Donald C. Hinkson, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 29, 2003
05a20691 (E.E.O.C. May. 29, 2003)

05a20691

05-29-2003

Donald C. Hinkson, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Donald C. Hinkson v. Department of the Navy

05A20691

May 29, 2003

.

Donald C. Hinkson,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Request No. 05A20691

Appeal No. 01A04225

Agency No. DON-97-00391-003

Hearing No. 170-98-8191X

DECISION ON REQUEST FOR RECONSIDERATION

Donald C. Hinkson (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Donald C. Hinkson v. Department of the Navy, EEOC Appeal

No. 01A04225 (March 27, 2002).

EEOC Regulations provide that the Commission may, in its discretion,

reconsider any previous Commission decision where the requesting party

demonstrates 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. See 29 C.F.R. � 1614.405(b).

In the previous decision, the Commission affirmed the agency's

final order, which adopted the summary judgment decision of an EEOC

Administrative Judge (AJ), finding no discrimination on the bases of race

(African American) or sex (male) regarding complainant's non-selection

for a Contract Negotiator position.

In his request for reconsideration, complainant argues, in pertinent part,

that the previous decision improperly reflected that complainant did not

submit any contentions on appeal, when, in fact, complainant filed an

appeal brief. Furthermore, complainant argues that the AJ improperly

issued a summary judgment decision in this case, because he did not

identify the critical �material facts� that were �not in dispute,�

thereby preventing complainant from filing an effective response.

Also, complainant argues that the AJ erred because �material facts�

are in dispute. Specifically, complainant argues that one disputed

material fact is whether the selecting official properly interviewed

the candidates first line supervisors, rather than the candidates

themselves, especially considering that complainant's current first

line supervisor had only supervised him for approximately three months.

Complainant also argues that another material fact in dispute is whether

the selecting official properly used the current performance appraisals

as a rating factor, which disadvantaged complainant because he did not

receive an outstanding rating from his current supervisor. Moreover,

complainant alleges that the AJ incorrectly found that the selecting

official consistently applied the selection criteria, and he failed

to correctly consider that only one black male had been promoted at

complainant's facility in the last fourteen years. Complainant contends

that the AJ improperly weighed the facts, improperly drew inferences in

favor of the agency, and claims that the AJ's findings could have been

discredited at a hearing. Complainant requests a hearing.

In response, the agency argues that none of the material facts are in

dispute, and that the AJ properly rendered a summary judgment decision in

favor of the agency. The agency argues that the documentary evidence of

record demonstrates that complainant was not the best qualified candidate

for the position. The agency asserts that this is the critical �material

fact� and that it can be readily ascertained by reviewing the selecting

official's notes and by making a comparison of the applications submitted

by complainant and those of the three selectees. The agency additionally

argues that on both appeal and in the instant request, complainant

failed to set forth arguments or evidence to show that he was better

qualified for the position than any of the three selectees, noting that

this particular �material fact� is determinative in a non-selection case.

We find that the previous decision incorrectly stated that complainant did

not submit an appeal statement. Nonetheless, after consideration of the

arguments advanced by complainant, we find no error in the determination

rendered in the previous 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.

Complainant presents no evidence to demonstrate that he was more qualified

for the position at issue as compared to the three selectees. Instead,

he argues that because the agency has purportedly failed to promote

black males at an acceptable rate, and his own application scored

poorly in the selection process at issue, his non-selection must have

been discriminatory. However, we note that merely asserting that no

black males were promoted at a certain facility for a certain number of

years, without more, is not sufficient to demonstrate discriminatory

animus or pretext in a particular case. It is well settled that in

a non-selection case, pretext may be demonstrated by showing that

complainant's qualifications are observably superior to those of the

selectee. See Bauer v. Bailor, 647 F. 2d 1037, 1048 (10th Cir.1981);

Williams v. Department of Education, EEOC Request No. 05970561 (August

6, 1998). Because complainant fails to present any evidence that his

qualifications for the position at issue were, in fact, better, let alone

�observably superior,� in any respect to those of the selectee, we find

that complainant failed to produce any evidence demonstrating pretext.

Accordingly, after a careful review of the record, with reference to the

above described legal standard, we find that the probative facts of the

case were fully developed by the documentary record, and that there were

no genuine issues of material fact in dispute. Therefore, we conclude

that the AJ's decision to issue a finding of no discrimination without

a hearing was proper.

Furthermore, based on our review of the record, in particular the

affidavit of the selecting official, as verified by his contemporaneously

made notes, we find that the same inquiries were submitted to each

supervisor and that an objective method was used to record their

responses. Furthermore, there is no evidence to suggest that the

selecting official used current performance appraisals as a selection

criteria with the goal of disadvantaging complainant, who unlike the

three selectees, did not have an �outstanding� rating. Although it is

true that a certain degree of subjectivity is involved in evaluating the

applicants' written responses to the ranking factors, absent evidence

of discriminatory animus toward complainant, the Commission will not

second guess the agency's business judgment in these matters. See

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252,

259 (1981); see also Wrenn v. Gould, 808 F.2d 493, 503 (6th Cir. 1987)

(In order to make a determination of discrimination, one must look at

the motivation of the decision maker as opposed to his business judgment).

Based on the record before us, we find no support for complainant's

claim that the selection criteria were inherently too subjective,

inconsistently applied, or developed for the sole purpose of excluding

the promotion of black males. Instead, we find that the record shows

that the selecting official objectively scored supervisor responses,

performance appraisal ratings, and written applications. Under this

scoring method, although complainant made the best qualified list, he

ranked at the bottom third and was not selected. Complainant presents

no evidence that he is better qualified than the three selectees, nor

does he present any probative evidence to demonstrate pretext.

Based on complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the

decision of the Commission to deny the request. Additionally, for the

reasons set forth above, based on our discretionary review of the record,

the decision in EEOC Appeal No. 01A04225 remains the Commission's final

decision. There is no further right of administrative appeal on the

decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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 29, 2003

__________________

Date