0120073083
09-20-2007
Angel Santos, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Angel Santos,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073083
Hearing No. 520-2007-00186X
Agency No. 200H-0518-2006-102205
DECISION
On June 22, 2007, complainant filed an appeal from the agency's June
13, 2007 final order concerning his 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. For the following reasons, the Commission AFFIRMS the
agency's final order.
At the time of events giving rise to this complaint, complainant worked
with the agency as a Housekeeping Aide. On July 24, 2006, complainant
filed a formal EEO complaint wherein he claimed that he was discriminated
against on the basis of his race (Puerto Rican) when he was not selected
for the position of Paint Leader, WL-4102-10. The record reveals that
complainant was one of five individuals who applied for the position under
the internal announcement. Although complainant was found to be qualified
for the position, he was not among the three applicants referred to the
selecting official by the three member panel. The panel was read each
employee's work history and KSA responses by a Human Resources official.
The panel members then assigned ratings to each candidate and complainant
was ranked fifth among the five applicants. The individual selected
for the position was the highest ranked candidate based on the panel's
ratings and is outside of complainant's protected group.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not object, the AJ assigned to
the case granted the agency's March 28, 2007 Motion for a Decision Without
a Hearing and issued a decision without a hearing on May 9, 2007. The AJ
stated that since complainant claimed that he was discriminated against
because he is Puerto Rican, the claim is more accurately described as a
claim of discrimination based on national origin rather than race. The AJ
found that complainant established a prima facie case of discrimination.
The AJ observed that the agency's reason for not selecting complainant
was because he was ranked lowest of the five candidates by the panel and
therefore his application was not among the three that were referred
to the selecting official. The AJ noted that the applicants were
anonymous at the time of the ranking as the panel completed rating
sheets for each applicant based on the applicants' work history and
KSA responses that were read to them by the Human Resources official.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for complainant's nonselection. With regard to complainant's
effort to show pretext, the AJ observed that complainant believed that
he had better qualifications than the selectee. Complainant argued that
he had previously been a Paint Leader at the Medical Center before he
left the agency to become a painter in the private sector. However, the
AJ noted that the panel also evaluated the candidates' qualifications
in terms of history of maintaining a painting team, education and an
environmental management background. The AJ reasoned that there was no
indication that the panel members were aware of complainant's race or
national origin at the time of the rankings in light of the fact that
the candidates were ranked anonymously. The AJ therefore concluded that
their ranking of complainant could not been motivated by discriminatory
animus based upon the fact that he is Puerto Rican. Further, the AJ
found that a review of the applications of complainant and the selectee
shows that although complainant was well qualified for the position,
his qualifications were not plainly superior to those of the selectee.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant states that he served as the Painter Group Leader
for four years at the Medical Center until he left the agency in 1993.
In response, the agency asserts that the panel completed rating sheets
for each applicant and utilized a process that promoted anonymity of the
candidates. The agency maintains that the rankings were based solely
on the work histories and KSA responses provided by the applicants.
The agency asserts that the selectee was the most qualified candidate
for the position.
We must first 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. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
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).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of race and national origin discrimination.
Next, we shall consider whether the agency articulated a legitimate,
nondiscriminatory reason for its action. The agency stated that the panel
members rated complainant fifth among the five candidates and thus was not
among the three applicants referred to the selecting official. According
to the agency, the panel based its ratings on the candidates' experience,
history of maintaining a painting team, education and environmental
management background. We find that the agency articulated a legitimate,
nondiscriminatory explanation for its nonselection of complainant.
Complainant argued that he has more experience than the selectee.
We observe that complainant has previously worked at the Medical Center
in the Group Paint Leader position. However, complainant stopped working
in that position over a decade before the instant selection. A review
of the applications of the three candidates that were referred to the
selecting official reveal that they had relevant experience for the
position and also had qualifications that satisfied the other criteria
sought by the panel. It is clear that complainant was qualified for
the position. However, complainant has not shown that his qualifications
for the position at issue were so superior to those of the selectee as
to warrant a finding that the agency's stated reasons are pretextual.
See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Moreover, the
record indicates that the panel members were not aware of the identities
of the candidates when their qualifications were presented to them by
the Human Resources official. Accordingly, we find that complainant has
failed to establish that his nonselection was due to discrimination on
the basis of either national origin or race.
The agency's final action finding no discrimination is hereby 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
September 20, 2007
__________________
Date
2
01200730
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073083