0120083043
12-19-2008
Curtis A. Hines, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Curtis A. Hines,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120083043
Hearing No. 430-2007-00202X
Agency No. 06-00181-01614
DECISION
Complainant filed a timely appeal from the agency's final order,
dated June 3, 2008, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
During the relevant time, complainant worked as a Marine Machinery
Mechanic, WG-5334-10, at the agency's Norfolk Naval Shipyard, in
Portsmouth, Virginia. Believing that he was subjected to discrimination
based on his race and in reprisal for his prior EEO activity, complainant
contacted the EEO office. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint. The agency framed the claims as follows:
(1) Complainant's supervisor removed him from a job assignment where he
was working overtime and replaced him with his supervisor's friend;
(2) On June 6, 2006, complainant became aware that he was not selected
for the position of Marine Machinery Mechanic Supervisor I, WS-5334-10,
Code 930R, Certificate Number EA6-WS-5334-10MJ421927-CMP;
(3) On June 27, 2006, complainant was reassigned to the non-nuclear
division, Code 930, due to an incident on June 23, 2006;
(4) On February 10, 2007, complainant was not selected for the
Marine Machine Mechanic Supervisor, WS-5334-10, Certificate Number
EA7-WS-5334-10MJ572061-C-SI-21;
(5) Complainant was not selected for various unidentified temporary
WS-5334-10 promotions in Code 903; and,
(6) On or about May 1, 2007, management changed complainant's job
assignment from nuclear to non-nuclear work.
At the conclusion of the investigation, complainant was provided 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 the complainant's objections, the AJ assigned
to the case granted the agency's December 13, 2007 motion for a decision
without a hearing. On May 6, 2008, the AJ issued a decision finding no
discrimination. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
Regarding claim (1), the AJ first noted that her decision to grant
complainant's Motion to Amend and include the claim was an error.1
The AJ found that complainant waited over a year to include the claim,
and he failed to provide any additional evidence. Complainant did not
specifically identify lost overtime opportunities. Consequently, the
AJ found no evidence of discrimination and reversed her prior decision
to grant the Motion to Amend.
With respect to claim (2), the AJ determined that complainant established
a prima facie case. Further, she found that the agency presented a
legitimate, non-discriminatory reason for not selecting complainant for
the supervisory position: namely, that complainant was not among the
highest scoring group of candidates. The record indicated that there
were 134 eligible candidates for the position, and twelve individuals
were selected. Complainant score was 96 points, while the lowest score
of the top twelve candidates was 121 points. Complainant attempted to
show pretext, by challenging the selections of two particular individuals
(Employee RA and Employee JW). Based upon a review of their resumes, the
AJ concluded that complainant was not observably superior. For example,
while complainant argues he had more time in the refueling area, Employee
RA had more submarine experience and a history of outstanding performance.
In her decision, the AJ proceeded to reference the resumes and relevant
experience of each of the selectees in concluding that complainant's
qualifications were observably superior. Moreover, it was noted that
there were 33 other candidates between complainant and the twelve
individuals that were offered positions. Lastly, with respect to the
basis of race, the AJ noted that three of of the ten candidates that
accepted the positions were African-American.
In claim (3), complainant claimed that he was discriminatorily assigned
to a non-nuclear division. The agency explained, however, that he was
reassigned as a result of an incident that occurred on June 23, 2006.
Complainant committed a procedural violation, wherein he opened a box
of radiological material without the proper radiological controls being
implemented. Consequently, the refueling area had to be shut down for
a day. The manager believed that complainant did not understand the
seriousness of the violation and did not take responsibility for it.
According to the AJ, the record also revealed that three individuals,
without EEO activities, were also reassigned out of the division for
various reasons. A Caucasian employee was also reassigned for workplace
misconduct.
Similarly, in claim (6), the AJ found no evidence of discrimination in
the May 1, 2007 assignment to non-nuclear work.
Complainant claimed that his non-selection in February 2007, claim
(4), was also discriminatory. While the AJ determined that complainant
established a prima facie case of racial discrimination, he failed to
present a case of reprisal. The record did not show that either of the
selecting officials were aware of complainant's protected activity.
Even assuming that a prima facie case was established, the agency
stated that the selectees were better qualified than complainant.
After reviewing the resumes of the individuals cited by complainant, the
AJ found that complainant was not observably superior to the selectees.
