Larraine S.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.Download PDFEqual Employment Opportunity CommissionJun 3, 20160120140540 (E.E.O.C. Jun. 3, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Larraine S.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency. Appeal No. 0120140540 Hearing No. 570-2012-00526X Agency No. OCC-11-0731-F DECISION Complainant filed an appeal from the Agency’s final order dated November 1, 2013, finding no discrimination with regard to her 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. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In her complaint, dated October 5, 2011, Complainant alleged discrimination based on race (Black) and sex (female) when she was not selected for the position of Security Specialist, Series 0080, Grade NB-V, advertised under vacancy announcement MP-AC-11-024. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 25, 2013, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120140540 2 ANALYSIS AND FINDINGS 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged nonselection. During the relevant time period, Complainant was employed as a Personnel Security Technician, Series 0086, Grade NB-IV, with the Agency in Washington, D.C. Complainant claimed that she applied for the position of Security Specialist, Series 0080, Grade NB-V, at issue on July 22, 2011, but was not selected. The Agency Human Resources (HR) Specialist indicated that she processed the vacancy at issue and issued the initial certificate for qualified candidates, which included Complainant and a selectee (White, male). The Selecting Official (SO) indicated that he decided to convene two review panelists to review the qualified candidates’ resumes and KSAs (Knowledge, Skills, and Abilities) for the vacancy and score them using the application tracking and rating sheet. One panelist gave Complainant a score of 10 (out of possible 18) and the selectee a score of 18; the other panelist gave Complainant a score of 12 and the selectee a score of 18. Specifically, the panelists indicated that compared to the selectee, Complainant had no emergency management program or information security program experience, did not have highly controversial personnel security adjudications experience, and did not obtain Lean Six Sigma green belt or black belt certification. The HR Specialist stated that the review panelists provided her with their assessment, described above, and she determined Complainant not to be a highly qualified candidate based on her score and referred the selectee to the SO who ultimately selected the selectee for the position at issue. The AJ noted and Complainant acknowledged that she received lower performance evaluations for fiscal years 2010 and 2011, i.e., she received a total summary rating of 3 (4 being the 0120140540 3 highest rating) whereas the selectee received a rating of 4. With regard to training opportunities prior to the selection at issue, there is no evidence that Complainant requested and was denied training. After a review of the evidence in the record, the AJ determined and we agree that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting her for the position. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to the selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 0120140540 4 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 3, 2016 Date Copy with citationCopy as parenthetical citation