0120073974
11-27-2009
Roy C. Williams, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Roy C. Williams,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073974
Hearing No. 570-2006-00169X
Agency No. ARFTBELVOIR05JUN0938
DECISION
On September 17, 2007, complainant filed an appeal from the agency's
August 16, 2007 final agency decision (FAD) 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 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 the time of events giving rise to this complaint, complainant worked
as an Intelligence Analyst, GG-0132-13, at the Army Intelligence and
Security Command (INSCOM), 1st Information Operations (IO) Command,
and Army Reprogramming Analysis Team (ARAT) - Threat Analysis (TA),
located at Eglin Air Force Base, Florida.
On July 18, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Black) when:
1. on June 20, 2005, he learned that he was not selected for
vacancy announcement #WTST05502300R, Supervisory Intelligence Specialist
(Operations), GS-0132-14, with the Army Reprogramming Analysis Team
(ARAT), located at Elgin Air Force Base;
and on the bases of race (Black) and reprisal for prior protected EEO
activity under Title VII
when:
1. a member of the command team failed to send him an electronic
message inquiring about the status of a personnel action;
2. a member of his supervisory chain informed Complainant that he
would have to leave ARAT-TA if he wanted to be promoted;
3. a contractor who had been selected for the Supervisory
Intelligence Specialist position attended a meeting; and
4. that same contractor entered the ARAT-TA work spaces.
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. Subsequently, the agency filed a Motion for
Summary Judgment. When complainant did not object, the AJ assigned
to the case granted the agency's Motion in his July 24, 2007 decision
without a hearing. Specifically, the AJ found that there were no genuine
issues of material fact, and that the agency articulated a legitimate
non-discriminatory reason for its challenged action which the complainant
failed to rebut. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency's retraction and
re-posting of the vacancy announcement for the Supervisory Intelligence
Specialist (Operations), GS-0132-14, position was done to ensure that
selectee's resume and application materials were submitted and selected
for the position. Complainant asserts that the vacancy announcement
was deliberately re-posted for selectee.
In response to complainant's appeal, the agency contends that, based upon
the entire record, and complainant's post-investigative submissions,
complainant failed to present any evidence to establish a prima facie
case, and although it has put forth a legitimate non-discriminatory
reason for every action alleged by complainant, he has again failed
to offer any evidence to challenge these reasons. The agency asks the
Commission to affirm the agency's final order.
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 review of the record, we find that there are no genuine issues
of material facts or any credibility issues which required a hearing
and therefore 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, he was given an opportunity to respond to the motion, he
was given a comprehensive statement of undisputed facts, and he had
the opportunity to engage in discovery. Under these circumstances,
we find that the AJ's decision without a hearing was appropriate.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish 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 Construction
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 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Even considering the facts in the light most favorable to the complaint
and assuming, arguendo, that the complainant established a prima facie
case of race and reprisal discrimination, we find that the agency
articulated legitimate non-discriminatory reasons for not selecting
complainant for the Supervisory Intelligence Specialist (Operations),
GS-0132-14 position. The selecting officials each explained that while
complainant scored well, when assessing his experience against the
selected applicant in the areas of management and leadership, he scored
significantly lower. See ROI Tr. At 187, 285, 320. Two of the selecting
officials confirmed that it was appropriate to give more weight to the
elements related to management and leadership in the scoring matrix
for the position at issue because the primary responsibilities of the
position required the incumbent to supervise the ARAT staff and maintain
relationships with the associated programs. See AJ's Decision, Page 6
(citing ROI, Tr. at 297 and 321).
Because we find that the agency provided a legitimate, nondiscriminatory
reason for not selecting complainant for the Supervisory Intelligence
Specialist (Operations), GS-0132-14 position, to prevail, complainant
must prove, by a preponderance of the evidence, that the agency's
explanation is a pretext for discrimination. We find that complainant
failed to do so. Complainant failed to proffer any evidence to support
his contention that the agency was motivated by retaliatory animus.
Complainant's sole proffer to support his claim is his contention that the
selectee was pre-selected for the position, and this was why the agency
retracted and re-posting the vacancy announcement. Complainant argues
that management's inclusion of the selectee on one piece of electronic
correspondence along with the selectee's various visits to ARAT-TA spaces
support his contention that the selectee was aware of his pre-selection
for the position. See Appeal Attachment, Page 2. These assertions
alone are not enough to support a finding that it is more likely than not
that the agency's articulated reason was a pretext for discrimination.
Therefore, we find that the complainant failed to show by a preponderance
of the evidence that race or reprisal was a factor in his non-selection
for the position. As a result, complainant failed to establish that
the agency's explanation was a pretext for discrimination.
We note that pre-selection, per se, does not establish discrimination
under Title VII when it is based on qualifications of the selected
individual and not some basis prohibited by Title VII. See, e.g.,
McAllister v. United States Postal Service, EEOC Request No. 05931038
(July 28, 1994). Even if complainant had established that the selectee
were pre-selected, because complainant has failed to offer probative
evidence demonstrating that the agency's selection decision was based
on prohibited bases under Title VII or ADEA, we nonetheless would find
that no discrimination had occurred.
Complainant's contention that the re-post of the vacancy announcement
was deliberately run for the selectee because he was White, is without
merit. If it were the agency's intent to select a White applicant, this
option was available after compiling a list of qualified applicants
under the first posting of the vacancy announcement. Applicant 1,
a White applicant, was in the pool of qualified applicants along with
complainant, and his application was selected to be evaluated for a
place in the interview round. In light of these facts, the Commission
accepts the agency's position that the position was re-posted only as
an attempt to acquire a larger applicant pool.
Claims Two through 5
The AJ dismissed claims two through five for failure to state a claim.
Specifically, the AJ found that even if these claims were true, these
isolated events were insufficient to render complainant aggrieved because
he experienced no harm or loss to a term, condition, or privilege of
employment. Further, the AJ found that the claims also fail to rise to
the lesser threshold required for a claim of reprisal, because none of
these actions would be likely to deter a reasonable employee from filing
an EEO complaint.
The Commission has considered each of the rebuttal statements to
the dismissal of claims two through five. We find that the rebuttal
statements offered provide no additional support for the contention that,
as a result of these actions, complainant is an aggrieved individual, or
that the incidents, even if true, would be likely to deter a reasonable
employee from filing an EEO complaint. Therefore, we find that the AJ
properly dismissed claims two through five for failure to state a claim.
CONCLUSION
Based on a thorough review of the record, including all the
statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
The Administrative Judge's decision without a hearing was appropriate
and a preponderance of the record evidence viewed in the light most
favorable to the complainant 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
November 27, 2009
Date
2
0120073974
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120073974