0120110798
09-14-2012
John E. Zak, Complainant, v. Dr. Rajiv Shah, Administrator, Agency for International Development, Agency.
John E. Zak,
Complainant,
v.
Dr. Rajiv Shah,
Administrator,
Agency for International Development,
Agency.
Appeal No. 0120110798
Hearing No. 570-2009-00775X
Agency No. EOP 08-13
DECISION
On October 29, 2010, Complainant filed an appeal from the Agency's September 24, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was subjected to national origin, sex, and reprisal based discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of U.S. Personal Services Contractor, Contract Specialist for the Procurement Management Unit in Maputo, Mozambique under Solicitation No. 656-08-016. He was not selected for the position. On September 17, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (U.S.Citizen), sex (male), and reprisal for prior protected EEO activity when:
1. on May 2, 2008, he was not interviewed for the position; and
2. when on July 2, 2008, he learned that the Solicitation No. 656-08-016 was being canceled and the position was re-posted for solicitation.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 22, 2010 motion for a decision without a hearing and issued a decision without a hearing on September 17, 2010.
The AJ found the following facts: On March 19, 2008, Complainant applied for the position at issue in this case. The Agency received three other applications for the position. In a memorandum dated March 24, 2008, Supervisory Executive Officer (SEO) informed the Deputy Mission Directory (DMD) that Complainant did not meet the minimum requirements for the position because he did not possess the "relevant working experience."
On April 8, 2008, the remaining applicants were interviewed by a Technical Evaluation Committee (TEC), comprised of the Acting Executive Officer; Purchasing Agent, Acquisition Specialist, and Regional Contracting Officer. The TEC asked the same set of interview questions. After the interviews, the members of the TEC discussed their impressions of the candidates and assigned each candidate a final score. The TEC determined which candidate to recommend based on the low total of each TEC member's score of the candidates. Applicant1 (Female) received a total score of ten points. Applicant2 (Female) received a total score of four points, and Applicant3 (Male) received a total score of (10) points. The TEC recommended that Applicant2 be selected for the position in a memorandum dated April 10, 2008. In the memorandum, the TEC noted that Applicant2's strengths were that she had "relevant USAID experience" in procurements, noting that her "training and experience is a close fit for the technical and high volume requirements of [the] position." On April 17, 2008, the Agency, via e-mail, offered the position to Applicant2.
On April 29, 2008, Complainant contacted an Agency Human Resources official via e-mail to inquire about the status of his application. Complainant was informed that he was "not among the shortlisted candidates" for the position. On May 23, 2008, Complainant contacted the Mission Director (MD) via e-mail to inform him that he had applied for the subject position and that he had "met (exceeded)" all of the stated qualifications for the position but was "not even interviewed for the job." Complainant further stated that he had already began EEO counseling but still had not received a "satisfactory explanation." Accordingly, Complainant informed MD that he wished to discuss the matter with him "before [he filed his] official EEOC complaint."
MD met with Complainant and as a result, MD sought a review of Complainant's application. DMD informed Complainant that "through an oversight he was not included in the interview schedule for the position" and that "his CV met the basic criteria." In a June 10, 2008 e-mail, DMD informed the members of the TEC that, due to an oversight, Complainant had been "inadvertently disqualified by HR and . . . should have been considered for the position." DMD instructed the TEC to interview Complainant, and on June 19, 2008, he was interviewed.
In the interim, on June 5, 2008, the Agency was informed by a USAID Personnel Security Specialist, that because Applicant2 was not a U.S. citizen, she could not be granted a secret clearance as requested. Thereafter, the Agency undertook efforts to resolve the secret clearance issue for Applicant2 but was ultimately unsuccessful in its efforts.
In a memorandum dated July 1, 2008, the TEC stated that it had interviewed Complainant but that Applicant 2 was the preferred candidate for the position. Complainant was ranked the next best candidate. The TEC stated that Complainant "showed great potential but has no Acquisition and Assistance experience, therefore no justification to employ him at a GS-13 level can be granted. The [TEC] recommends that this solicitation be canceled and re-competed." The July 1, 2008 Memorandum noted Complainant's strengths as demonstrating "great analytical skills, is clearly a multi-tasker, can work under pressure, has some knowledge of Portuguese and an extensive background in mediation." However, the TEC stated in the memorandum that Complainant's weakness was that his "experience is primarily in law with the USG," and that he did not have "any Acquisition and Assistance experience," had never "performed the duties of a Contracts Specialist," nor did his CV or interview "demonstrative knowledge of USG regulations pertaining to the procurement of goods and services."
On July 2, 2008, the Agency informed Applicant 2 that the offer of employment was withdrawn due to her inability to obtain appropriate security clearance. Ultimately, the Solicitation No. 656-08-016 position was canceled, and the position was not reposted.
The AJ found that assuming that Complainant establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 1, Complainant was not initially interviewed for the position because he was deemed to lack the "relevant working experience" to meet the minimum requirements for the position.
The AJ found that Complainant failed to establish that the articulated reasons were a pretext for discrimination. The AJ addressed Complainant's contentions that the Agency failed to sufficiently articulate a reason for not interviewing him. The AJ found "there is nothing vague or general about the explanation that Complainant was deemed to lack relevant work experience." The AJ noted that even if the Agency could not resolve the discrepancy between the initial determination that Complainant did not have the relevant work experience with MD's assessment that Complainant met the minimal qualifications, Complainant has not established that this discrepancy establishes that summary judgment was not appropriate.
