01a43332
02-25-2005
Gary D. Lewis, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Gary D. Lewis v. Department of the Navy
01A43332
February 25, 2005
.
Gary D. Lewis,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A43332
Agency No. DON (MC) 01-00264-011
Hearing No. 100-A2-7973X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Heavy Motor Vehicle Operator,
WG-5703-7, at the agency's Quantico, Virginia facility, filed a
formal EEO complaint on September 27, 2001, alleging that the agency
discriminated against him on the basis of race (African-American) when
he was not selected for the position of Tractor Operator, WG-5705-7.
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 adopted the agency's statement of facts in its entirety, as
well as its analysis of the law. The AJ found the agency articulated
a legitimate, nondiscriminatory reason for its action. Specifically,
the agency stated that complainant was not selected because he had been
suspended for seven days for a physical altercation with a coworker
involving the use of a knife. The AJ concluded that complainant had been
unable to submit any evidence to support his claim of discrimination.
The agency's final order implemented the AJ's decision. Neither
complainant nor the agency make any contentions on appeal.
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 in dispute. 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. Chelates v. Citrate,
477 U.S. 317, 322-23 (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. Only disputes over facts
that might affect the outcome of the suit under the governing law will
properly preclude entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
If a case can only be resolved by weighing conflicting evidence, the
issuance of a decision without a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly issuing a
decision without a hearing only upon a determination that the record
has been adequately developed for summary disposition.
The record reveals that complainant applied for the Tractor Operator
position on May 29, 2001. The agency rated the complainant as qualified
and placed him on the certificate of eligibles. The record demonstrates
that there were ten applicants for the position of which nine were
qualified. Of the ten applicants, seven were black, two were white and
the race of one was unknown. The agency selected five applicants: three
blacks and two whites (one of the white employees declined the position).
The selecting official stated in his affidavit that he did not select
complainant because complainant had engaged in disruptive and violent
behavior in a different branch and the selectees did not have behavior
problems. He further stated that he did not want that type of behavior
in his branch. In his affidavit, complainant contended that he was more
qualified than the black selectees, and they were selected because they
lived in the selecting official's neighborhood.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
See Washington v. Department of the Navy, EEC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aiken, 460 U.S. 711, 714-717 (1983).
Here, we find that the AJ correctly found that the agency articulated a
legitimate, nondiscriminatory reason for its action. Specifically, the
selecting official stated that complainant was not hired for the position
because of his suspension for violent behavior. Further, the selecting
official stated that he did not want that type of behavior in his branch.
While complainant contends that he is more qualified than the selectees,
he has not alleged or submitted any evidence demonstrating that any of
the selectees, outside of his protected class, had ever been suspended
for violent behavior in the past or engaged in violent behavior.
Construing the evidence in a light most favorable to complainant,
we find that complainant has failed to present evidence from which
a reasonable fact-finder could conclude that the agency's action was
motivated by discriminatory animus toward complainant's protected class.
Accordingly, the agency's final order implementing the AJ's decision
was proper and is AFFIRMED for the reasons set forth herein.
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 25, 2005
__________________
Date