Janet B. Walton, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 12, 2009
0120093181 (E.E.O.C. Nov. 12, 2009)

0120093181

11-12-2009

Janet B. Walton, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Janet B. Walton,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120093181

Agency No. GIPSA-2007-00336

Hearing No. 461-2008-00018X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's July 9, 2009 final order concerning an equal

employment opportunity (EEO) complaint claiming employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

On April 2, 2007, complainant filed the instant formal EEO complaint.

Therein, complainant claimed that the agency discriminated against her

on the bases of race (African-American), sex (female), and age (over 40)

when:

on January 17, 2007, she learned that she was not selected for the

Agricultural Commodity Grader, Area Manager position, GS-1980-12,

advertised under Vacancy Announcement Number 6GR-2007-0007.

Following the investigation into her formal complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On June 2,

2009, the AJ issued a decision by summary judgment in favor of the agency.

On July 9, 2009, the agency fully implemented the AJ's decision in its

final order.

The AJ found that complainant did not establish a prima facie case of

age discrimination because she failed to identify similarly situated

individuals outside of her protected group who were treated more favorably

under similar circumstances (one selectee was older than complainant

while the other selectee was younger by only three years). However,

the AJ found that complainant established a prima facie case of race and

sex discrimination because the selectees were outside of complainant's

protected groups. The agency nonetheless found that management

articulated legitimate, nondiscriminatory reasons for its actions which

complainant failed to show were a pretext for discrimination.

The AJ noted that eleven candidates, including complainant, were

considered qualified for the position of Agriculture Commodity Grader,

Area Manager and were referred to the selecting official (SO) for

consideration. The AJ noted that the SO stated that he implemented a

panel of three agency officials to interview the candidates and recommend

the top five candidates to him for consideration. SO stated that he used

the following four categories: "honesty, trustworthiness, good worker,

and respectful with their peers and co-workers. Honesty meant being

able to perform their duties with integrity. Trustworthiness means able

to perform their duties with minimal supervision and provide support to

upper management. Good worker means that they are able to work well with

others. Respectful means that they have a good working relationship with

their peers and subordinates. I had worked with all of these individuals

and looked at these categories based on my experiences with them."

SO stated that he chose two selectees for the subject positions.

SO stated that he selected one of the two selectees (S1) because he never

had any problems with him and "he is very open and honest about things.

[S1] rated a perfect five on trustworthiness, good worker, and respectful

based on my work experience with him." SO stated that the other selectee

(S2) was rated the same as S1. SO further stated "the reason I put [S2]

number one is that he had attended training and schooling. The training

was only to be used as an edge when a tiebreaker was necessary. [S2]

rated a perfect five on trustworthiness, good worker, and respectful based

on my work experience with him." SO stated that although complainant was

"very close" to S1 and S2 in the final ratings, he did not select her.

Specifically, SO stated that based on his experience with complainant,

"I have observed that she has not reached the same level in her ability

to work well with others as it compares to the abilities demonstrated by

[S1] and [S2]." Moreover, SO stated that complainant's race, sex and

age were not factors in his determination to select S1 and S2 for the

subject positions.

One of the three panelists (P1) stated that after the panel interviewed

the candidates, including complainant, they sent a list of the top

five candidates to SO for consideration. P1 stated "I know that we sent

forward [S1] and [S2] as the top two candidates. I remember [complainant]

and [named candidate] were very close in how they were ranked. [S1] and

[S2] were more upfront, did not stumble with the questions, and gave

quick responses that covered all the areas we were asking. They also

gave good examples of work experience that applied to the questions,

and that is what made them stand out."

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.

Complainant has offered no persuasive arguments on appeal regarding the

AJ's decision to issue a decision without a hearing, or regarding the

AJ's findings on the merits. Therefore, after a review of the record

in its entirety, including consideration of all statements submitted

on appeal, it is the decision of the Equal Employment Opportunity

Commission to AFFIRM the agency's final order, because the Administrative

Judge's issuance of a decision without a hearing was appropriate and a

preponderance of the record evidence does not establish that unlawful

discrimination occurred.

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

November 12, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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