0120122739
09-25-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation, Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120122739
Hearing No. 570-2011-00698X
Agency No. DOT-2010-23624-FMCSA-02
DECISION
On June 15, 2012, Complainant filed an appeal from the Agency's May 16, 2012, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Division Program Specialist at the Agency's Federal Motor Carrier Safety Administration facility in Washington, D.C.
On November 11, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), disability (physical), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Complainant was not selected for the position of Division Administrator (District of Columbia Division), GS-0340-14, advertised under Vacancy Announcement No. FMCSA-FO-2010-0054 (DA Position).
2. Complainant was not selected for the position of Supervisory Transportation Specialist (HAZMAT), GS-2101-14/15, advertised under Vacancy Announcement No. FMCSA-2011-0007 (HM Chief Position).
At the conclusion of the investigation, the Agency provided Complainant 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.
The Agency moved for a decision without a hearing on March 23, 2012. The Agency asserted that there were no material facts in dispute and that the record supported a decision finding no discrimination. On April 9, 2012, Complainant responded to the Agency's motion asserting that the matter warranted a hearing.
The AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on May 15, 2012. The AJ listed facts not in dispute. The AJ noted for the DA Position that Complainant was one of six candidates on the list of eligible candidates. The AJ found that the Interview Panel 1 consisted of three individuals who interviewed five of the candidates for the DA Position including Complainant and the Selectee (Selectee 1). The Selecting Official for the DA Position (SO1) was looking for someone who could excel in the area of grants and state programs. Interview Panel 1 unanimously recommended Selectee 1 for the DA Position.
As for the HM Chief Position, the certificate of eligible candidates included Complainant and five other individuals. The Interview Panel (Interview Panel 2) interviewed three candidates including Complainant and the Selectee (Selectee 2). Interview Panel 2 unanimously recommended Selectee 2 to the Selecting Official (SO 2) for the HM Chief Position. SO 2 summarized his reasons for selecting Selectee 2 into a memorandum.
The AJ found that the record has been sufficiently developed and that there were no material facts in dispute. Further, the AJ held that the Agency articulated legitimate reasons for selecting Selectees 1 and 2. As for Selectee 1, Interview Panel 1 chose the strongest candidate to manage the business needs of the Division and the grant-related priorities. SO 1 accepted the recommendation of Interview Panel 1. As for Selectee 2, the AJ noted that Interview Panel 2 chose Selectee 2 unanimously based on his significantly more experience in hazardous materials transportation safety than Complainant. SO 2 picked Selectee 2 based on Interview Panel 2's recommendation. The AJ noted that the record consisted of affidavits and notes from the interview panels to substantiate the decisions. The AJ turned to Complainant to establish that the Agency's reasons were pretext for discrimination. The AJ noted that Complainant failed to provide any probative evidence or material facts in the record that would conclude that his qualifications were superior to those of Selectees 1 and 2. In addition, the AJ held that Complainant did not provide any evidence to show that the Agency's reasons were pretext for illegal discrimination. The AJ stated that Complainant's arguments regarding pretext were simply conclusory assertions that were provided without support in the record. Therefore, the AJ found that Complainant did not establish that he was subjected to discrimination as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
On appeal, Complainant argued that the AJ erred in issuing a decision without a hearing in that there were material facts in dispute. Complainant also asserted that the AJ failed to take into consideration the "voluminous" record evidence he provided in support for his claims of discrimination. Specifically, Complainant argued that he was significantly more qualified that Selectee 1 for the DA Position in that he had more extensive experience in the very position that was being hired for and that Selectee 1 was a part-time employee. He also argued that Selectee 1 was the only non-African-American candidate for the position. Complainant also claimed that SO 1 and Management were behind the scenes manipulating the selection process by disparaging Complainant and choosing bogus qualifications for the DA Position.
Further, Complainant argued that he was the only remaining individual within the division and was the only one with experience to fill the DA Position. He asserted that the non-selection was a direct result of his prior EEO activity and his race. Complainant also claimed that SO 1 knew Selectee 1 for years and preselected her for the position in question. Complainant asserted that Interview Panel 1 consisted of individuals outside of the facility in order for the SO 1's preselected candidate to be chosen. Complainant also claimed that SO 1 did not participate in Interview Panel 1 so that she could be shielded from any alleged discrimination. As for SO 2, Complainant argued that he knew Selectee 2 since the mid-1990's. He argued that Selectee 2 was not eligible for selection and that Complainant had more experience.
The Agency requested that the Commission affirm its final order implementing the AJ's decision finding no discrimination.
ANALYSIS AND FINDINGS
We must 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.
On appeal, Complainant argued that he provided "voluminous" evidence and that there were material facts in dispute. However, as the AJ noted, Complainant provided conclusory arguments that Interview Panels 1 and 2 were improperly guided to select Selectees 1 and 2. We find that the assertions alone were not sufficient to create a conflict of evidence. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 Ctr. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the AJ properly determined that the Agency provided legitimate, nondiscriminatory reasons for its selection of Selectees 1 and 2. Further, we determine that the record supports the AJ conclusion that Complainant failed to establish that the Agency's reasons were pretext for discrimination. We note that Complainant merely provided arguments and failed to support these arguments with evidence. Complainant asserted that the Agency pre-selected Selectee 1. Upon review of the record, we find that Complainant fails to provide any evidence that the Agency pre-selected Selectee 1 in a discriminatory manner.1 Further, Complainant failed to demonstrate that SO 1 made the selection based on race, disability and/or prior EEO activity. Accordingly, the Commission finds that Complainant has failed to show that the Agency's actions were motivated by discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination without a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 25, 2014
__________________
Date
1We note that while evidence of pre-selection or favoritism may act to discredit an agency's explanation for its selection, pre-selection does not violate Title VII when it is based on the qualifications of the selectee and not some basis prohibited by Title VII. Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). In the instant matter, Complainant offered no persuasive evidence that pre-selection, if it occurred, was based on discriminatory animus.
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0120122739
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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