0120121702
07-25-2012
Patricia Pisczek, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Patricia Pisczek,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120121702
Hearing No. 530-2011-00216X
Agency No. P20100503
DECISION
Complainant filed an appeal from the Agency's April 2, 2012, final order1 concerning her equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-7 Correctional Officer at the Federal Correctional Institution (FCI) in Loretto, Pennsylvania. She stated that she has worked for the Agency since 1990, and as a Correctional Officer for four years. Prior to becoming a Correctional Officer, Complainant had worked as a Unit Secretary.
On March 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (50) when she was not selected for the position of Food Service Assistant, Vacancy Number LOR-2010-2008.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's November 4, 2011 motion for a decision without a hearing. Because Complainant submitted an untimely response to the Agency's motion, the AJ did not consider her arguments therein.
The AJ determined that the record developed during the investigation indicated the following undisputed facts. Complainant initially applied for a posted position seeking Food Service Assistants in September 2009. No position was filled based on this posting. Shortly thereafter, the Agency posted a new vacancy announcement for the same position and, in November 2009, Complainant submitted a new application.
The Agency's Human Resources department in Grand Prairie, Texas, received the applications and created certificates of eligibility for the selecting officials. While Complainant was rated as "eligible" for the position, her name was not placed on the list of "best qualified" candidates. The certificates were forwarded to the selecting officials, who were the Warden and Associate Warden of the Loretto FCI. The eventual selectee (male, under 40) was chosen from the "best qualified" list.
The selecting officials stated that the selectee was chosen because he was already in a similar food service position at another institution and had been so for a number of years.
Based on this evidence, the AJ issued a decision by summary judgment in favor of the Agency on January 18, 2012. In his decision, the AJ determined that the responsible management officials articulated legitimate, non-discriminatory reasons for the selection decision. The selectee was ranked first on the list of best qualified candidates and had veterans' preference. In addition, he already occupied a similar food service position at another institution.
The AJ concluded that Complainant failed to prove, by a preponderance of the evidence, that the proffered reasons for the selection were pretext for discrimination. While noting that Complainant had 15 years of experience as a Unit Secretary and four as a Correctional Officer, the AJ found that Complainant failed to show that her KSA (Knowledge, Skills and Abilities) rating, with or without veterans' preference, was higher than that of the selectee. The AJ noted that Complainant had no relevant food service experience while the selectee had over five years of work experience in food service and training, including NT-Food Service Computer training, as well as Resource Conservation and Recovery Act Awareness training. Thus, the AJ found that the evidence supported the conclusion that Complainant was not selected because of her lack of relevant food service work experience and training.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed without substantive comment.
ANALYSIS AND FINDINGS
We must 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the undisputed evidence of record fully supports the AJ's determination that Complainant failed to show that her work experience was clearly superior to that of the selectee. The selectee had relevant food service experience while Complainant did not. As such, Complainant has failed to show that the Agency's reasons for not selecting her were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Order which adopted the AJ's finding that Complainant was not discriminated against as alleged.
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, 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 (S0610)
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 (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 filed her appeal following the issuance of the Administrative Judge's decision. Given that the Agency subsequently issued its final order, Complainant's premature appeal is now accepted.
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0120121702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121702