0120103778
07-25-2012
Ellen Chesley, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Ellen Chesley,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120103778
Hearing No. 570-2010-00348X
Agency No. ED-2009-22-00
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 9, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Vocational Rehabilitation Program Specialist, GS-13, at the Agency's Training Programs Unit (TPU), Rehabilitation Services Administration (RSA), Office of Special Education and Rehabilitation Services (OSERS) in Washington D.C. Complainant has worked in the Training Programs Unit since 1989.
On April 16, 2009, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when:
1. On November 11, 2008, she received a "Fully Successful" rating under the Education Department Performance Appraisal System (EDPAS) for the period of October 1, 2007 through September 30, 2008. As a result of this rating, Complainant asserted that she was ineligible to receive a cash award.
2. On November 24, 2008, she was not selected for a Rehabilitation Specialist position, GS-301-14, advertised under Vacancy Announcement No. OSERS-2008-0056/58.
3. On December 18, 2008, the Rehabilitation Specialist position, GS-301-14, was re-announced under Vacancy Announcement No. OSERS-2009-0006, in order to promote another employee, who had been ineligible for promotion under Vacancy Announcement No. OSERS-2008-0056/58.
The Agency accepted the complaint and conducted an investigation. The investigation revealed the following facts:
In January 2008, a new Chief ("TPU Chief") (Caucasian) was appointed to the Training Programs Unit and became Complainant's first-line supervisor.
Agency employees working under the General Schedule are provided annual performance appraisals under the EDPAS rating system that provides for five achievement levels to rate employee work performance: Outstanding, Highly Successful, Fully Successful, Minimally Successful and Unacceptable. The TPU Chief issued Complainant her performance rating of Fully Successful for the period of October 1, 2007 through September 30, 2008. For the five years prior to this rating period, before the TPU Chief became her supervisor, Complainant had received an EDPAS rating of Highly Successful. The TPU Chief supervised four GS-13 employees, including Complainant. Of the four GS-13s, the TPU Chief rated the three African American employees as Fully Successful and rated the one Caucasian employee as Outstanding.
On August 1, 2008, the Agency issued Vacancy Announcement No. OSEDRS-2008-0056/58 seeking applicants for two GS-14 vacancies in the Training Programs Unit. The TPU Chief was the selecting official and she appointed three individuals (all Caucasian) to serve with her on an interview panel for the position. Complainant submitted a timely application in response to the vacancy announcement and was among the candidates interviewed. According to the panel, each of the candidates was asked the same questions. Following the interviews, each of the panel members prepared summaries of the interviews and made recommendations for who should be selected. None of these summaries, or copies of the interview questions and responses, have been retained as part of the record in this case. According to the TPU Chief, the candidate unanimously chosen as the first-choice of the panel was selected for one of the vacant positions (Selectee 1) (Caucasian). After choosing Selectee 1, the TPU Chief elected not to fill the second vacancy because her preferred choice (Asian) could not be selected. According to the TPU Chief, she could not select her second choice because veterans preference rules would have required her to select a named candidate who she did not believe was as qualified.1
Instead, on December 4, 2008, the second vacancy was re-announced under Vacancy No. OSERS-2009-0006. After Complainant learned about this, she complained about the selection process and the TPU Chief was replaced as the selecting official for VA OSERS-2009-0006. The new selecting official was the Acting Director of the Training and Services Program Division within RSA (TSP Director) (Caucasian). The TSP Director convened another interview panel that included himself and two other individuals (one African American and one Hispanic). Following the interviews, which included an interview with Complainant, another candidate (Selectee 2) (Asian) was selected. Selectee 2 was the same individual as the one preferred by the TPU Chief in the first selection process who was not eligible for selection at that time. He apparently was now eligible for selection.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 21, 2010, the Agency filed a motion for summary judgment.
On August 18, 2010, the AJ granted the motion and issued a decision by summary judgment in favor of the Agency. The AJ determined that the responsible management officials had articulated legitimate, non-discriminatory reasons for the decisions made that Complainant failed to prove were pretext for race discrimination.
Regarding the performance rating, the AJ found that the text of the disputed performance appraisal, in conjunction with the statements provided by the TPU Chief during the investigation, provide a detailed explanation of the assessment made of Complainant's work performance. The AJ also noted that the TPU Chief stated that she did not rate Complainant's performance above the Fully Successful level based in part on Complainant's failure to check in with the TPU Chief and offer assistance with sufficient frequency during the rating period. The TPU Chief stated that she had advised Complainant, during in interim review of her work, to improve her performance in this area.
