0120091385
07-10-2009
Robert O. White, Sr., Complainant, v. Robert C. Tapella, Public Printer, United States Government Printing Office, Agency.
Robert O. White, Sr.,
Complainant,
v.
Robert C. Tapella,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120091385
Hearing No. 570200800261X
Agency No. 0723
DECISION
On February 12, 2009, complainant filed an appeal from the agency's
January 13, 2009 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At all times relevant to this complaint, complainant worked as a Federal
Police Officer, PG-6, at the agency's Office of Human Capital (OHC)
in the Government Printing Office.
In April 2007, complainant applied for the position of Supervisory
Police Officer, Uniform Police Branch (UPB), PG-0083-07, which the agency
advertised under Vacancy Announcement Number 07-115.
Shortly after complainant submitted his application, the agency found
that he and five other applicants met the position's eligibility
requirements. The six applications were then forwarded by OHC to the
Selecting Official (SO). Because SO had only been with the agency for
six weeks, the agency had a Human Capital Specialist (HCS) sit in on the
interviews. HCS provided SO with a set of core elements for the position
to assist him with structuring interview questions.
SO stated that he used the core elements provided to create a list
of questions to ask each candidate. HCS confirmed that all candidates
received the same questions during the interview process. SO further
stated that all candidates possessed the basic knowledge and skills
required to do the job; therefore, the interview process was used
to determine who was the best qualified by assessing character,
decision-making abilities, integrity, communication abilities,
and leadership skills. SO noted that he considered leadership and
communication abilities more important than scholastic attainment for
successfully performing in the position, where the candidate would need
to be able to both communicate and lead others. The Approving Official
(AO) stated that credentials only served to qualify a candidate for the
position, but had no impact on the selection process.
After interviewing the candidates, a female selectee (SE) was chosen,
and SO met with AO to discuss the reasons behind his selection. SO
alleged that he selected SE because her interview performance "was vastly
superior to that of the other candidates." AO stated that, based on SO's
justifications, he approved the selection.
Complainant alleged that on May 25, 2007, he became aware that SE,
a younger female, was selected for the position. Complainant further
alleged that he was better qualified than SE by virtue of his education
and experience. Complainant stated that he was better qualified because
he had attained a Master's Degree in Criminal Justice, a Bachelor's
Degree in Social Science, was a certified paralegal, and had served as
a Commander/Major for the Maryland State Department of Corrections.
Complainant further stated that SE suffered from "poor performance
and attendance" prior to the selection. Complainant asserted that he
interviewed well, but felt that the questions asked during the process
were "simple minded" and "ridiculous" in that they were somewhat relevant
to the position, but were generalized and should have been more specific
to the Government Printing Office.
In contrast, SO countered that complainant's answers to the interview
questions were "short and ... lacking in detail." SO noted that the
questions were relevant to the position in the qualities that they
focused on, and that SE's responses "demonstrate[d] the persona of an
experienced law enforcement officer whose thoughts and ideas derive from
deep, careful, mature and responsible thinking." SO asserted that he
believed complainant relied too heavily on his credentials rather than
citing relevant work experience and his interview did not convey that
he was a superior candidate. Also, SO stated that although SE had run
out of leave and was on Leave Without Pay (LWOP) prior to selection,
this was a medically-documented absence which was cleared by OHC, and
was not a factor in her being a qualified candidate.
On August 9, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of sex (male) and age (59 years
old) when he was not selected for the position of Supervisory Police
Officer, Uniformed Police Branch (UPB), PG-0083-07, advertised by the
agency under Vacancy Announcement Number 07-115.
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 August 26, 2008 motion for summary
judgment and issued a decision without a hearing in favor of the agency
on December 31, 2008.
In her decision, the AJ found that complainant did not establish that
the agency's legitimate, non-discriminatory reasons for his nonselection
were pretext for discrimination. The AJ found that complainant failed to
demonstrate how his qualifications were demonstrably superior to those
of SE. On January 13, 2009, the agency issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
ANALYSIS AND FINDINGS
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).
After a careful review of the record we find that the AJ's issuance of a
decision without a hearing was appropriate. The record has been adequately
developed, complainant was given notice of the agency's motion to issue
a decision without a hearing, and he was given a comprehensive statement
of the undisputed facts. Complainant was also given an opportunity to
respond to the motion, and failed to do so. Further, even if we assume
all facts in favor of complainant, a reasonable fact-finder could not
find in complainant's favor, as explained below. Therefore, no genuine
issues of material fact exist, and the AJ's grant of summary judgment
was appropriate.
Complainant alleges that he was discriminated against on the bases of
sex and age when he was not selected for the position of Supervisory
Police Officer, PG-0083-07. A claim of disparate treatment is examined
under the three-party analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail,
he must first establish a prima facie of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. See McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the
Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we will assume,
without so finding, that complainant established his prima facie cases
of sex and age discrimination.
The agency articulated legitimate, non-discriminatory reasons for
its actions. SO asserted that his consideration of leadership and
communication abilities was more important than scholastic attainment
because the candidate would need to be able to both communicate and lead
others in order to successfully perform in the position. SO stated that
his selection of SE was based solely on her interview performance, which
he deemed superior to the other candidates' interviews. HCS also noted
that SE's performance appeared to exceed that of the other interviews
she witnessed.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, non-discriminatory reasons
were pretext for discrimination. At the time of the selection, both SE
and complainant had served as Corporal Lead Officers with the agency for
more than five years. However, complainant failed to provide evidence
to establish that his qualifications were demonstrably superior to those
of SE. Complainant argued that the interview questions were irrelevant to
the position for which he applied. However, the agency stated that the
questions were based on a need to assess characteristics specific to the
position. We note that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Here, there is nothing in the record that would suggest that the agency's
method of using the interview process to differentiate between candidates
who appeared equally-qualified was discriminatory. Therefore, we find
that complainant failed to establish by a preponderance of the evidence
that the agency's legitimate, non-discriminatory reasons were pretext
for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order, because a preponderance of the evidence in the record does
not establish that discrimination occurred as alleged.
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
July 10, 2009
Date
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0120091385
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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