01A10498
04-11-2002
Calvin E. Williams, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Calvin E. Williams v. Department of the Army
01A10498
April 11, 2002
.
Calvin E. Williams,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10498
Agency No. BGASF098031015
Hearing No. 100A07568X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the basis of his
disability (30% veterans disability - degenerative disc disease and
diabetes) when he was non-referred and non-selected for the position of
Heating and Air Conditioning Equipment Mechanic, WG-530-10, Announcement
No. C47197SC, located in DPW, Utilities Branch, Fort A.P. Hill, Bowling
Green, Virginia.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a temporary employee at the agency's
Fort A.P. Hill facility, in Bowling Green, Virginia, applied for the
permanent position in question in December 1998. Seven individuals,
including complainant, applied for the position. After learning that
he was non-referred and non-selected, complainant filed a formal EEO
complaint with the agency on April 28, 1998, alleging that the agency
had discriminated against him as referenced above. 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 complainant failed to establish a prima facie case
of disability discrimination. Specifically, the AJ found that complainant
failed to demonstrate that he is an individual with a disability, as
defined by the Rehabilitation Act. Therefore, the AJ concluded that
complainant was not subjected to discrimination based on disability.
The agency's final decision implemented the AJ's decision.
On appeal, complainant makes the following principal arguments: (1)
The AJ erred when he failed to consider documents in the record that
establish that he is an individual with a disability; (2) The agency or
the selectee falsified portions of documents in his application.
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.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant is an individual with a disability,
and that he otherwise established his prima facie case of discrimination,
the Commission turns to the agency to articulate a legitimate,
nondiscriminatory reason for its action. The record establishes
that the agency non-referred and non-selected complainant due to an
administrative error by the Supervisor Personnel Staffing Specialist
(SP). See ROI, Exhibit H, Transcript of Fact Finding Conference,
p. 61, 76-77. Specifically, another applicant (�selectee� or �S1"),
applied for the same position, and as the spouse of a soldier, S1 had
status as a Priority 3 Stopper candidate. Upon realizing that S1 had
such status, SP wrongly stopped recruitment and referred S1's name to
management as a mandatory placement. SP wrongly failed to refer any
other candidates to management. See Id. at p. 53, 60. SP testified
that she did not find out until later that she had erroneously stopped
the recruitment process. Id. at p. 52. SP testified that she did not
know complainant, nor that he claimed to be disabled. Upon review of the
record, the Commission finds that this administrative error constitutes
a legitimate, nondiscriminatory reason for the action.
The burden returns to complainant to show that the agency's reasons were
pretext for discrimination. Complainant argues that his application
was not referred for consideration because of his disability, and that
everybody was aware of his disability. See ROI, Exhibit H, Transcript
of Fact Finding Conference, p. 33-34. Specifically, he asserts that
he told his immediate supervisor and the CPO about his disability
in March 1997. See Id., p. 13-14. This argument is not persuasive,
however, given that he has presented no evidence that he was treated
differently than the other applicants, outside of his protected class.
The record indicates that no applicant was referred to management for
consideration after SP's improper referral of S1 as a mandatory placement.
Complainant admits that he has no knowledge that would suggest otherwise.
See ROI, Exhibit H, Transcript of Fact Finding Conference, p. 34-35.
While the administrative error was unfortunate, we are not persuaded
that the challenged action was, more likely than not, motivated by an
intent to discriminate against complainant.<2>
It is the determination of the Commission that the grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
We find that the AJ's decision properly summarized the relevant facts
and referenced 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 class. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final decision.
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
April 11, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2 We note that on appeal, complainant asserts that the agency or the
selectee falsified documents in order to discriminate against complainant
based on his disability. However, complainant proffers nothing to
substantiate this bare assertion.