nondiscriminatory reasons for its nonselection.
Additionally, the Commission finds that Complainant failed to show that
his qualifications for the SBA position were plainly superior to the
selectee’s qualifications or that the Agency’s actions were motivated
by discrimination. Moreover, the Commission finds that Complainant has
failed to show by a preponderance of the evidence that he was subjected
to discrimination on the bases of race or color.
CONCLUSION
The Agency’s decision finding no discrimination 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
December 16, 2011
__________________
Date
2
0120111522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111522