0120081576
02-04-2011
Robert B. Freader, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Robert B. Freader,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120081576
Hearing No. 540-2007-00157X
Agency No. BIA-06-039
DECISION
On February 19, 2008, Complainant filed a timely appeal from the Agency's
February 11, 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 Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
(AJ) issuance of a decision without a hearing was appropriate; and (2)
whether the AJ properly found that Complainant was not subjected to
unlawful discrimination based on his race, national origin, and color
when he was not selected for the Substation Operator position.
BACKGROUND
The record reflects that from March 2003 through May 2004, Complainant
worked as a Journeyman Lineman at the Agency's San Carlos Irrigation
Project (SCIP) in Coolidge, Arizona. In January 2006, the Agency
issued a vacancy announcement for the Substation Operator position.
The announcement noted that preference for filling vacancies would be
given "to qualified Indian candidates in accordance with the Indian
Preference Act of 1934 (Title 25, U.S.C. Section 472)." Complainant
applied for the position. All of the applicants were found qualified,
and they were referred for further consideration. In March 2006,
Complainant learned that he was not selected for the position.
Complainant filed an EEO complaint dated June 20, 2006, alleging that
the Agency discriminated against him on the bases of race (Caucasian),
national origin (Not Specified), and color (white) when, in March 2006,
he was not selected for the position of Substation Operator, BB-5407-00,
advertised under Vacancy Announcement No. SCP-06-05, without consideration
of his eligibility for reinstatement rights.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did
not warrant a hearing and issued a decision without a hearing on December
17, 2007. Specifically, the AJ found that Complainant failed to establish
that the Agency's legitimate, nondiscriminatory reasons for not selecting
him were a pretext for unlawful discrimination. The Agency subsequently
issued a final order adopting the AJ's finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in finding no
discrimination. He argues that he was discriminated against when the
Agency selected a Native American candidate for the position despite the
fact that he (Complainant) was the most qualified candidate. In response,
the Agency urges the Commission to affirm its final order.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chap.9, � VI.B. (Nov. 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 Chap. 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").
ANALYSIS AND FINDINGS
Summary Judgment
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as Complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of
discrimination, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden
of establishing 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 Constr. 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 802
n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of this decision, we assume without so finding that
Complainant has established a prima facie case of discrimination. We find
that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. The Administrative Assistant, the rating official, averred
in her affidavit that the Agency received three applications for the
position, and she found all three applicants qualified. Administrative
Assistant's (AA) Affidavit at 4. She averred that she determined that
the selectee was qualified for the position based on his work experience,
including 36 months working as a Substation Operator/Telecommunications
Equipment Operator, and his knowledge of SCIP systems. Id. The Foreman,
the selecting official, averred in his affidavit that Complainant was not
selected for the position because the Indian Preference Act required the
selection of a qualified Native American candidate over any qualified
non-Native American candidates. Foreman's Affidavit at 3-5. A Native
American candidate was qualified for the position, and, as a result,
Complainant was not selected. Id. The Foreman averred that Complainant's
reinstatement rights did not supersede the Native American preference.
Id. at 5. The Foreman averred that the selectee was qualified for the
position because he had work experience as a Substation Operator. Id.
AA noted that the selection was later cancelled, and the position was
to be re-advertised at a later date. AA's Affidavit at 10.
Complainant now bears the burden of proving, by a preponderance of the
evidence, that the Agency's articulated reasons for the non-selection
were pretext for discrimination. Pretext may be shown either directly,
by showing that a discriminatory reason more likely motivated the
employer, or indirectly, "by showing that the employer's proffered
explanation is unworthy of credence." Burdine, 450 U.S. at 256.
Rejection of the employer's proffered reason permits the trier of fact
to "infer the ultimate fact of intentional discrimination." Hicks,
509 U.S. at 511. Upon review, we find that Complainant failed to
establish pretext. We find no evidence that the Agency's actions were
motivated by discriminatory animus. Although Complainant conceded that
the Indian Preference Act required the Agency to select a qualified
Native American candidate for the position, he argued that the selectee
was not qualified for the position and that the Act allowed the Agency
to discriminate against non-Native Americans. We find that the record
evidence established that the selectee was qualified for the position
based on the work experience listed in his application.
With respect to the Indian Preference Act, the Commission notes that
the Federal policy of according employment preferences to Indians in
the Indian service dates as far back as 1834. Act of June 30, 1834, 25
U.S.C. � 45. Since that time, Congress has repeatedly enacted various
preferences of the type at issue here. Currently, the modern Indian
Preference Act, 25 U.S.C. � 472 et seq., provides that qualified Indians
shall have preference to appointments to vacancies in the Bureau of
Indian Affairs and the Indian Health Service. The purposes of the Indian
preference laws are to give Indians a greater participation in their own
self-government, to further the government's trust obligation towards the
Indian tribes, and to reduce the negative effects of having non-Indians
administer matters that affect Indian tribal life. Morton v. Mancari,
417 U.S. 535, 542 (1974).
We have stated that there is no doubt that Indian preference laws result
in employment disadvantages within the Agency for non-Indians. See
Eisenbise v. Dep't of Health and Human Servs., EEOC Appeal No. 01933009
(Nov. 24, 1993). However, Congress apparently decided that in this
particular employment situation, the good to be gained by the preference
outweighed the harm caused by it to non-Indians. The Supreme Court has
directly ruled that the Act was not repealed or affected by the Equal
Employment Opportunity Act of 1972, which amended Title VII to proscribe
discrimination in most areas of Federal employment. Morton, 417 U.S. at
546-551. The Court in Morton specifically found that Indian preference
is a longstanding and important component of the government's Indian
program which does not violate Title VII. Id. Accordingly, we concur
with the AJ's finding that, although Complainant met the qualifications
for the Substation Operator position, the selection of a qualified Native
American candidate for the position at issue was due to the mandate of
the Act rather than discriminatory animus based on Complainant's race,
national origin, or color.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant failed to present evidence
that any of the Agency's actions were motivated by discriminatory animus
towards him. We therefore discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the Agency's final
order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 4, 2011
Date
2
0120081576
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081576