Regarding the selection decision under Vacancy Announcement No. OSERS-2008-0056/58, the TPU Chief stated that she did not select Complainant for either of the vacancies because Selectee 1 (and the other candidate she wanted to select but could not) showed significantly stronger qualifications in the areas of "performance monitoring and evaluation skills" and "training methods and models." The AJ found that the statements of the other panel members revealed that they shared the TPU Chief's assessment of the candidates' relative qualifications. The TPU Chief conceded that after she learned that her other preferred candidate was not eligible for selection, she then arranged to have the second vacancy re-announced under Vacancy Announcement No. OSERS-2009-0006, which gave him the opportunity to become eligible. She stated, however, that she did this because she believed he was the best qualified candidate.
With regard to the selection decision under Vacancy Announcement No. OSERS-2009-0006, the selecting official for that selection, the TSP Director, stated that Selectee 2 was deemed the most qualified applicant by himself and his panel members based on the following considerations: (1) Selectee 2's experience with state-level rehabilitation programs; (2) his analytical focus; and (3) his ability to speak in an articulate manner on the topics of learning theory, training philosophies, and their applications to public vocational rehabilitation agencies.
The AJ went on to find that Complainant did not prove, by a preponderance of the evidence, that the reasponsible Agency officials' proffered reasons for the disputed actions were a pretext for race discrimination.
On September 9, 2010, the Agency issued its final order fully implementing the AJ's decision.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from an Agency's decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). 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. 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 does not sit as a fact finder. Id. 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. A disputed 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. Catreet, 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, a hearing is required. 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. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Department of Justice, EEOC Request No. 05940339 (February 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United States Postal Service, EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States Postal Service, EEOC Request No. 05940578 (April 23, 1995). The hearing process is intended to be an extension of the investigative process, designed to "ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEOC Management Directive (MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. � 1614.109(d) and (e).
As an initial matter, we note that in her brief submitted on appeal, Complainant does not raise any challenge to the AJ's finding of no discrimination with regard to her claim concerning her performance appraisal. Therefore, we will exercise our discretion not address this claim any further and will leave the AJ's conclusion that no discrimination was proven undisturbed. See EEO Management Directive (MD)-110, Chapter 9, Section IV.A (Nov. 9, 1999).
However, after careful review of the record on the non-selection claims, we find that there remain material facts in dispute that require resolution at a hearing. The dispositive issue of whether or not Complainant was better qualified than the two selectees remains a matter of considerable dispute. The responsible Agency officials state that they determined the selectees to be the best qualified candidates following their interviews before the panel. Complainant disputes that claim, and asserts she had far superior qualifications for the positions in question. Complainant correctly points to the fact that there are "no copies of interview questions, answers, or panelist notes in the record" for either of the two vacancies. As such, Complainant argues that there is no evidence to support the conclusion that she was not better qualified than the selectees. Complainant also argues that relevant portions of Selectee 1's application are also missing from the record - the part which would show how Selectee 1's experience in another agency related to a position at OSERS.
Complainant further argues that Selectee 1 lacked program knowledge for the subject position. In support of her claim, Complainant asserts that, after her selection, a contractor was hired to help Selectee 1 with evaluation and performance improvement.
Complainant raises questions about whether certain criteria proffered by the selecting officials as deficiencies in Complainant's skills - such as data analysis and evaluation - were really required by the position or were simply manufactured reasons not to justify not selecting Complainant.
Complainant argues that Selectee 2, an Asian American male, was not eligible during the first selection process "because he held a GS-13 position for less than a year at the time of the announcement" and not because of veterans preference rules, as articulated by the selecting official. Complainant questions how Selectee 2 was allegedly ranked higher than her when he was not even eligible for the position due to lack of required time at the GS-13 level. Complainant asserts that even assuming she was ranked third by the panel,2 she should have been given the second position in the first selection process once Selectee 2 was found ineligible.
Finally, Complainant also asserts that other African American employees who worked with the TPU Chief can testify that she did not get along well with African Americans. Complainant argues that this is evidence adds to a conclusion that racial animus played a part in the decisions made in the disputed non-selections.
We find that these issues were resolved by the AJ by weighing conflicting evidence and making credibility determinations in a manner not appropriate for summary judgment. In summary, we find that there remain genuine issues of material fact which are not appropriate for a summary judgment regarding the non-selection claims. Instead, a hearing is necessary to adequately address the issues of witness credibility and to adjudicate those issues of material fact which remain in dispute.
Accordingly, we AFFIRM the Agency's finding of no discrimination concerning the performance appraisal claim. We REVERSE the Agency's finding of no discrimination concerning the non-selection claims, and REMAND these claims to the Agency for further processing in accordance with the Order below.
ORDER
The Agency shall submit a request for a hearing on the non-selection claims, as well as the complaint file, to the Hearings Unit of the EEOC's Washington Field Office, within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Washington Field Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 25, 2012
__________________
Date
1 Complainant offers a different explanation for why the TPU Chief's preferred candidate could not be selected. She alleges he was not eligible for selection because he had held his GS-13 position for less than one year at the time of the announcement.
2 In the Agency's motion for summary judgment, it states that all the panel members in the first selection process ranked Complainant at least third other than the TPU Chief who allegedly ranked her fourth.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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