0120131478
07-31-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.
Appeal No. 0120131478
Hearing No. 570-2012-00368X
Agency No. HSUSSS007732011
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 27, 2013, final order concerning his equal employment opportunity (EEO) complaint filed on March 11, 2011, 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. Complainant alleged that the Agency discriminated against him on the basis of race (Caucasian) when, on or around December 10, 2010, Complainant was not selected for any of the three positions of Assistant to the Special Agent in Charge (ATSAIC), GS-14, in the Office of Strategic Intelligence and Information, Protective Intelligence and Assessment Division, Vacancy Number 10101.
We must first determine whether it was appropriate for the EEOC Administrative Judge (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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing; the AJ's issuance of a decision without a hearing therefore was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Assuming for the purposes of this decision that Complainant established a prima facie case of discrimination based on race, the AJ concluded that he did not show that the Agency's reasons for the non-selection were pretextual. Specifically, the record reflects that Special Agents (SAs) compete for promotion to positions at the GS-14 level in GS-1811 positions, under the Agency's Merit Promotion Plan (MPP). SAs who choose to participate in the promotion process receive an MPP score, which they use to bid (apply for) announced vacancies. The Personnel Division refers three groups to of eligible candidates to the Advisory Board (the Board) from which selections can be made: (1) the SA Promotion Certificate; (2) the SA Reassignment Certificate; and (3) the Promotion Register. The SA Promotion Certificate lists the best-qualified candidates for promotion, and any candidate on this certificate is equally qualified for consideration for promotion. The SA Reassignment Certificate lists all candidates who are at or above the grade level of the announced position. The Promotion Register consists of the thirty highest ranking candidates or the top 25 percent (whichever is greater). Once bidding is completed, the Personnel Division produces a list of eligibles for each vacancy. The Board recommendation selections to the Office Director, considering many criteria (not just a raw score or an evaluation), including the Assistant Directors' recommendations. The Office Director may concur with the Board's recommendations, or select candidates from one of the lists of best-qualified promotion candidates, or reassignment-eligibles.
The Director explained that they were seeking a well-rounded group of supervisors that had experience in the field, at headquarters, and on protection or in the protective intelligence and technical security areas. The AJ noted that the Agency did not dispute Complainant's contention that he was qualified for the position in question, only that the Agency proffered that nothing in the record challenged the Agency's position that all three selectees were also highly qualified, and may have been better qualified for the position than Complainant. Arguably each of the candidates for the position was equally qualified as each was placed on one of the eligibility lists through the MPP process. The Commission has long held that an 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. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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
__7/31/15________________
Date
2
0120131478
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013