01a40785
01-13-2005
Anita Maker, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Anita Maker v. Department of Homeland Security
01A40785
January 13, 2005
.
Anita Maker,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A40785
Agency No. I-01-W106
Hearing No. 340-2002-03347X
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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 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 filed two complaints in which
she alleged that the agency unlawfully failed to select her for
two different job posts. The agency accepted both complaints for
investigation but chose to consolidate one of them with complaints filed
by other complainants. The agency chose not to consolidate the instant
complaint, but at that time the matter was pending assignment to a new
EEO Administrative Judge (AJ). Upon learning that the matter would not
be consolidated with the other complaints, complainant filed a Notice of
Withdrawal from Hearing and Request for Final Agency Decision on July
7, 2003. The record is not entirely clear as to what happened next,
but according to complainant, she received no response from the AJ until
August 19, 2003, when the new AJ assigned to the matter informed her that
he intended to issue a decision without a hearing. Surprised by this and
not wanting an AJ decision, complainant's counsel discussed the situation
with the AJ on August 26, 2003. According to complainant, the AJ �took
a condescending tone, was argumentative and refused to accept the fact
that [she] had requested a Final Agency Decision and that [the original
AJ handling the matter] had failed to act upon the request.� Notice of
Appeal/Petition and Brief in Support of Appeal, at 3. The AJ argued
that no Withdrawal of Hearing Request had ever been received and that one
was not in the record. Nevertheless, he asked counsel to fax him a copy.
Counsel did so almost two weeks later on September 8, 2003. It appears
that the AJ waited for the fax until September 5th when the AJ issued
his decision finding no discrimination. The agency subsequently adopted
the AJ's decision in its final agency order dated November 17, 2003
The complaint at issue, filed on July 25, 2001, alleges that the agency
discriminated against her on the bases of national origin (Hispanic),
sex (female), age (DOB 11/8/1946), and in reprisal for prior EEO activity
(arising under Title VII) when on February 15, 2001, she was not selected
for the Detention and Deportation Officer-In Charge position, GS-1801-14,
that was advertised under vacancy announcement MSPII-99-431. At the time
of the complaint, complainant was an INS Assistant Officer-in-Charge,
Supervisory Detention and Deportation Officer, GS-13.
The AJ concluded that complainant failed to establish a prima facie
case of national origin, age, and sex discrimination or retaliation.
Specifically, the AJ found that no prima facie case of national
origin and age discrimination had been established because the person
who had been selected for the position was of the same national
origin as complainant and was almost the same age. Furthermore,
the AJ concluded that complainant failed to prove that the agency's
articulated nondiscriminatory reason for not selecting complainant
to the position was a pretext because she did not establish that her
qualifications were manifestly superior to the selectee. Lastly, the
AJ found that complainant had failed to show that her non-selection
was due to reprisal. After reviewing the record, the AJ agreed with
the agency that the selecting official made his decision based on the
candidate ratings that the three members of the hiring panel made based
on interviews and interview scores.
On appeal, complainant makes several arguments urging the Commission to
reverse the final order. First, she states that because the withdrawal
of hearing request was ignored she was never given the opportunity to
identify issues in dispute, and the record was not developed sufficiently
to issue a decision without a hearing. Second, she contends that the
AJ erred in finding that she had not articulated a prima facie case
discrimination because it is enough to establish that she was a qualified
minority female candidate whom the agency did not select so that a
similarly qualified individual not a member of her protected class could
be promoted. Complainant also listed and compared her qualifications
with those of selectee's to show that she was better qualified. Last,
she indicated that retaliation and bias motivated her non-selection.<1>
The Commission begins its analysis by addressing the AJ's alleged failure
to respond to complainant's hearing withdrawal request. Complainant
submitted evidence that she had indeed filed the Notice of Withdrawal
from Hearing on July 7, 2003, yet the AJ asserts that no Notice was
in the case file. The Commission would first like to point out that
even if the Notice had been misplaced and the AJ never knew of its
existence and even though the AJ may have expended a tremendous effort
in drafting the notice of intent to issue a decision without a hearing,
once the AJ learned through counsel that the Notice had been filed,
the AJ should have honored the request. Nevertheless, the Commission
finds the AJ's error to be harmless because if the case had been remanded
to the agency according to complainant's request, the record would not
have been further developed and the standard of review is the same.<2>
Therefore, as this is an appeal from a final action issued without a
hearing, the agency decision is subject to de novo review pursuant to
29 C.F.R. � 1614.405(a).
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. See 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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
The Commission finds that here the issuance of a decision without a
hearing was appropriate, as no genuine dispute of material fact existed.
We find that the AJ's decision properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's protected
classes. Specifically, the Commission finds that the affidavits of the
members of the hiring panel and their candidate rating sheets contained in
the record sufficiently corroborate the selecting official's explanation
of why he chose to hire the selectee instead of complainant. Furthermore,
complainant offered no evidence to rebut the agency's articulated reasons
for not selecting her for the job. The record evidence regarding
complainant's performance during the interview and the selectee's
experience and qualifications supports the agency's assertion that the
selectee in comparison to complainant was better qualified to handle
the duties of the Detention and Deportation Officer-In Charge position.
Further, with regard to complainant's allegation that the selecting
official and a member of the hiring panel were personal friends with
the selectee and because they knew of her prior EEO activity were biased
against her, the Commission finds that complainant has presented nothing
more than mere speculation of discriminatory intent in an effort to
avoid summary judgement.
In light of the above findings, the Commission discerns no legal basis
to reverse the AJ's finding of no discrimination. Accordingly, the
Commission AFFIRMS the final agency order finding no discrimination.
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:
January 13, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Specifically, complainant stated that the selecting official knew
of complainant's prior EEO activity and previously had been found to
have discriminated unlawfully. She also states that one of the hiring
panel members was biased against her because complainant had previously
filed an EEO complaint against the agency when she was not selected to
a position which was ultimately awarded to the panel member.
2 Complainant's counsel should also be reminded to act promptly on behalf
of the client when requested by an agency or AJ. Here, even after the
alleged verbal altercation between counsel and the AJ, counsel waited
nearly two weeks to fax the AJ a copy of the hearing withdrawal request.