Paula Sind-Prunier, Complainant,v.Mark V. Rosenker, Acting Chairman, National Transportation Safety Board, Agency.

Equal Employment Opportunity CommissionJun 7, 2010
0120080080 (E.E.O.C. Jun. 7, 2010)

0120080080

06-07-2010

Paula Sind-Prunier, Complainant, v. Mark V. Rosenker, Acting Chairman, National Transportation Safety Board, Agency.


Paula Sind-Prunier,

Complainant,

v.

Mark V. Rosenker,

Acting Chairman,

National Transportation Safety Board,

Agency.

Appeal No. 0120080080

Hearing No. 570-2006-00702X

Agency No. NTSB 2006-07

DECISION

Complainant filed an appeal from the agency's final action dated August

31, 2007, finding no discrimination with regard to her complaint.

In her complaint, dated November 23, 2005, complainant, a Senior

Accident Investigator, GS-14, in the agency's Office of Highway Safety

in Washington, DC, alleged discrimination based on sex (female) and

in reprisal for prior EEO activity when: (1) she was not selected for

promotion to the position of Chief of Investigations, Office of Highway

Safety that was advertised under vacancy announcement number WA-TB-5-030;

and (2) she was not selected for temporary promotion to the position

of Deputy Director, NTSB Academy that was advertised under detail

announcement number 05-02.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On August

8, 2005, the AJ issued a decision without holding a hearing, finding no

discrimination. The agency's final action 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.

After a review of the record, we find that grant of summary judgment was

appropriate, as no genuine dispute of material fact exists. Moreover,

despite complainant's contentions on appeal, we find that the AJ did

not abuse his discretion in denying her motion for an extension of

the discovery period. The record indicates that the AJ issued his

Acknowledgement and Order on November 1, 2006. Therein, the parties

were notified that they must complete discovery within 70-days upon

receipt of this Order. Complainant received the Order on November 11,

2006, and the discovery period, thus, expired on January 20, 2007.

The record clearly indicates that complainant did not file a motion

for extension of the discovery period until February 22, 2007, i.e.,

a month after the discover period expired.

Complainant also contends that she was denied the opportunity to

depose an identified selecting official (SO1). The record indicates

that after a number of correspondences between the parties, SO1 was

scheduled to be deposed by complainant on January 18, 2007. Prior to

the scheduled deposition, complainant sent an electronic message to the

agency on January 16, 2007, indicating that she might need to reschedule

the deposition due to her work, i.e., investigating an accident in

Pennsylvania, and she would request the AJ an extension if necessary.

On January 16, 2007, the agency responded indicating that it would also

let the AJ know if complainant needed the extension and asked her for new

dates/times for the deposition. However, complainant did not request

the AJ for the extension until February 22, 2007, as described above.

Complainant contends that she was out of the office many days during

the relevant time period since she was required to travel to a number

of the accident scenes out of the town. However, the agency, undisputed

by complainant, stated that her accident investigation work encompassed

only 4 days of her regular working days during the discovery period.

The record indicates that on February 6, 2007, the agency timely filed

its Motion for Decision without a Hearing. Complainant received this

motion on February 7, 2007. However, she did not file her response

to the agency's motion within 15-day as set forth in the AJ's Order.

Instead, complainant filed a motion for extension of time to respond to

the agency's motion on February 22, 2007, i.e., the last day her respond

to the agency's motion was due. Based on the foregoing, we find that

the AJ did not abuse his discretion in denying complainant's motion for

an extension of the discovery period and extension of time to respond

to the agency's motion for a decision without a hearing.

In this case, the AJ determined that, assuming arguendo that complainant

had established a prima facie case of discrimination, the agency

articulated legitimate, nondiscriminatory reasons for the alleged actions.

With regard to claim (1), SO1 indicated that complainant was a specialist

in Human Factors while a selectee for the position at issue, male, was

both a specialist in highway engineering issues and a good generalist in

all other issues, i.e., the best investigator with the greatest breadth

of investigative knowledge. Specifically, the selectee had investigated

accidents in all of the different specialists, i.e., vehicle, human

performance, motor carrier, highway, and survival factors. SO1 also

indicated that complainant was clearly more educated than the selectee,

but education was not historically a requirement for the position

or a priority in hiring. SO1 stated that the selectee had a greater

priority for timeliness of work than complainant. The record indicates

that in her 2005 and 2004 performance appraisals, complainant received

"Excellent" and/or "Fully Successful" ratings, and not "Outstanding,"

for the timeliness for her work planning meeting drafts, group chair

reports, and/or incident dockets.

With regard to claim (2), the selecting official (SO2) for the alleged

NTSB Academy position, stated that she selected an identified individual,

female, for the Detail to the Deputy Director because the Detail was

not going to become a permanent position, so it was best to allow the

identified individual to continue the projects she started while on a

previous Detail to the NTSB Academy. Furthermore, SO2 indicated that the

Deputy was going to have management responsibilities, including appraisals

and staffing, and complainant did not have any management experience.

Upon review, the Commission agrees with the AJ that complainant failed to

rebut the agency's legitimate, nondiscriminatory reasons for not selecting

complainant for the alleged positions. Despite complainant's claim that

she had superior educational credentials, i.e., a doctoral degree, she

failed to show that her qualifications for the positions were plainly

superior to the selectees' qualifications or that the agency's actions

were motivated by discrimination. See Wasser v. Department of Labor,

EEOC Request No. 05940058 (November 2, 1995).

Accordingly, the agency's final action is AFFIRMED.

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, 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 (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

6/7/10

__________________

Date

2

0120080080

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013