01a55753_r
01-18-2006
Kelley J. Romero, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Kelley J. Romero v. Department of Justice
01A55753
January 18, 2006
.
Kelley J. Romero,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A55753
Agency No. P-2004-0086
Hearing No. 350-2004-00186X
DECISION
Complainant appeals to the Commission from the agency's July 27, 2005
decision finding no discrimination. Complainant alleges discrimination
on the bases of sex (female) and age (date of birth: October 11, 1956)
when, on October 16, 2003, she was not selected as a Correctional
Counselor at the Federal Correctional Institutional (FCI) in Tucson,
Arizona. Without holding a hearing, an EEOC Administrative Judge (AJ)
issued a decision on June 21, 2005, finding that complainant had not
been discriminated against. Specifically, the AJ found that the agency
presented a legitimate, nondiscriminatory reason for its action, which
complainant failed to rebut. The agency, on July 27, 2005, issued a
decision fully implementing the AJ's decision. Complainant now appeals
from that 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. 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.
We find that the agency articulated a legitimate, nondiscriminatory
reason for the nonselection. The Selecting Official (SO) stated that
she selected the selectee because of his exemplary performance record
throughout his Bureau of Prisons (BOP) career. The SO said that she took
note of the number of awards that the selectee had received throughout
his career, as well as the selectee's performance appraisal. The SO
asserted that she spoke to the selectee's supervisors and they described
the selectee as a hard worker with a super attitude. The SO reported that
the selectee's supervisors indicated to her that the selectee was the
type of individual that could tackle problems, a good problem solver,
very much a team player with the rest of the selectee's coworkers,
very dependable, and a person who demonstrated a lot of initiative.
The SO argued that, when she looked at the selectee's paperwork, she
believed that the selectee's paperwork was very well done, and it cited
a lot of accomplishments when the selectee was a correctional officer,
as far as the selectee's supervision of inmates.
The SO claimed that complainant's performance record was not as exemplary
as the selectee's with regard to awards and the performance appraisal.
The SO stated that complainant was not described by her coworkers in
such an excellent way as the selectee. The SO asserted that complainant
was not described, as the selectee was, as a great worker with a great
attitude. The SO argued that complainant was basically described as
an average to above performer, and complainant's paperwork was not as
impressive as the selectee's.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant failed to show that her qualifications for the position were
plainly superior to the selectee's qualifications or that the agency's
action was motivated by discrimination. Complainant failed to show,
by a preponderance of the evidence, that she was discriminated against
on the bases of sex or age.
The agency's decision finding no discrimination 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
January 18, 2006
__________________
Date