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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