0120091743
04-16-2010
Leotis Price, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Leotis Price,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120091743
Hearing No. 450-2007-00242X
Agency No. AAFES07083
DECISION
Complainant filed an appeal from the agency's February 10, 2009 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a Procurement Assistant (hourly pay plan position) at the agency's Dallas, Texas facility.
Complainant filed a formal EEO complaint alleging that he was discriminated against on the bases of race (black), sex (male),1 and age (approximately 55 years old at the time of the alleged incidents).
By letter dated August 30, 2007, the agency accepted the following claims for investigation:
1) on or about April 23, 2007, complainant was not selected for AAFES-2006-10758, Buyer College Trainee (eight positions);
2). on or about July 7, 2007, complainant was not selected for AAFES-2006-17490 Buyer I Supervisor (2 positions);
3) on or about July 31, 2007, complainant was not selected for AFFES-2007-18483, Administrative Technician; and
4) on or about August 8, 2007, complainant was not selected for JVA C1-00956-2007, Marketing Assistant.2
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
Over the complainant's objections, the AJ assigned to the case granted the agency's November 7, 2008 motion for a decision without a hearing and issued a decision without a hearing on December 10, 2008. The AJ found that complainant failed to establish a prima facie case of discrimination. The AJ further found that the agency articulated legitimate, nondiscriminatory reasons for complainant's nonselections which complainant failed to establish were pretext for discrimination.
The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant does not make any arguments on appeal.
The agency requests that we affirm its final order implementing the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an agency's final action shall be based on a de novo review . . ."); see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
Upon review of the record, we find that the AJ properly issued a decision, without a hearing, because there is no genuine issue of material fact in dispute.
Assuming arguendo that complainant established a prima facie case of discrimination, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), the Buyer College Trainee position, the record contains a Declaration Under Penalty of Perjury from a Recruiter (R1). Therein, R1 asserts that complainant did not meet the job requirements for the position. Specifically, R1 asserts that the position required a GPA of 3.0 and complainant did not possess the minimum GPA requirement. The record contains a copy of complainant's transcript indicating that his GPA was under 3.0. Regarding claim (2), the Buyer I Supervisor position, the record contains a Declaration Under Penalty of Perjury from a Career Manager (CM). Therein, CM asserts that "our procedure identifies internal qualified management employees in pay grade 3A and above for referral prior to the referral of hourly pay plan employees." Regarding claim (3), the Administrative Technician position, the record contains a Declaration Under Penalty of Perjury from a Human Resources Generalist (HR1). Therein, HR1 asserts that complainant did not apply for the position. Regarding claim (4), the Marketing Assistant position, CM, in her Declaration under Penalty of Perjury asserts that complainant did not apply for the position.
Complainant did not establish that the agency's articulated reasons were pretext for discrimination. Complainant raises some arguments below in an effort to establish pretext. However, we find that the AJ properly addressed these arguments in his decision. For example, complainant submitted a copy of an email which he asserted indicated that he applied for the Administrative Technician position, the AJ stated "the document provided is not for a specified position and is on a form that it used for applications for higher graded positions."
CONCLUSION
Based on a thorough review of the record, we AFFIRM the agency's final order implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 16, 2010
Date
1 The record reflects that subsequent to filing his formal complaint, complainant added the basis of sex.
2 The record reflects that the agency dismissed other claims on procedural grounds; however, complainant does not expressly contest their dismissal on appeal; thus, we decline to address them herein.
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0120091743
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091743