01A40279
02-12-2004
Nolan L. Kimbrough, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Nolan L. Kimbrough v. Department of the Army
01A40279
February 12, 2004
.
Nolan L. Kimbrough,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A40279
Agency No. AFBVO005A0210
Hearing No. 230-2001-04196X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Program Analyst, GS-343-13, at the
agency's Directorate for Resource Management, OMA Budget (AMSTA-CM-BEM),
Tank-Automotive and Armaments Command (TACOM) in Warren, Michigan, filed
a formal EEO complaint on June 16, 2000, alleging that the agency had
discriminated against him on the basis of race (African-American), when
he was not selected for the position of Business Manager, GS-0301-14,
advertised by Job Opportunity Announcement Number BV006027.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
following submission of an agency Motion for Summary Judgment, finding
no discrimination.<1>
The AJ concluded that complainant failed to establish a prima facie
case of race discrimination because he applied and was qualified for the
position of Business Manager. The AJ further concluded that complainant
failed to present evidence to support a finding or create an inference
that the agency's articulated reasons for the nonselection are a pretext
for discrimination on the basis of race. The AJ further found that
assuming arguendo that complainant established a prima facie case of race
discrimination, management articulated a legitimate, non-discriminatory
reasons for the nonselection. The AJ concluded that complainant failed to
establish by a preponderance of the evidence that the agency's articulated
reasons were a pretext to mask unlawful discrimination.
The AJ found that six candidates, including complainant, were identified
as being qualified for the position of Business Manager, GS-0301-14.
The AJ found that the selecting official (SO) stated that she set up
a panel of three members to interview the candidates. The SO further
stated that the panel interviewed and scored each candidate by using
a matrix; and made a recommendation to her. The AJ indicated that the
panel submitted a list of the candidates to the SO with a recommendation
of the selectee, not in complainant's protected class, for the subject
position due to her high scores. Further, the AJ found that the
selectee received a score of 92.34, while complainant received a score
of 60.67. Furthermore, the AJ noted that it was one of the panel members'
determination that the selectee was �more qualified than the complainant
because the overall results of the interview and experience reflected in
her resume showed that she had a greater depth and breadth of experience
and training than the complainant did.� The AJ noted that a panel member
stated that although complainant had extensive experience in budget, he
lacked the requisite acquisition experience and the �day-to-day processes
of the acquisition system� for the subject position. The AJ noted
that it was SO's determination that after she reviewed the selection
package, she chose the selectee for the subject position because of
her �overwhelmingly higher� score than any of the other candidates.
The AJ found no evidence to support complainant's contentions that he
was more qualified than the selectee.
With respect to complainant's claim that the interview process was flawed
because he gave the same answers to questions 1, 7 and 9 as the selectee
but received less points from the panel members who did not take notes
during his interview, the AJ concluded that complainant provided no
evidence to support this contention. Specifically, the AJ noted that
a review of the panelists' notes indicated that they consistently took
notes of the candidates during the interview process with their own style.
Moreover, the AJ found that there was no evidence that any discriminatory
improprieties had taken place with regard to the selection process.
The agency's final action implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final action.
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, 322-323 (1986); Oliver
v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome
of a 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.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
Accordingly, the agency's final action implementing the AJ's decision
was proper and 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
February 12, 2004
__________________
Date
1The record contains no copy of the agency's Motion for Summary Judgment.