01A32182_r
02-26-2004
Darlene Curtis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Darlene Curtis v. Department of Veterans Affairs
01A32182
February 26, 2004
Darlene Curtis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32182
Agency No. 2004-0658-2001107630
Hearing No. 120-2002-01418X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her 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.
The record reveals that complainant, a Health Aide, GS-3, at the
agency's VA Medical Center in Salem, Virginia, filed a formal EEO
complaint on September 12, 2001, alleging that the agency discriminated
against her on the bases of race (African-American) and sex (female)
when on July 16, 2001, she was not selected for the position of GS-4
Mail Clerk/Reproduction.
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 complainant established a prima facie case of
race and sex discrimination because the selectee, not in complainant's
protected class, was selected for the Mail Clerk/Reproduction position.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for complainant's non-selection. 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.
The AJ found that nine candidates were identified as being qualified for
the Mail Clerk/Reproduction position. The AJ found that there was a
three-member selection panel and that each member independently reviewed
and scored the interviews of the nine candidates, including complainant,
by using a �Performance-based interviewing� method. The AJ found that
in an agency brochure, the �Performance-based interviewing� method is
described as a method �that uses interviewing techniques to ask job
applicants questions about the knowledge, skills, abilities, attitudes,
and experience...they have that are important for them to do a good job.�
The AJ found that the selectee for the Mail Clerk/Reproduction position,
received the highest score of 62.67 points of all nine candidates, while
complainant received the lowest score of 48.67 points. With respect
to complainant's claim that the three-member selection panel failed
to record their scores for their ratings, and that two members were
unaware of who scored the highest points, the AJ found that interviewing
panels are generally not charged with totaling the ratings or scores
of the candidates under consideration. The AJ noted that it was the
selecting official's decision to select the selectee after receiving the
three-member selection panel's interview scoring of the nine candidates.
Furthermore, the AJ found no evidence to support complainant's contentions
that the selectee's wife was the selecting official's secretary; and that
selectee's race and/or sex was the motivating reason for the selecting
official's decision to select the selectee for the Mail Clerk/Reproduction
position.<1>
The agency's final order implemented 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, 322-323 (1986); Oliver
v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome
of a 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.
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. Moreover, we determine 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.
Accordingly, the agency's final order implementing the AJ's decision
was proper and 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
February 26, 2004
__________________
Date
1The record reflects that in her affidavit, the selecting official stated
that selectee's wife is a Supply Technician in a different section of
the Facility Management Service, not her secretary.