01a50201
02-25-2005
Richard Gong, Complainant, v. Hal Stratton, Chair Consumer Product Safety Commission Agency.
Richard Gong v. Consumer Product Safety Commission
01A50201
02/25/05
.
Richard Gong,
Complainant,
v.
Hal Stratton, Chair
Consumer Product Safety Commission
Agency.
Appeal No. 01A50201
Agency No. SPSC EEO 03-001
Hearing No. 120-2003-00555X
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.
I. BACKGROUND
The record reveals that complainant, not employed by the agency, filed
a formal EEO complaint on December 4, 2002, alleging that the agency
discriminated against him on the bases of race (Asian) and national origin
(Asian) when he was not selected for any of 14 positions of Product Safety
Investigator which were announced between January 2001 and November 2002.
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 agency's final order implemented the AJ's decision.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination on any basis for any of his non-selections because
the selectors did not know his race or national origin. The AJ,
alternatively, concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that in each
non-selection, complainant was not selected because the selecting
officials did not find him the most qualified candidate. The AJ found
that while complainant argued that the selection process was flawed
because it was not standardized, he provided no evidence to show other
candidates were treated differently, let alone because of their race or
national origin. The AJ, therefore, concluded that no genuine issue of
material fact existed in the record regarding whether complainant was
not selected because of his race or national origin.
On appeal, complainant restates arguments previously made in his pre-
hearing statement. Among other things, he argues that it is clear the
agency does not use consistent standards to select among applicants
because he was interviewed for some Product Safety Investigator openings
and not for others and because he was ranked anywhere from 3rd to 28th
in different selection processes, despite his qualifications always
being the same.
II. LEGAL STANDARD
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In a non-selection case, pretext may be demonstrated where complainant's
qualifications were "so plainly superior as to require a finding of
pretext." Cadle v. Departmnet of Agricultures, EEOC Appeal No. 01997044
(June 3, 2002) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981)). When choosing among highly qualified candidates for a
position, employers generally have broad discretion to set policies and
make personnel decisions, and should not be second-guessed by a reviewing
authority, absent evidence of unlawful motivation. Cadle, supra (citing
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981)).
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.
III. ANALYSIS
We find that grant of summary judgment was appropriate, as no genuine
dispute of material fact exists. Construing the evidence to be most
favorable to complainant, we find that complainant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected classes.
The agency articulated a nondiscriminatory explanation for not selecting
complainant in each instance. The record reveals that while complainant
met the minimum qualifications for the openings, he was either not
considered the most qualified candidate by the selectors or the vacancy
was canceled. No direct evidence of discriminatory animus exists in
the record. Nor can complainant show that he was plainly more qualified
than the selectees. No genuine issue of material fact exists as to
whether the agency's nondiscriminatory reason was pretextual.
Complainant contends that the selection processes varied from one opening
to the other, despite them being for the same type of position. He states
that he was interviewed for some openings but not others and that his
ranking varied in different selection processes despite his qualifications
staying the same. This assertion, however, does not prove any suspicious
irregularities existed in the selection decisions. It merely suggests
and the record confirms that the decisions were partially subjective
and that the quality of the pool of candidates varied for each opening.
IV. CONCLUSION
Therefore, after careful review of the record and statements submitted on
appeal, we affirm the agency's final decision finding no discrimination
without a hearing.
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
___02/25/05_______________
Date