01a51901
07-07-2005
Virginia L. Farris, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Virginia L. Farris v. Department of State
01A51901
July 7, 2005
.
Virginia L. Farris,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A51901
Agency No. 00-74
Hearing No. 100-2003-07318X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her 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.
The record reveals that complainant was a Counselor for Public Affairs
at the U.S. Embassy in Bangkok from August 1998 through June 24, 2001.
Believing she was a victim of discrimination, complainant filed a formal
EEO complaint on September 6, 2000, alleging that the agency discriminated
against her on the bases of race (Asian/Chinese) and sex (female):
(1) by not selecting her for the USNATO political counselor vacancy;
by acting unfavorably regarding her vacancy bids for the following
positions: (a) Hague AF political advisor, (b) PAO Athens
assignment/position, and (c) USNATO political counselor/advisor; and
by a sustained pattern of discrimination to deny her multi-functional
assignments or assignments to positions that might qualify her for such
multi-functional assignments.
Complainant also contends that she was subjected to reprisal for prior
EEO activity [arising under Title VII] when:
she was made the subject of an OIG investigation involving issues over
separate maintenance allowance;
she was prevented from proceeding to her assignment in Pretoria, South
Africa because her medical clearance was intentionally delayed;
the Office of Medical Services discussed complainant and her family's
case before a world-wide conference in Boston; and
management breached a signed agreement concerning the condition of
complainant's medical clearance.
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 agency filed a �Motion for Summary
Judgment,� to which complainant filed a reply. On November 17, 2004,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ found, as to issue (1), that although complainant established
a prima facie case of discrimination, the record clearly shows that
the selectee was better qualified than complainant. The AJ found that
complainant's contentions that she is better qualified and that there
was a procedural irregularity (that she was entitled to the position
because of her seniority), are not supported by persuasive evidence,
and do not create a question of fact or credibility. As to issue (2),
the AJ found that complainant does not challenge her non-selection per se,
but challenges the conduct of the process. The AJ found that in none of
the positions did complainant present comparative evidence showing that
a similarly situated person, not of her race or sex, was treated more
favorably, or any other evidence from which to infer discrimination.
As to issue (3), the AJ found that complainant is essentially arguing
that because she was an excellent employee she should have been
promoted at some point, however, she has failed to identify specific
timely nonselections or proffer evidence of discrimination. The AJ
found that assuming arguendo that this allegation even states a claim,
there is absolutely no evidence of a prima facie case. With regard to
issues (4) through (7), the AJ found that none of the matters state a
justiciable claim because they do not negatively affect a substantive
term, privilege or condition of complainant's employment. The agency's
final order implemented the AJ's decision.
On appeal, complainant, through counsel, contends that the instant
case should not have been decided without a hearing. Complainant
further contends that the AJ made a credibility determination by
finding that the selectee was better qualified, and by not crediting
her contention that the selectee's qualifications were exaggerated.
Complainant additionally contends that several additional material
factual issues remain unresolved. Complainant also contends that
the statistical analyses in the record support complainant's claim.
Further, complainant contends that the discovery process was truncated,
noting that complainant has been assigned by the agency in South Africa
since November 29, 2001, and has never had an opportunity to meet with
her counsel. The agency replies that the AJ's decision without a hearing
was proper, and requests that we affirm the final order.
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 a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition.
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may
be able to establish pretext with a showing that his qualifications were
plainly superior to those of the selectee(s). Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). As to issue (1), complainant has
not made this showing. In support of her contention that the selectee's
qualifications were exaggerated, complainant presents evidence in the
form of an electronic message from a colleague who expressed that the
selectee was not �popular� and �probably is a pretty poor manager, too.�
We find this evidence insufficient to create a genuine issue of material
fact as to the selectee's qualifications for the position in question.
As to issue (2), we agree that complainant failed to establish a prima
facie case of discrimination. We further find that issue (3) does not
state a claim of discrimination as complainant has not specified which
positions she believes were wrongfully denied to her, or when she learned
she was not selected for such positions.
As to issues (4) through (7), we find that complainant has failed to
establish a prima facie case of retaliation. With regard to the claim
that complainant was subjected to an investigation by the IG (claim
(4)), the Commission has consistently held that being the subject
of an IG investigation does not render an individual aggrieved under
the EEOC's regulations. See Mattocks v. Department of the Navy, EEOC
Request No. 05950549 (August 29, 1996). As to (5), complainant has not
established the nexus between her prior EEO activity and the challenged
action. In so finding, we note the lack of temporal proximity between
the two events. As to (6), again, there is no temporal proximity,
and no nexus established. As to (7), complainant contends that the
two psychiatrists who were allegedly involved were aware of her prior
EEO activity, however, the psychiatrists deny having such knowledge,
and complainant has not presented evidence beyond her bare assertion
sufficient to create a genuine issue of material fact. Additionally,
we find that the statistical evidence of record does not, by itself,
create a genuine issue of material fact as to the challenged actions,
for which a hearing would be required. We note additionally, that we
do not find that the discovery process was truncated, nor that the AJ's
decision was improper on the grounds that complainant has not had the
opportunity to meet with counsel.
After a careful review of the record, the Commission finds that the AJ's
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003). Further, construing the evidence to be
most favorable to complainant, we conclude that complainant failed to
present evidence that the agency's actions were motivated by retaliation
or discriminatory animus toward her protected class. Therefore, we
AFFIRM the agency's final order.
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
July 7, 2005
__________________
Date