01a41719
05-31-2005
Owen C. Boutelle, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Owen C. Boutelle v. Department of Defense
01A41719
May 31, 2005
.
Owen C. Boutelle,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A41719
Agency No. DECAHQFO2002002
Hearing No. 120-2003-00166X
DECISION
The record indicates that complainant filed an appeal from an
EEOC Administrative Judge's decision dated October 29, 2003, which
subsequently became the agency's final action, pursuant to 29 C.F.R. �
1614.109(i), finding no discrimination with regard to his complaint.
In his complaint, dated May 3, 2002, which was later amended, complainant,
a Project Manager, GS-15, alleged discrimination based on sex (male) and
in reprisal for prior EEO activity when he was not selected for: (1) the
position of Director, Midwest Region, ES-1144, Vacancy Announcement Number
DECA 01-2; and, (2) the position of Director, Western/Pacific Region,
ES-1101, Vacancy Announcement Number DECA 02-01. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination. The agency did not issue its own final
action within the requisite time limit after the AJ's decision; thus,
the AJ's decision became the agency's final action. Complainant appeals.
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, 322-323 (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, 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.
Upon review, the Commission finds that the AJ's issuance of a decision
without a hearing was proper in this case since there is no genuine
issue of material fact. After a review of the record, the Commission
finds, assuming arguendo that complainant established a prima facie
case of discrimination, that the agency has articulated legitimate,
non-discriminatory reasons for the alleged non-selections. The agency
stated that for each announcement, they convened an Executive Evaluation
Panel to review all of the applications. Each panel certified 10
eligible candidates for each vacant position. Complainant was one of
those certified 10 eligible candidates for both positions. An identified
recommending official, then, signed off on the certificate of eligibles
and referred Selectees A and B, and not complainant, for the respective
positions. A selecting official, after conducting an independent review
of all 10 application packages for two positions without interviews,
selected Selectees A and B for the positions, respectively.
The recommending official stated that he recommended Selectee A for the
first position, described in claim (1), because she met the qualifications
described in the vacancy announcement and a subjective assessment of her
business and leadership skill. He stated that complainant, however, did
not meet the qualifications as highly as Selectee A and he ranked lower
in business and leadership skills. With regard to the second position,
the recommending official stated that his recommendation was based on the
Executive Core Qualification competencies. He stated that he recommended
Selectee B because he had competencies that exceeded complainant's in
his ability to lead change and to lead people. Selectee B also had
an extraordinary ability to build coalitions and interact with people.
In response to complainant's appeal, the agency indicates that despite
complainant's contentions, his qualifications as set forth in his
application packages were not plainly superior to those of Selectees
A and B. Specifically, the agency states that although complainant
was qualified to compete for the positions, he lacked a college degree
while both Selectees A and B to whom he compares himself had relevant
college degrees. Selectee A had a master degree in management.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
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
May 31, 2005
__________________
Date