Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 25, 2015

0120132172 (E.E.O.C. Mar. 25, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120132172

Hearing No. 420-2012-00052X

Agency No. 8G0J11001F131

DECISION
Complainant filed an appeal from the Agency’s final order dated April 16, 2013, finding no
discrimination with regard to her 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND
In her complaint, dated March 4, 2011, Complainant alleged discrimination based on race
(African American) when on December 16, 2010, she was not selected for the position of
Stock Funds Manager, GS-2001-09. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 8,
2013, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS
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

1 The instant complaint is also referred to as Agency No. 8G0J11001 or 81G0J11001.
0120132172

2
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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The record indicates that at the time of the alleged
incident, Complainant was employed as a Supply Systems Analyst, GS-2003-07, 14th Mission
Support Group, 14th Logistics Readiness Division, Operations Compliance Flight, Compliance
and Analysis Section, 14th

Flight Training Wing, Columbus, Mississippi. Complainant applied
for the position of Stock Fund Manager, GS-2001-09, Vacancy Announcement Number Air
Force Personnel Center 411997-115473-8G-MAA. Two Recommending Officers (ROs) for
the position at issue indicated that based on the candidates’ resumes, they ranked the
candidates, including Complainant. The ROs stated that the individual who ranked highest was
not available for several months due to his active duty service commitment; thus, they
recommended the selectee who ranked second. Complainant ranked third. Specifically, the
ROs indicated that the selectee ranked higher than Complainant because she had 12 years of
supply experience as she was a Stock Control Supervisor since April 1998, and that position
required extensive Standard Base Supply System experience, which was the necessary skill for
the position at issue. The ROs stated that Complainant had only two years of supply
experience as she was a Supply System Analyst since April, 2009. The RO noted that in her
resume, Complainant erroneously indicated that she was in her current Supply System Analyst
position since September 1994, when she had only been in that position since April 2009.
Complainant admitted the error. Based on the ROs’ recommendation, the selecting officer
selected the selectee for the position at issue.
We agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reason for not selecting Complainant for the position. Furthermore,
Complainant failed to show that her qualifications for the position were plainly superior to the
selectee’s qualifications. See Wasser v. Department of Labor

, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as she alleged.

0120132172

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CONCLUSION
Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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.

0120132172

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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

Date
March 25, 2015