01a54934
03-15-2006
Vickie L. Hoffner, Complainant, v. Gale A. Norton, Secretary, Department of Interior, Agency.
Vickie L. Hoffner v. Department of Interior
01A54934
March 15, 2006
.
Vickie L. Hoffner,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of Interior,
Agency.
Appeal No. 01A54934
Agency No. LLM-04-019
Hearing No. 380-2004-00215X
DECISION
Complainant filed a formal EEO complaint in which she claimed that the
agency discriminated against her on the basis of her age (52) when her
application for the position of Land Law Examiner, GS-9, was not referred
to the selecting official even though she had been rated as qualified
for the position.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. Without holding a hearing, the AJ issued a decision finding
no age discrimination. The AJ found that the agency set forth legitimate,
nondiscriminatory reasons for complainant's non-referral. The agency
stated that complainant was not among the eleven applicants referred
to the selecting official on the GS-9 certificate because complainant
received a rating of 81 and only those with a rating of 91 or above
were on the referral list. An official with the agency's Office of
Human Resource Management stated that applicants were assessed a raw
score based upon their responses to six Knowledge, Skills and Abilities
questions. According to this official, complainant failed to provide
specific information demonstrating how her written communication skills
would be directly applicable to the position. The official noted that
this KSA question specifically requested the applicant to �describe
his or her experience and/or education which demonstrates an ability to
prepare written adjudication decisions and other documents in which the
applicant must analyze facts and apply laws in order to make decisions
or recommendations.� Complainant's response to this question noted that
she was involved in publishing and editing weekly newsletters and that
she had attended and completed workshops on grammar.
The record reveals that no applicants on the GS-9 certificate were
selected for the position, but three positions were filled by the
selecting official utilizing the GS-11 certificate. The ages of the
selectees were 44, 53 and 58. The AJ observed that the 44-year old
selectee responded to the aforementioned KSA question setting forth
specific examples of prior experience in writing legal memoranda,
conducting legal research, and authoring and editing New York Law
School's Journal for International and Comparative Law. The AJ further
observed that the 44-year old selectee is an attorney with over ten
years experience, a former judicial intern to a U.S. Magistrate and a
Judge on the New York State Supreme Court, who has written extensively
in her professional and academic life. The AJ noted that complainant
is not an attorney and her work experience consists of positions as a
legal assistant, procurement clerk, miscellaneous documents examiner
and computer operator. The AJ found that complainant failed to
proffer any evidence to establish that she was better qualified than
the eleven applicants who were included on the referral list. The AJ
found that complainant failed to show that the agency's legitimate,
nondiscriminatory reasons were pretextual and that age discrimination
was the true reason why she was not included on the GS-9 certificate for
the Land Law Examiner position. On June 13, 2005, the agency issued a
final order adopting 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
With respect to complainant not being included on the referral list
for the position at issue, we shall assume arguendo that complainant
set forth a prima facie case of age discrimination. The agency stated
that complainant was not referred to the selecting official for the
Land Law Examiner position based on her application receiving only a
rating score of 81, whereas only those applicants with a rating of 91
or above were on the referral list. The agency stated that complainant
only scored 81 points because her responses to the KSA questions failed
to describe how her experiences related to the position. We find that
the agency articulated legitimate, nondiscriminatory reasons for not
referring complainant.
Complainant claims that she deserved to be referred based on her having
over 25 years of experience in administrative, medical and legal office
fields. Complainant further claims that she should have been referred
in light of the fact that she was included on a referral list for a
similar position in the past. However, complainant failed to establish
that her ability and experience are more than minimally applicable
to the Land Law Examiner position. Complainant did not demonstrate
that her experience in written communications was sufficient for this
position in terms of complexity, scope and level of responsibility.
Complainant also has not shown that she was better qualified than
any of the eleven applicants who were included on the referral list.
We find that complainant has not refuted the agency's position that the
relative weakness of her application was the reason for her non-referral.
We find that complainant has not established that the agency's stated
reasons were pretext intended to mask discriminatory motivation.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final order
finding no discrimination as a preponderance of the record evidence does
not establish that age discrimination occurred.
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
March 15, 2006
__________________
Date