With regard to claim 2, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, MD provided affidavit testimony that the position solicitation was canceled because the candidate the Agency wished to select could not be hired. MD further testified that the reason the position solicitation was not reposted was because the Agency was able to obtain additional support from a regional office and therefore no longer required the position to be filled.
In order to establish that the Agency's reasons were pretext, Complainant made numerous arguments. Complainant argued that once he was interviewed and ranked second after Applicant2, the TEC recommended that the position be cancelled and reposted so that it would not have to hire him. The AJ found this argument to be speculative, unpersuasive and inconsistent with the evidence in the record.
Complainant also argued that the Agency failed to articulate a legitimate, nondiscriminatory reason with regard to why he was not initially provided an interview. The AJ explained that even assuming the Agency failed to explain the discrepancy between the initial assessment of Complainant's application and the ultimate one, the lack of an explanation "does not preclude summary judgment."
Complainant further argued that the Agency delayed in determining that Applicant2 was ineligible for the position in order to avoid selecting him for the position. The AJ found that Complainant again speculated that this was the case and the facts he asserted to support his position were not consistent with the facts in the record.
Ultimately, the AJ determined that the Agency found that Complainant had no Acquisition and Assistance experience and had never performed the duties of a Contract Specialist. Although the TEC acknowledged that Complainant demonstrated "great analytical skills" and was "clearly a multi-tasker," he did not possess the necessary technical expertise for the position. Complainant also failed to demonstrate that Agency considered his protected bases while making this determination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he established that he was discriminated against as alleged. Further, Complainant argues that the Agency failed to articulate a legitimate, nondiscriminatory reason for claim 1. Complainant also argues that the articulated reasons for claim 2 are a "sham." Complainant maintained that the Agency was aware that selectee 1 was not qualified but delayed to withdraw the offer in order to deny him the position. Complainant also argues that the AJ was hostile to Complainant. Complainant finally argues that the AJ failed to address his retaliation claim and failed to adequately develop the record with regard to this allegation.
ANALYSIS AND FINDINGS
Although Complainant argues that the AJ's decision shows that she bore hostility towards him, we find that nothing in the decision or the record demonstrates that the AJ abused her discretion. Further, we note that nothing in the decision shows that the AJ's tone was improper or unprofessional.
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
We find that the AJ appropriately issued a decision without a hearing. The record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts was provided; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding. To the extent that Complainant argues on appeal that the basis of retaliation was not adequately investigated, we find that the record is adequately established to issue a determination without a hearing. Complainant has failed to articulate what evidence is missing from the record and the relevance of that evidence to his case. Although the AJ did not specifically discuss the facts surround his retaliation claim, Complainant ultimately bears the responsibility of proving retaliation. In this case, we find he failed to do so, see infra.
Preliminarily, we note that with respect to Complainant's claim of discrimination based on national origin, the term "national origin" does not include citizenship. See Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88 (1973). We also note that the Commission defines national origin discrimination as including, in pertinent part, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin. 29 C.F.R. � 1606.1. In this case, Complainant alleges that he was discriminated against based on his United States citizenship and argues that a non-United States citizen was treated more favorably than he. There is no indication in the record that Complainant is arguing that the Agency used citizenship as a proxy for national origin. Therefore, because citizenship is not a protected basis under Title VII, we decline to address Complainant's allegation of national origin discrimination.
Turning to Complainant's allegation of failure to interview and the ultimate nonselection, we note that we note that to prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of sex discrimination and retaliation with regard the failure to interview him and the decision to not repost the position, we find that the Agency articulated legitimate, nondiscriminatory reasons as to why Complainant was initially interviewed and the position was not reposted.
With regard to the failure to interview claim, the Agency stated that Complainant did not meet the minimum requirements for the position because he did not possess the "relevant working experience." Because we find that the Agency articulated legitimate, nondiscriminatory reasons, we now turn to Complainant's burden to prove that those reasons are a pretext for discrimination. Complainant maintains that initially he was not interviewed because he did not hold the requisite experience for the position but after meeting with MD, it was determined that he had the minimal qualifications to warrant an interview. While it appears that there is a discrepancy, we find that this alone does not establish that the Agency was motivated by discriminatory reasons. We note that the DMD testified that due to an oversight Complainant should have been interviewed for the position. However, Complainant has not offered any evidence that this error was due to his protected bases or prior EEO activity. Accordingly, we find that Complainant failed to establish that he was discriminated or retaliated against as alleged.
Similarly, with regard to the failure to repost the position, the Agency stated that it received assistance from another office and no longer required for this position to be filled. Because we find that the Agency articulated a legitimate, nondiscriminatory reason, we again turn to Complainant's burden to prove that those reasons are a pretext for discrimination. Complainant failed to provide any evidence to demonstrate that the Agency's proffered reason was not worthy of credence. There is nothing in the record to show that there was still a need for this position. Further, Complainant offers no evidence to support his assertions that the Agency did not repost the position to avoid hiring him because of prohibited discriminatory or retaliatory reasons.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Final Order adopting the AJ's finding of no discrimination or retaliation.
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
___9/14/12_______________
Date
1 The Agency dismissed Complainant's allegation in a Final Agency Decision dated October 29, 2008. Complainant appealed the FAD to the Commission. Prior to the Commission issuing a decision on the appeal, the Agency rescinded the FAD and processed the complaint.
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0120110798
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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