01a60120_r
03-15-2006
Walter A. Johnson, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Walter A. Johnson v. Department of the Interior
01A60120
March 15, 2006
.
Walter A. Johnson,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A60120
Agency No. BIA-04-011
Hearing No. 380-2005-00056X
DECISION
Complainant filed an appeal from the agency's final action dated
October 7, 2005. In his complaint, dated February 11, 2004, complainant
alleged discrimination based on race (American Indian/Alaska Native),
sex (male), national origin (Tlingit), age (DOB: 10/7/38), and disability
(hearing-impaired) when: (1) on February 26, 2004, he learned that he was
not selected for the position of Realty Specialist, GS-11, located at
the Alaska Region West-Central Alaska Filed Office, Anchorage, Alaska;
and (2) the Southern Plains Regional Human Rights Resources Office did
not apply his 10-point Veteran Preference in qualifying him for the
foregoing vacancy. Following the completion of the investigation of the
complaint, complainant requested a hearing before an EEOC Administrative
Judge (AJ). On August 22, 2005, the AJ issued a decision without holding
a hearing, finding no discrimination for claim 1 and dismissing claim
2 for failure to state a claim. The agency's final action implemented
the AJ's decision.
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.
Regarding claim 2, we find that to the extent this is a separate claim in
the complaint, the AJ properly dismissed the claim for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Commission does not
enforce whether a Veterans Preference was properly given or calculated.
Regarding the non-selection at issue in claim 1, the Commission finds
that the grant of summary judgment was appropriate, as no genuine
dispute of material fact exists. The AJ found that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency has articulated legitimate non-discriminatory reasons for
its actions. The agency's Human Resources Specialist indicated that
he rated and scored complainant's application based on the application
materials complainant submitted and that complainant and the selectee
were both rated as qualified for the position. The selecting official
stated that she selected the selectee because he showed better knowledge,
skills, and abilities (KSAs) for the position at issue. Specifically,
she indicated that the applicants were rated based on KSAs which measured
knowledge of realty principles, practices and techniques; knowledge of
the principles and concepts of real property, regarding laws, concepts
and practices; knowledge of applicants for sales, deeds, and other
documents; and the ability to analyze facts, alternatives and problems.
The selecting official stated that complainant received a rating of 4
points on the first KSA and 3 points on the second, third, and fourth KSA,
whereas the selectee received a rating of 5 points on each and every KSA.
After a review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for the non-selection.
The Commission also finds that complainant failed to provide any evidence
showing that the articulated reasons were pretextual or showing that
any agency action was motivated by discrimination.<1>
The agency's final action is AFFIRMED.
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
March 15, 2006
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.