01a53429
08-11-2005
Patricia Richmond, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Patricia Richmond v. Department of the Army
01A53429
August 11, 2005
.
Patricia Richmond,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53429
Agency No. ARCEMEM02SEP0037
Hearing No. 250-2003-08217X
DECISION
Complainant initiated an appeal from the agency's final order, dated
March 17, 2005, concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, an Accounting Technician at the
agency's US Army Corp of Engineers Finance Center, Millington, Tennessee
facility, filed a formal EEO complaint dated October 1, 2002, alleging
that the agency discriminated against her on the bases of race (Black),
sex (female), disability (sleep apnea), age (46), and retaliation, when:
In July 2002, complainant was not selected for the position of Accountant,
GS-510-05/11, Vacancy Announcement #243521DH2M.
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, dated February 24,
2005,<1> without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race, sex, disability or age discrimination. Specifically, the
AJ found that complainant failed to demonstrate that similarly situated
employees not in complainant's protected classes were treated differently
under similar circumstances when eight candidates were selected for
the Accountant positions. The AJ noted that four of the selectees were
also Black, that all of the selectees were female and that three of the
selectees were also over 40 years of age and many of the unsuccessful
candidates were younger than complainant.<2> Accordingly, the AJ found
that complainant did not present evidence which leads to an inference
of race, sex, or age discrimination.
The AJ further found that by her own testimony, complainant admitted
that she was not substantially limited by her disability (sleep apnea),
in any major life activity. Thus, the AJ found that complainant did
not establish a prima facie case of discrimination based on disability
because she was not a qualified individual with a disability as defined
by the Rehabilitation Act.
Similarly, the AJ found that complainant did not show the necessary causal
connection between complainant's association with another employee,
who had previously engaged in the EEO process, and her non-selection.
That is, the AJ found that none of the panel members were aware that
complainant was associated with another employee who had previously filed
an EEO complaint and that complainant had no other prior EEO activity
of her own.
Moreover, the AJ found that although complainant alleged that the agency
made its selections in order to fulfill a �quota system,� and pointed
out several discrepancies in the numerical scores given to applicants as
a result of a points system used by panel members to rate and compare
each applicant's education, experience, awards and performance, the AJ
determined that complainant did not show that her qualifications were
plainly superior to those possessed by the selectees. The AJ also found
that complainant did not show that the allegedly unfair rating system
had a disparate impact on any protected group. The AJ concluded that
complainant essentially argued that the selection process had been unfair,
but complainant did not show any causal connection between that unfairness
and complainant's race, sex, disability, or age or in retaliation for
prior protected activity. Accordingly, the AJ found that complainant
had not shown by a preponderance of the evidence that discrimination
had occurred in the selection process.
The agency's final order implemented the AJ's 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.
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 classes. We do not address in this
decision whether complainant is an individual with a disability under
the Rehabilitation Act.
We therefore AFFIRM the agency's final order finding no discrimination.
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:
August 11, 2005
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1The AJ's decision, bearing an issue date of
December 29, 2004, was transmitted to the agency, and by copy, to the
complainant, by letter dated February 24, 2005.
2The Commission observes that the three selectees over 40 years of
age were 49, 48 and 47 years of age at the time of the selection,
respectively.