Mario L.,1 Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120143178 (E.E.O.C. Jan. 29, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Mario L.,1
Complainant,

v.

Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120143178

Hearing No. 560-2014-00101X

Agency No. GSA-13-R6-Q-0090

DECISION

Complainant filed an appeal from the Agency’s August 7, 2014 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Chemist at the
Agency’s Heartland Supply Operations Center facility in Kansas City, Missouri. On June 13,
2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the basis of race (Black) when:

On March 27, 2013, Complainant was not referred for a Supervisor Supply
Service Representative position, Announcement Number 1306029DHMP.

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 Equal Employment

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.
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Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. When
Complainant did not object, the AJ assigned to the case granted the Agency’s May 5, 2014
motion for a decision without a hearing and issued a decision without a hearing on July 7,
2014.

In her Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ
found that neither party disputed that the area of consideration (AOC), identified in the
vacancy announcement at issue as “Who May Apply,” was limited to applicants currently
working for the Agency in Region 6, The Heartland Region, Federal Acquisition Service,
(FAS), National Customer Service Center (NCSC). The AJ found no dispute that
Complainant worked for the Agency, but did not work for the FAS NCSC part of the Agency.
The AJ further noted that the Heartland Supply Operations Center was not a part of the FAS
NCSC either.

The AJ considered that at the time relevant to the selection process, the Agency’s acting-
Administrator, A1, had issued a hiring memorandum in July 2012, that effectively imposed a
“temporary pause in the hiring” across the Agency and effectively disallowed any external
hires to be considered in hiring actions that occurred while the memorandum was in effect.
The AJ noted that the hiring “pause” was further explained in a memorandum also issued in
July 2012, by the Agency’s Chief People Officer. That memorandum, the AJ found, explained
that the “pause” applied to all external hires, whether for permanent, term or temporary
positions, and so, applied to the identified vacancy announcement to which Complainant
applied for consideration.

The AJ found that because Complainant was not an employee of FAS NCSC, he was thus an
external hire and the AJ concluded that Complainant did not fall into the AOC or group of
people eligible to be considered for employment through the announcement. The AJ found
that Complainant’s application was not forwarded to the selecting official after the Agency’s
Human Resource Specialist assigned to this hiring action found that Complainant was not an
eligible candidate.

The AJ found no dispute that the two candidates selected were both White and were both
within the AOC because they were employees of the NCSC. The AJ concluded that the
undisputed evidence showed that Complainant was not considered for selection because he was
determined to not be eligible for the position. The AJ found no dispute that the limitation of
the AOC imposed by the then Acting-Administrator’s memorandum applied equally to all
potential applicants and had nothing to do with Complainant’s race, but with the fact that
Complainant was not an employee of the NCSC. The AJ concluded that Complainant did not
present evidence that he was qualified for the position because Complainant did not show that
he was even eligible for the position. Additionally, the AJ found that Complainant did not
identify any other applicant, not in Complainant’s protected racial group, who was treated
better than Complainant was treated. Accordingly, the AJ found that Complainant failed to
show that the Agency’s reasons for its action were a pretext to mask discrimination.

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The AJ considered Complainant’s contention that the limitation of the AOC disparately
impacted applicants in Complainant’s racial group. However, the AJ found that Complainant
failed to present statistical evidence that the limitation imposed upon the AOC
disproportionately impacted Black applicants as Complainant alleged. The AJ concluded that
the material facts were not in dispute and that Complainant did not show that he was subjected
to race discrimination when he was not considered for the position of Supervisory Supply
Service Representative.

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.

On appeal, Complainant states that the investigation conducted by the Agency was inadequate.
Complainant requests that the complaint be remanded for a supplemental investigation so that
statistical evidence of the disparate impact imposed by the limited area of consideration during
the selection process can be produced by the Agency to prove that the limitation was racially
discriminatory.

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.

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
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“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).

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). He must generally 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). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

In the instant case, we find the AJ properly issued her Decision without a hearing. We concur
that the material facts are not disputed and that Complainant did not present evidence that the
legitimate, nondiscriminatory reason articulated by the Agency was a pretext to mask
discrimination. We also find that the investigation was adequate.

Specifically, we find, as did the AJ, that Complainant was not eligible for the position
identified in his complaint because he was not employed in the Agency’s National Customer
Service Center and therefore was not an Agency employee within the area of consideration
described in the vacancy announcement. We find that Complainant did not identify or produce
any statistical evidence to support his position that limiting the group of employees who may
apply for selection to those who already worked for the NCSC created a disparate impact on
African American or Black applicants. We further find that Complainant did not identify any
other applicants who were not in Complainant’s protected group, who were treated any better
than Complainant was treated in the selection process.

We find that Complainant presented no evidence from which a trier of fact could conclude that
Complainant’s race played any role in the Agency’s decision to limit the area of consideration
to current NCSC employees so that Complainant would be ineligible to be selected for the
position.

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CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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
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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, Director
Office of Federal Operations

January 29, 2016
Date