0120122825
02-20-2015
Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120122825
Hearing No. 570-2011-00151X
Agency No. ED2010OIG0060
DECISION
On June 29, 2012, Complainant filed an appeal from the Agency's May 30, 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. 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 an Auditor at the Agency's Office of Inspector General facility in Washington DC.
On June 30, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when:
1. On or about April 16, 2010, Complainant was not selected for the positions of Director of Student Financial Assistance Advisory and Assistant Services, advertised under Vacancy Announcements #01G-HQ-2010-0006 (Supervisor Auditor), and #OIG-HQ-2010-0007 (Supervisory Management and Program Analyst).
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 26, 2012, motion for a decision without a hearing and issued a decision without a hearing on May 22, 2012. Specifically, the AJ found that Agency officials said that they offered the position to the most qualified candidate and that the criteria used to make the selection were the candidates' recent experience with Title IV and Student Financial Assistance. The AJ further found that Complainant failed to establish that the Agency's articulated reasons for its action were a pretext for discrimination. 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.
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.
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 is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 0973). For Complainant to prevail, he must first establish a prima facie 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). In the instant case the Selecting Official (SO, Caucasian) averred that the Selectee (S, Caucasian) was the Acting Director of the position in question and had been in that position for the last nine months prior to being offered the position on a permanent basis. See Report of Investigation (ROI) Affidavit F2, p. 6. SO further averred that S "had experience writing regulations. He was extremely knowledgeable of the programs as he wrote handbooks for colleges that participated in the program," and that:
[S] continued to perform at an outstanding level. He had been rated every year as an outstanding performer. He moved up after a couple years to a GS 14. He not only continued to be an outstanding performer, he had received numerous rewards for IG excellent, including the Presidents Counsel for Integrity and Efficiency Alexander Hamilton Award which is the highest award that can be given to an OIG employee.
Id.
When asked why believed S was the better candidate, SO replied "As I stated for the previous question- it was his knowledge, experience and outstanding effort over the last 10 years in this area. He is one of the most effective employees we have." SO further averred that for the previous eight years Complainant had been working in a different field, explaining that during that time period Complainant had "been in Investigative Services. There were significant changes to the programs under those eight years." Id. These comments were corroborated by the other Agency Official (AO, Caucasian) who participated in the interview process but did not make the final decision. See ROI, Affidavit F3. The AJ found it to be an undisputed finding of fact that S:
was employed on the SFA Advisory and Assistance Team since July 2001. He received Outstanding performance ratings since 2003-2004. When the Director was absent from the office, and for a period of approximately nine months leading up to the selection, [S] acted as Director of the SFA Advisory and Assistance Team.
Complainant has not disputed these facts.
The Agency having articulated a reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the articulated reason was a mere pretext to mask intentional discrimination. See Burdine, 450 U.S. at 253. Following a review of the record, we find that Complainant has not met this burden. We note that the Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See id. at 259; Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant has failed to make this showing. While Complainant's application shows that his credentials were impressive, so were the credentials of S. See ROI, Exhibits F12, F13, & F14. We note, however, that Complainant's credentials were not so plainly superior to those of S that they establish that the Agency's articulated reason for selecting S was a mere pretext.
Complainant argues that even though he had been working in a different field for the previous eight years he had not lost his old skills. However, assuming that is true, considering the fact that S was indisputably an outstanding employee who had been working in the relevant field during the several years Complainant was not, and that he had been working in the position in question in an acting capacity for the previous nine months, the Agency's decision to select such a candidate over Complainant is not so unreasonable a decision as to show that the Agency's articulated reasons for its action must be a pretext to mask intentional discrimination.
On appeal, Complainant refers to an alleged:
'secret' document concerning [Complainant's] 2001 auditing detail in Internal Audit Operations. The Agency did not turn over this document to [Complainant] during discovery, despite his insistence. The AJ compounded this error by finding, without any input from [Complainant] that the document did not influence [SO], the selecting official.
Complainant argues that the case should be remanded for a hearing because of this "secret document." Following a review of the record, we disagree. The Agency on appeal denies the existence of any such "secret document." Complainant has not shown that such a document, even assuming it exists, is in any way material to the issue of whether or not Complainant's nonselection, ten years later, was due to discrimination based on race. While it is true that "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," Liberty Lobby, 477 U.S. at 255, Complainant has not presented any evidence that this alleged "secret document" from 2001 is relevant to the nonselection that occurred in 2010, nor may any inferences be drawn in Complainant's favor, considering the fact that Complainant cannot state what relevance the document has to the nonselection, and considering the fact that Complainant does not dispute that S was an outstanding employee who worked in an acting capacity in the position in question for nine months before being offered the position on a permanent basis.
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.
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
February 20, 2015
__________________
Date
2
01-2012-2825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120122825