01a60612_r
05-24-2006
Daniel J. Erwin, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Daniel J. Erwin v. Department of the Navy
01A60612
May 24, 2006
.
Daniel J. Erwin,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A60612
Agency No. 03-69218-014
Hearing No. 340-2005-00185X
DECISION
Complainant filed an appeal with this Commission from the September 22,
2005 agency decision which implemented the August 2, 2005 decision of
an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the
bases of age (D.O.B. December 6, 1947) and in reprisal for prior EEO
activity when:
1. On May 21, 2003, the agency cancelled a vacancy announcement for
the position of Supervisory Arts and Information Specialist, GS-1001
for which complainant had applied.
2. On May 27, 2003, the agency notified complainant that he was not
being considered for the position of Supervisory Technical Editor/Head
of Most Effective Organization (MEO), GS-1083.<1>
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment).
Regarding claim 1, the AJ found that complainant failed to establish a
prima facie case of age discrimination. The AJ found that complainant
was over the age of 40 at the time of the nonselection, applied for
and was qualified for the position, and was not selected. The AJ also
found, however, no one was selected because the vacancy announcement
was cancelled.
Regarding claim 2, the AJ found that complainant also failed to establish
a prima facie case of age discrimination. The AJ found that complainant
failed to show that he was similarly situated to the selectee, noting
that it was undisputed that the selectee was placed into the position
pursuant to reduction-in-force procedures and criteria established by 5
C.F.R. Part 351. The AJ further noted that complainant had not proffered
any evidence establishing that placing the selectee in the position was
not consistent with reduction-in-force procedures.
Regarding the reprisal issue as to claims 1 and 2, the AJ found that
complainant failed to establish a prima facie case of reprisal. The AJ
found that complainant had engaged in EEO activity in 1993/1994 and filed
an EEO complaint in 1995 which was settled. The AJ noted that even if
Person A, then the Division Director of Information Technology Division,
knew of complainant's 1993/1994 complaint, complainant had not proffered
any evidence from which it could be inferred that there was a causal
connection between complainant's protected activity and the vacancy
cancellation and nonselection. The AJ noted that the period between
complainant's EEO activity and the cancellation and the nonselection was
so lengthy that no causal connection could be inferred. The AJ also
noted that regarding the cancellation, all applicants were deprived
of the opportunity to be selected and considered for the position.
Regarding his nonselection, the AJ stated that complainant had not
proffered evidence which established that he was similarly situated
to the selectee. He noted that the selectee obtained the position
through a reduction-in-force rather than through a competitive selection
process and that complainant proffered no evidence to show that proper
reduction-in-force criteria was not applied when it determined who would
fill the position of Supervisory Technical Editor/Head position.
The AJ also concluded that even assuming that complainant established
a prima facie case of age and reprisal discrimination, the agency
established legitimate, nondiscriminatory reasons for its actions.
Regarding claim 1, the AJ noted that the agency stated that vacancy
announcement was cancelled because the specific position was no
longer needed as a result of there being fewer subordinate employees
to supervise in the Engineering Service Center 73 (Visual Media) as a
result of changes made pursuant to the Competitive Analysis Study and the
Most Effective Organization reorganization. Regarding claim 2, the AJ
noted that complainant was not considered for the position because the
selectee was placed into the position as a result of the agency's Human
Resources Service Center using reduction-in-force procedures to fill
that and other positions to avoid separating employees from the agency
using the Competitive Analysis Study. The AJ noted that complainant
had not provided any evidence to counter the agency's evidence as to
the cancellation of the vacancy or its application of reduction-in-force
criteria.
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. See 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.
Generally, a complainant can establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. In order to establish a prima
facie case of age discrimination, complainant must show that complainant
was over 40 years of age, that complainant was subjected to an adverse
employment action and that complainant was treated less favorably
than other similarly situated employees younger than complainant.
See Reeves v. Sanderson Plumbing Prods., Inc. 530. U.S. 133, 142 (2000).
Complainant can establish a prima facie case of reprisal discrimination
by showing that: (1) complainant engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
complainant was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). 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 the complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. See U.S. Postal Service Bd. Of Governors v. Aikens,
460 U.S. 711, 713-714 (1983).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Assuming without deciding that complainant established a prima
facie case of age and reprisal discrimination, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Complainant failed to show that the agency's reasons for its actions
in cancelling the vacancy announcement and selecting the selectee were
mere pretext to hide unlawful discrimination. Construing the evidence
to be most favorable to complainant, complainant failed to establish
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class of age or in reprisal for prior
EEO activity.
The agency's finding of no discrimination is AFFIRMED.
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
May 24, 2006
__________________
Date
1The record reveals that the complaint
originally consisted of nine allegations. The agency issued a partial
dismissal in this matter, dismissing five claims on the grounds that
complainant failed to contact an EEO Counselor in a timely manner and
accepted three issues. The record also reveals that complainant later
withdrew one of the accepted issues, i.e., retaliation since 1997,
when complainant's position description was not changed to reflect his
current duties. In an Order, dated April 14, 2005, the AJ notified
the parties, after notice to file written objections to the dismissal
and after having received no response from complainant, that the five
issues remained dismissed and that, a sixth issue, the �mixed case�
issue would not be processed as part of the EEO complaint since it was
previously processed as a �mixed case� complaint issue without a right
to a hearing before an EEOC AJ. Thus, only issues 1 and 2 as set forth
in this decision are at issue in the instant appeal.