01a54939_r
12-21-2005
Chris Grinnell, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Indian Affairs), Agency.
Chris Grinnell v. Department of the Interior
01A54939
December 21, 2005
.
Chris Grinnell,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs),
Agency.
Appeal No. 01A54939
Agency No. BIA-03-044
Hearing No. 370-2005-00103X
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.
Complainant, a Highway Engineer (Planning), GS-810-11, at the agency's
Branch of Roads, Pacific Regional Office in Sacramento, California,
filed a formal EEO complaint on June 24, 2003, alleging that the agency
discriminated against him on the basis of race (Native American) when:
on December 27, 2002, he was notified that he was not selected, nor
certified for the position of Supervisory Contract Specialist, GS-12,
advertised under Vacancy Announcement BIA-PR-02-262 (DV), by the Bureau
of Reclamation (BOR) Human Resources Office.<1>
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 agency thereafter filed a Motion for
Summary Judgment.<2>
On May 6, 2005, the AJ granted the agency's motion for a decision without
a hearing, finding no discrimination. The AJ found that complainant
failed to establish a prima facie case of race discrimination because
the position of Supervisory Contract Specialist, GS-12, was not filled.
Specifically, the AJ found that eight candidates, including complainant,
applied for the subject position. The further found that six candidates,
not in complainant's protected class, were identified as being qualified
for the subject position and were referred to the Selecting Official.
The AJ found, however, that the six candidates were later notified of
the cancellation of the subject position. The AJ found that complainant
and another Native American candidate were not deemed qualified because
they did not meet the qualifications. The AJ concluded that even if
complainant had been found qualified and certified, he would have been
notified of the cancellation of the subject position. The AJ found that
there was no evidence in the record to suggest that the cancellation
of the subject position was discriminatory against Native Americans in
general or against complainant individually. Furthermore, the AJ found
that complainant failed to show that the agency's articulated reasons
were a pretext to mask unlawful discrimination.
Complainant argued that the competitive service rules do not apply to
BIA and that the Supervisory Human Resources Specialist (Specialist)'s
application of these rules to his application was discriminatory
motivated. However, the AJ found that the agency admitted that an error
was made in evaluating complainant's application. The AJ further found
that the agency stated that the Specialist was unaware of the error at
the time she informed complainant that he did not meet the time in grade
requirements. The AJ found that the agency acknowledged that complainant
was qualified for the subject position. Furthermore, the AJ found that
the agency's error whether or not complainant was qualified was of no
legal significance because the agency did not make a selection for the
subject position because the vacancy announcement was cancelled.
The record reflects that the Specialist stated that she reviewed and
rated the eight candidates' application packages, including complainant's
package. The Specialist stated that she determined that six candidates
were deemed qualified for the subject position, and referred them to the
Selecting Official for consideration. The Specialist stated that she
did not certify complainant and another Native American employee because
she determined that they did not meet the qualifications. Specifically,
the Specialist stated that complainant "did not meet time and grade,
and also did not meet the mandatory training requirements for the 1102
Contracting GS-13 position." The Specialist stated that complainant also
"hadn't been a GS-12 for a year."
With respect to complainant's assertion that as an Indian preference
candidate he should have been hired for the subject position, the
Specialist stated that complainant was eligible for appointment in BIA.
The Specialist stated "however, it doesn't mean that you don't have to be
qualified for a position for which you make application, only that you
can be appointed in that agency." The Specialist stated that she was
aware of two sets of qualifications standards: the Office of Personnel
Management (OPM) standard and BIA's excepted standard. The Specialist
stated that BOR Human Resources does not apply BIA standards if a
candidate is Indian preference eligible or OPM standards when a candidate
is not Indian non-preference eligible. The Specialist stated that BOR
Human Resources applied the OPM qualification standards while reviewing
the candidates' application packages, including complainant's package,
for the subject position. The Specialist stated that "in fact, we have
never used the BIA standards for any of the positions processed through
our office." The Specialist stated that while BOR Human Resources
"provides personnel services for two different Bureaus and we chose
to use one set of standards for all." Moreover, the Specialist stated
that when BOR Human Resources learned of the second set of standards,
we "did not feel that it would be right to change how we were doing
business midstream."
Further, the Specialist stated that on February 5, 2003, the Selecting
Official cancelled the subject position "due to the BIA reorganization,
the decision was made not to fill the support position until the workload
could be determined." The Specialist stated that the subject position
"has now been assigned to another Region." Furthermore, the Specialist
stated that complainant's race was not a factor in her determination
that he was not qualified for the subject position.
On June 16, 2005, the agency issued a final order wherein it implemented
the AJ's decision finding no discrimination.
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.
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. See 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. See 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. See 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. See U.S. Postal
Service Board 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).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext for
discrimination. The agency's final order implementing the AJ's finding
of no discrimination 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
December 21, 2005
__________________
Date
1The record reflects that during the relevant time, the BOR Human
Resources, Mid-Pacific Region, performed the personnel functions for
Bureau of Indian Affairs (BIA) pursuant to an agreement between the
two bureaus.
2The record does not contain a copy of the agency's motion for summary
judgment.