01a40691
02-24-2005
James O. Scott, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
James O. Scott v. Department of the Navy
01A40691
February 24, 2005
.
James O. Scott,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40691
Agency No. 03-00187-010
Hearing No. 120-2003-00405X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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.
The record reveals that during the relevant time, complainant was
employed as a Mechanical Engineering Technician, GS-0802-09, at the
agency's Maintenance Department, Regional Planning and Scheduling Office,
Public Works Center (PWC) in Norfolk, Virginia. Complainant sought EEO
counseling and subsequently filed a formal complaint dated November 18,
2002, alleging that he was discriminated against on the basis of race
(African-American) when: complainant was denied the opportunity to be
temporarily promoted to a Supervisory Maintenance Master Scheduler,
GS-1601-11 position, located in the Production Management Branch of the
Maintenance Department of Public Works Center.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing before an AJ on his complaint. The AJ
issued a decision without a hearing on October 21, 2003, incorporating
the agency's Motion for Summary Judgment which she found properly set
forth the law and facts. The AJ found that complainant failed to show
that race was a factor in the agency's actions.
In its October 3, 2003 Motion for Summary Judgment, the agency noted that
on October 20, 2002, Person A was temporarily promoted, non-competitively,
to the recently vacated Supervisory Maintenance Master Scheduler
position. The agency noted that Supervisor 1, complainant's former
first level supervisor, recommended Person A for the position based on
his technical skills and knowledge of the position. Supervisor 1 noted
that Person A had performed work with the computer systems on scheduling
and workload within the Planning and Estimator Scheduling Department
and had volunteered as stand-in supervisor. Supervisor 1 stated that
complainant was physically located at another site at the time of the
vacancy, had never worked in the area where the position was located,
and did not have the scheduling background required of the position.
Additionally, Supervisor 1 stated that he did not recall complainant
specifically requesting to be considered for the temporary position,
although he did recall complainant stating that he would like to be
promoted and he told complainant to apply for available positions.
The agency noted that the Selecting Official (Supervisor 2) testified that
complainant was not considered or selected for the temporary position.
Supervisor 2 stated that Person A was selected because of his experience
since he had been part of the production scheduling organization since
it began, approximately three to four years earlier. Additionally,
Supervisor 2 noted that Person A had a vast background in Win Estimator,
the program the department used and MAXIMO, the software database that
is used for all of their planning processes. Supervisor 2 noted that
Person A was familiar with all functions of the Master Scheduler Position
while complainant had not worked in the planning area; but instead had
been assigned to the Recurring Maintenance area. The agency stated
that complainant did not offer reasonable evidence that Supervisor 2's
testimony was incorrect or a pretext for discrimination.
In response to the agency's Motion for Summary Judgment, complainant
submitted an October 10, 2003 response that none of his five other
proposed witnesses were offered training or positions at the supervisory
level. In addition, he states that he has approximately twenty years
of planner and estimator experience in the same department as Person A.
Complainant states that he was transferred from the same department one
year before the Master Scheduler position was created. He states he was
subsequently told by Supervisor 1 that he was being transferred back to
that office because of his experience at the time. Complainant states
that at this time he asked if he could be considered for the position
in question and was told by Supervisor 1 that the position at that time
was not being filled. Complainant states that he made a few telephone
calls and learned that Supervisor 1 had already assigned Person A to
the position. Complainant also notes that he worked in �Planning� for
ten years and �Recurring� for five years.
On December 5, 2003, the agency issued a final order fully implementing
the AJ's decision finding no discrimination. Complainant filed the
present appeal. On appeal, complainant states that he has shown that
no other minority was asked to be considered for the position at issue.
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.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly referenced the
appropriate regulations, policies, and laws. Complainant has not shown
that he was plainly superior to the selectee for the temporary promotion.
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 class.
Accordingly, the agency's decision finding 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
February 24, 2005
__________________
Date