0120082746
03-06-2009
Norvel R. Wright, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Norvel R. Wright,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 0120082746
Hearing No. 550-2008-00031X
Agency No. YM070014
DECISION
On May 28, 2008, complainant filed an appeal from the agency's April
23, 2008 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as an Administrative Contracting Officer (ACO), GS-1102-12 at the
Defense Contracting Management Agency ("DCMA"), Northern California.
On February 7, 2007 complainant filed an EEO complaint alleging that he
was discriminated against on the bases1 of race (African-American), color
(black), and reprisal for prior protected EEO activity [under Title VII],
when:
(1) he was not promoted to a GS-1101-13 ACO position based on
accretion of duties; and,
(2) he was denied the opportunity to compete for the two GS-1101-13
ACO positions.2
At the conclusion of the investigation, complainant was provided 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 17, 2008 motion for a decision
without a hearing and issued a decision without a hearing on March
31, 2008.
The AJ addressed issue (1) and found that assuming complainant could
establish a prima facie case of discrimination/retaliation, the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the Team Leader stated that the work that the ACOs who
received promotions were performing was at a higher grade than that
performed by complainant. The AJ found that in fact the record showed
that these two ACOs had been performing duties beyond their position
descriptions for three to four years prior to their positions being
accreted. The AJ found that the ACOs were also the only individuals
holding a GS-1102-12 position within their organizational units. The AJ
noted that complainant alleged he had in the past performed duties at
the GS-13 level prior to joining DCMA and during his tenure at DCMA, and
that the agency partially disputed this. Noting that all disputed facts
will be resolved in complainant's favor, the AJ found that complainant
still did not show that he was currently performing duties at the GS-13
level when the position descriptions were reviewed in the Spring of 2006.
The AJ found that no proof of pretext had been established.
The AJ addressed issue (2) noting that he had considered complainant's
argument that his name was left off the organizational chart so as to not
allow him to compete for the two positions of GS-13 ACO. The AJ found
that even considering complainant's argument in a light most favorable
to him, the evidence adduced is insufficient to raise a genuine issue
of material fact that the GS-1101-13 positions were intentionally not
announced for competition so as to exclude complainant from consideration
because of his race, color or prior EEO activity. The AJ found that
complainant did not prove discrimination. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
Complainant did not submit any new arguments in support of his appeal.
The agency asks the Commission to affirm its final order. 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). 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. Department of Defense, 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). Here, the AJ
properly issued a decision without first holding a hearing in this case.
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 or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming complainant could establish a prima facie case of
discrimination on the alleged bases, the agency articulated a legitimate,
nondiscriminatory reason for its actions in issue (1). Specifically, the
Team Supervisor, Team Navy 2, was responsible for reviewing all GS-1102-12
position descriptions, including complainant's, to assess whether the
position should be accreted. She determined that two GS-1102-12 ACOs
(not in complainant's protected groups) were currently performing
duties beyond what was described in their position descriptions,
and recommended that these positions be accreted to a GS-1101-13. Two
Human Resources Specialists reviewed the accretion documentation to
insure that each position accreted met the stated criteria. The Team
Supervisor did not recommend accretion for complainant's position, or any
of the other GS-1102-12 ACOs. Management indicated that complainant's
position description was not forwarded on to Human Resources because
his position description accurately reflected his actual job duties.
Complainant has not presented persuasive evidence of discriminatory
or retaliatory animus. As to issue (2), complainant has not presented
evidence that the challenged actions were more likely than not, based on
his membership in a protected group. Accordingly, based on a thorough
review of the record, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, D.C. 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 (S0408)
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 (Z1008)
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
March 6, 2009
__________________
Date
1 Complainant initially alleged sex and age discrimination as well,
but subsequently withdrew these bases. These bases are not addressed
herein.
2 Issues (1) and (2) are inextricably related as they refer to the same
two promotions to GS-1101-13 ACO positions.2
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0120082746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013