01A23754
12-10-2003
Surjit Singh, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Surjit Singh v. Small Business Administration
01A23754
December 10, 2003
.
Surjit Singh,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A23754
Agency No. 02-99-012
Hearing No. 100-AO-7298X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Computer Specialist, GS-13, in
the Office of Resource Management, Washington D.C. facility, filed a
formal EEO complaint on February 10, 1999, alleging that the agency had
discriminated against him on the bases of race (Asian-American), religion
(Sikh), age (D.O.B. 9/10/32), and in reprisal for prior EEO activity when
he was not selected for two Computer Specialist positions advertised under
Vacancy Announcement Nos. 98-180-WB and 98-182-WB. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and that whether complainant established a prima
facie case was irrelevant. The AJ found that for each of the selections at
issue they were seeking candidates who had experience in directing teams
in the development of a new client server and or a web-based systems and
or maintenance of those types of systems. The AJ further found that the
selected candidates had the requisite experience in these areas and that
complainant did not. The AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination/retaliation. In reaching this conclusion,
the AJ found that complainant failed to proffer any evidence that he
had the requisite experience for the positions at issue or that the
selectees did not. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final order.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting them, under a de
novo standard of review. 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 for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (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 of whether intentional discrimination occurred,
and on the legal issue of whether any federal discrimination employment
statute was violated. See id. at 9-15.
ANALYSIS AND FINDINGS
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 only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, and AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate, as no genuine
dispute of material fact exists. Specifically, we note that the agency
established legitimate non-discriminatory reasons for complainant's
non-selection. The record establishes that they were seeking �somebody
who directed or had experience with a team of individuals directing some
of the new web based applications, client server systems or was directing
a team that was doing a five based application.� The record also reveals
that the selectees had the requisite experience in these areas and that
complainant did not. We further note that complainant did not dispute any
of the agency's reasons for his non-selection. While complainant argued
that he had more years of experience than the selectees, complainant did
not rebut that he had the specific requisite experience that they were
looking for or that the selectees did not have the requisite experience.
We conclude that complainant has not �set forth specific facts showing
that there is a genuine issue for trial.� Fed. R. Civ. P. 56 (e).
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. Therefore, for the foregoing reasons, we affirm the
agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 10, 2003
__________________
Date