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