0120131568
09-02-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120131568
Hearing No. 550-2012-00386X
Agency No. DC-11-0049
DECISION
On March 19, 2013, Complainant prematurely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 20, 2013, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal was pending when the Agency issued its FAD, thus perfecting the appeal. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency. She previously worked for the Agency as a Quality Assurance Specialist - Aerospace, GS-11, and separated from the Agency in July 2007.
On October 9, 2013, Complainant filed an EEO complaint alleging, in relevant part, she was discriminated against her based on her disability (broken leg and ankle), age (69), genetic information (a reference to her age) and reprisal (prior EEO complaints) when:
1. in June 2011, she was not referred for consideration to the position of Contract Administrator, GS-12, located in the Agency's Operations Directorate, Western Regional Command in Lathrop, California, advertised under vacancy announcement SWH811P8447040AR;
2. in July 2011, she was not selected for the position of Quality Assurance Specialist, GS-12, located in Santa Clara County, California, advertised under vacancy announcement SWH811P4027992.
Prior to the Agency completing the investigation, Complainant prematurely requested a hearing before an Employment Opportunity Commission Administrative Judge (AJ). After the Agency provided Complainant with a copy of the completed report of investigation, an EEOC AJ granted the Agency's unopposed motion for summary judgment, and found no discrimination. The Agency adopted this decision.
On issue 1, the AJ found that an Agency Human Resources Specialist did not refer Complainant for consideration because she determined Complainant's application failed to show she had the required specialized experience of negotiating techniques during pre and post award and with price and cost analysis, and nothing in the record contradicted this. The Human Resources Specialist did not know Complainant, and was not aware of her impairments or that she filed prior EEO complaints.
On issue 2, Complainant was found qualified, but did not make the list of the 12 applicants the rating/interview panel invited to interview. Complainant was not interviewed by the panel nor referred to the selecting official - she ranked 14th. The AJ referenced the statement of lead panel member, to whom the selectee would report, that Complainant's application was poorly written and confusing. For example, the lead panel member wrote Complainant indicated she worked outside the government and was a GS-12. The AJ found it was undisputed that in her application Complainant wrote she did volunteer work with a pay grade equivalent to GS-12 "[if paid," for the last five years]. The AJ also referenced the lead panel member's statement that Complainant had not worked for the Agency in five years. He elaborated that the selectee's background was close to perfect for the job -- he was very familiar with current agency quality assurance policy, had a broad knowledge of different hardware products, had extensive training in electronics, mechanical inspections, and aircraft inspections, and was certified at the proper level. The lead panel member stated that although Complainant was trained in a number of things similar to the selectee, she had not actually worked in those areas, and her job experience was not what the job opportunity required. The selectee was around age 62.
The AJ found that the undisputed evidence was that the Agency viewed Complainant's application as poorly written and confusing, and her Agency work experience, as compared to the selectee was not recent, and these were legitimate, nondiscriminatory reasons for her not being hired for the Quality Assurance position.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We find, for the same reasons as the AJ, that Complainant failed to prove discrimination. She did not show that the Agency's explanations were pretext to mask discrimination.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
September 2, 2015
__________________
Date
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