01A24412_r
09-15-2003
Arland J. Luster, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Arland J. Luster v. Department of the Army
01A24412
September 15, 2003
.
Arland J. Luster,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A24412
Agency No. BEFLFO0005A0080
Hearing No. 100-A2-7799X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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.
Complainant, a GS-13 staff accountant at the agency's Finance and
Accounting Policy Division facility in Washington, D.C., filed a formal
EEO complaint on July 21, 2000, alleging that the agency discriminated
against him on the basis of race (African-American) when in March 2000,
the agency failed to select him for one of two GS-14 staff accountant
positions.
The record reveals that the selection panel for the relevant positions
consisted of three GS-15 Division Chiefs. The panel used seven elements
to evaluate candidates: accounting experience, automated financial
systems experience, dual/multiple discipline experience, advance
degree/professional certifications, corps/revolving fund experience,
policy development experience, and overall interview impression. Based
upon resum�s and application packets submitted, the agency determined that
complainant and seven other candidates were qualified for the positions
and scheduled them for an interview. Two white applicants were selected
for the positions.
In an investigative affidavit, the selecting official stated that one
selectee was chosen because of his exceptional job experience as a lead
auditor in the agency. The selecting official further stated that this
selectee possessed a Master of Business Administration degree as well
as had experience in auditing and operations research. The selecting
official stated that the other selectee was selected because of
extensive experience in two different fields (budget and finance) of
resource management and with a $25 billion automated financial system.
The selecting official stated the second selectee ranked very high because
he possessed a Master of Public Administration degree, in addition to
a degree in accounting. Complainant possessed a degree in accounting.
Finally, the selecting official noted that complainant lacked experience
outside of the audit field and was therefore ranked very low in the
element of dual/multiple discipline experience.
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 AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions and that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination/retaliation. In reaching this conclusion,
the AJ found that although complainant asserted that he did work as a
GS-14 accountant, he never brought this experience to the attention of
the selecting panel in the interview or application package. The AJ
further noted that complainant stated in an investigative affidavit
that he likewise failed to bring a cash award to the attention of the
selecting panel. The agency's final order 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, the issuance of
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. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
A complainant may establish a prima facie case of discrimination in the
non-selection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected
for the position; and (4) he was accorded treatment different from that
given to persons otherwise similarly situated who are not members of
his protected group or, in the case of age, who are considerably younger
than he. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). 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). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In this matter, we find that complainant established a prima facie case
of discrimination on the basis of race because complainant demonstrated
that he is African-American; applied for and was qualified for a GS-14
Staff Accountant position; was not selected for the position; and
persons outside his race were selected for the positions. Further, we
find that the agency articulated legitimate, non-discriminatory reasons
for not selecting complainant for a GS-14 staff accountant position.
We particularly note that the selectees had experience in dual fields
and possessed advanced degrees, while complainant did not. Complainant
argues that the agency's proferred reasons are pretext for discrimination
because he had more supervisory experience than the selectees. However,
the importance of this claim is undermined because the record reveals that
the position at issue was a non-supervisory position. We further find
that complainant failed to present any evidence that his qualifications
for the position were plainly superior to the selectees or that the
selecting criteria were tailored to favor the selectees. Moreover,
complainant did not present evidence that the selection criteria used
by the agency were motivated by discriminatory intent. Consequently,
we find that complainant failed to present any evidence from which
a reasonable fact-finder could conclude that the agency's proferred
reasons for his non-selection are pretext for unlawful discrimination.
Accordingly, 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 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
__September 15, 2003________________
Date