0120073599
03-07-2008
Jeanne F. Lane, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Jeanne F. Lane,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 0120073599
Agency Nos. YT-06-0006, YM-06-0111
Hearing No. 550-2007-00135X
DECISION
Complainant filed an appeal from the agency's final action dated
August 3, 2007, finding no discrimination with regard to her complaints.
The record indicates that complainant, a Quality Assurance (QA) Specialist
(Aerospace), GS-11, filed her complaints alleging discrimination based
on sex (female), age (DOB: 4/2/1942), disability (diabetes and fractured
foot), and in reprisal for prior EEO activity when she was not selected
for: (1) Program Integration Specialist, GS-1101-12, advertised under
Vacancy Announcement Number WTH305486389 on October 13, 2005; (2)
Quality Assurance Specialist, GS-1910-12, advertised under Vacancy
Announcement Number WTH305884228 on January 5, 2006; and (3) Quality
Assurance Specialist, GS-1910-12, advertised under Vacancy Announcement
Number WTH306131031 on April 24, 2006.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On July
27, 2007, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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 nonselections.
With regard to claim (1), the AJ stated that a selecting official
(SO1) did not conduct an interview of applicants. Instead, SO1, based
upon her assessment of the candidates' applications selected a selectee
(SE1) who had applied for the position at issue as a lateral assignment.
SO1 stated that SE1 had supervisory work experience in that he had already
been performing the same GS-12 Program Integration Specialist position
for two years and had acquisition experience dealing with high profile,
high dollar programs. SO1 also stated that contrary to complainant's
speculation, SE1 had DAIWA certification in engineering and program
integration.
With regard to claim (2), the AJ stated that the agency convened a
review panel consisted of two members to assess candidates' applications
and conduct interviews. After interviewing complainant, the panel did
not refer her to a selecting official (SO2). A panel member explained
that complainant performed poorly during the interview, giving vague
responses to the interview questions. Another panel member also
explained that compared to complainant, both selectees interviewed
extremely well. SO2 stated that one selectee (SE2) had a degree in
operations management, supervisory performance awards, and letters of
appreciation from customers. She also stated that another selectee
(SE3) applied for reassignment and was already a GS-12 at the time of
the selection and was also well qualified for the job and had received
awards. Despite complainant's claim, the AJ indicated that there was
no evidence in the record to show that either selectee was lacking any
of the essential qualifications for the position at issue at the time
of the selections, including the proper certification requirements.
With regard to claim (3), the AJ stated that SO2 did not convene any
review panel or conduct interviews. SO2 made her selection based
on her assessment of the candidates' applications. After her first
selectee declined the position, she selected her second choice, a best
qualified applicant, SE4. SO2 stated that the position dealt with
NASA which required the incumbent to have certification in that area.
She also stated that SE4 possessed all of the qualifications that she
was seeking for the position, including relevant software experience.
SO2 indicated that complainant was not the best qualified for the position
and she was not certified in the NASA commodities that she needed.
Based on the foregoing, the AJ determined and we agree that complainant
failed to prove, by a preponderance of the evidence, that the agency's
legitimate, nondiscriminatory reasons for not selecting her for the
positions at issue were pretext for discrimination. Specifically,
the AJ stated that complainant failed to show that her qualifications
were plainly superior to the qualifications of the selectees. See Bauer
v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Department of
Education, EEOC Request No. 05970561 (August 6, 1998). It has been held
that an agency has broad discretion to carry out personnel decisions and
should not be second-guessed by the reviewing authority absent evidence of
an unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). The Commission does not address in this
decision whether complainant is a qualified individual with a disability.
Furthermore, complainant clearly has not claimed in her complaint that
she was denied a reasonable accommodation; nor has she claimed or shown
that she was required to work beyond her medical restrictions.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
3/7/08
__________________
Date
4
0120073599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036