01996264_r
11-06-2001
Susan M. Komar, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Susan M. Komar v. Department of the Navy
01996264
November 6, 2001
.
Susan M. Komar,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01996264
Agency No. 98-63285-005
Hearing No. 100-99-7359X
DECISION
Pursuant to 29 C.F.R. �1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant, a Training Specialist, GS-1712-12, filed a complaint in which
she claimed that the agency discriminated against her on the basis of her
sex (female) in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e, et seq., when: (1) in March 1998, a male
was selected by the Naval Criminal Investigative Service as a direct hire
to fill a GS-13 training specialist position in the Training Department;
and (2) in February 1998, a female employee was detailed from the Training
Department to the Computer Investigations and Operations Department.
The agency investigated the complaint and thereafter referred the
matter to an Administrative Judge (AJ), who issued a decision finding
no discrimination without holding a hearing. The agency issued a final
order adopting the AJ's decision. It is from this final order that
complainant now appeals.
The Commission's regulations provide that an Administrative Judge
may issue findings and conclusions without a hearing if �some or all
material facts are not in genuine dispute and there is no genuine issue
of credibility.� 29 C.F.R. �1614.109(g)(1). 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 does not sit as a fact finder. Id. 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.
A disputed 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 under
Title VII, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed.
Complainant must initially establish a prima facie case by demonstrating
that she 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 burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804
n. 14 (1973). In the present case, complainant can establish a prima
facie case of sex discrimination regarding her nonselection by showing:
(1) she was a member of a protected class or classes;
(2) she was qualified for the position for which she applied;
(3) she was not selected despite her qualifications;
(4) the job was given to a person outside of her protected group(s).
With regard to the direct hire of a male for the GS-13 Training
Specialist position in the Naval Criminal Investigative Service, the
record reveals that the position at issue required a background in foreign
counterintelligence. Complainant's work experience is primarily in the
field of automated data processing. Complainant, unlike the Selectee,
lacked experience in the field of foreign counterintelligence and
therefore she has not established that she was qualified for the GS-13
Training Specialist position. Therefore, we find that complainant has
failed to show that her nonselection was motivated by sex discrimination.
As for the temporary detail of a Training Specialist from the Training
Department to the Computer Investigation and Operations Department,
we find that complainant failed to establish a prima facie case of
discrimination. Both complainant and the individual who was transferred
are female. Complainant failed to produce any evidence that an individual
outside of her protected group was treated more favorably than her.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge'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
November 6, 2001
__________________
Date