0120122344
04-01-2014
Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency.
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120122344
Hearing No. 440201000148X
Agency No. CRC1005017
DECISION
On May 3, 2012, Complainant filed an appeal from the Agency's April 17, 2012, final order concerning her 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 Immigration Program Analyst at the Agency's facility in Chicago, Illinois.
On December 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when she was not selected for one of three Lead Immigration Program Analyst positions pursuant to Vacancy Announcement Nos. MS-CKC-ET-09-105 and DE-CKC-ET-09-053.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After considering the response of both parties regarding the AJ's intention to issue a decision without a hearing, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency on March 13, 2012.
The AJ found the following facts were established during the investigation. Complainant began working for the Agency in 1987 in the area of foreign labor certification. On August 13, 2009, Complainant learned that she had not been selected for either of the three GS-13 Lead Immigration Program Analyst positions for which she had applied and been interviewed for by two Agency officials (both Caucasian), one of which was the selecting official for the positions.
Nine applicants including Complainant were interviewed for the positions. Their interviews were scored using a formal ranking system. All those interviewed for the three positions met the minimum qualifications for the job. Through the interview process, two (Caucasian and Hispanic) of the nine candidates were selected. A third candidate (African American) was selected to fill the remaining vacancy after requesting a voluntary downgrade from his previous position of GS-14 Certifying Officer.
The interview panel testified that the selectees best demonstrated the necessary communication, leadership, and organizational skills needed for the GS-13 lead position. Specifically, the panel members stated that Complainant's interview responses were not relevant or "on point" and demonstrated that Complainant lacked the ability to think quickly on her feet. They also stated that, unlike the selectees, Complainant could not provide examples of any past leadership experience, was hesitant in responding to questions and had to "re-do" an answer. They said Complainant also indicated that she would delegate her work to others despite the fact that the job had no supervisory authority. The interview panel found that the selectees provided responses to interview questions that better demonstrated the leadership and communication skills necessary for the position. The panel concluded that while Complainant was qualified for the position she was not the superior candidate.
Based on this evidence, the AJ concluded that the responsible management officials articulated legitimate, non-discriminatory reasons for the selections made, which Complainant did not prove were pretext masking race discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
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.
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
We assume for the purposes of this analysis, that Complainant has established a prima facie case of discrimination based race (African American). However, we find that the Agency articulated a legitimate, non-discriminatory reason for decision to decline to select Complainant for the positions at issue - basically that, while qualified, the selectees demonstrated their superior qualifications in the interview.
Upon review of the record, we concur with the AJ's conclusion that Complainant failed to establish that the Agency's decision not to select her for the position was actually motivated by discriminatory animus toward her race. However, seniority was not one of the factors considered by the panel. Complainant has not demonstrated any weakness or inconsistency in the Agency's proffered legitimate, non-discriminatory reason for the non-selection. Based on these facts, no reasonable inference of discrimination can be drawn.
CONCLUSION
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.
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 tends 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
April 1, 2014
__________________
Date
2
0120122344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122344