Complainant also claimed that he was denied several temporary promotions
due to his race and prior protected activity, claim (5). Although noting
that, even after extensive discovery on the issue, complainant failed
to identify a date for any of the temporary promotions at issue, the
AJ assumed that a prima facie case had been established. The record
showed that when the need for a temporary promotion arises, the Shop
Superintendent, Deputy Superintendent, Nuclear Director, and/or General
Foreman determine the best candidate for the position based on experience,
skills sets and/or training. The AJ concluded that complainant simply
presented general allegations which were unsupported by the record.
Therefore, the AJ found that complainant failed to prove that he was
subjected to unlawful discrimination based on his race or in reprisal
for his prior EEO activity. On June 3, 2008, the agency issued a final
order fully implementing the AJ's finding of no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in granting the agency's
summary judgment motion. Complainant believed that the decision not to
hold a hearing related to the agency's assertion that it would require
a security clearance, a process the AJ wanted to avoid. Further, when
the AJ informed the parties that she was considering issuing a decision
without a hearing, she required additional information. The complainant
challenges the submission of resumes provided by the agency, arguing there
is no evidence as to where they came from or if they were the documents
utilized by the selecting officials. Complainant contends that the AJ
failed to cite to the depositions, instead focusing primarily on the
Report of Investigation, where witnesses were not cross-examined.
Regarding the non-selection at issue in claim (2), complainant argues
that the "AJ erred in finding [Employee JJ and Employee VG] were better
qualified than complainant because complainant never indicated that he
was better qualified than they [were]." According to complainant the
African-American selectees were chosen after his compliant that there
were no African-Americans in upper management .
Complainant disputes that one of the selectees graduated from the
apprenticeship program as indicated. Complainant asserts that as
an apprentice in the same class as the selectee, he recalls that the
selectee was absent from the program due to serious illness and did not
graduate in April 2003. Complainant contends that when he began working
for the Shipyard in 2001, as a full journeyman mechanic, the selectee was
still in the apprenticeship program. Consequently, argues complainant,
his qualifications are observably superior.
With respect to his reassignment, claim (3), complainant states that
he understood the error of his actions. He believes that a dispute of
material fact exists, and therefore a hearing should have been held.
In closing, the complainant argues that the AJ was making credibility
determinations, and therefore it was "highly inappropriate for the AJ
to render a summary judgment [decision]."
In response, the agency argues that "there is simply no evidence to
suggest that the agency discriminated against [complainant], thus his
appeal should be denied." Regarding the nonselection, in claim (2),
the agency reiterates that it presented a legitimate, non-discriminatory
reason for the non-selection. Complainant arguments on appeal, states
the agency, are simply that he believes he should have been selected,
he believes he was more qualified, and he believes he should have been
scored higher, without any supporting evidence. The agency points out
that the AJ reviewed the resumes and qualifications of each and every
selectee and found that their qualifications were observably superior
to those of the complainant. Further, the AJ considered the statement
from the selecting officials, and noted that 33 other candidates who
were not selected still scored higher than complainant.
Addressing the reassignment matters, the agency argues that complainant's
actions on June 23, 2006 justified the agency's decision to assign him
to a different work area. The agency states that complainant has merely
presented his own beliefs without any evidence. He has not shown that
the agency's reasons were pretext.
Regarding the non-selection presented in claim (4), the agency
asserts that complainant again failed to present any evidence showing
that his qualifications were observably superior to those of the
seletees. Complainant fails to specifically address this claim on appeal,
observes the agency. Based on complainant's arguments for claim (2),
asserts the agency, complainant simply contends that he has the necessary
skills and the selectees had less experience.
The agency maintains that it provided legitimate, non-discriminatory
reasons for its actions, and complainant failed to establish pretext.
The record, asserts the agency, does not support complainant's bare
assertions that he suffered discrimination due to his race and prior
EEO activity.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo"). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first 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.
As an initial matter, we find that the AJ properly granted the agency's
motion for summary judgment. The Commission agrees that no genuine
issue of material fact exists in the instant case.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
As noted above, the agency has presented legitimate, non-discriminatory
reasons for its actions. While complainant argues that he has more
experienced than some of the selectees and is qualified for the positions,
we do not find any evidence of pretext. Similarly, with respect to the
reassignment claims, complainant has failed to show any nexus between
the agency's actions and complainant's race or prior EEO activity.
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
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 19, 2008
Date
1 While the incident was the impetus for complainant's initial EEO
Counselor contact on March 1, 2006, complainant did not file a formal
complaint on the matter. Instead, in April 2006, a mediation was
conduct and "a settlement was reached via a written Memorandum of
Understanding." After complainant's EEO complaint was assigned to the
AJ, complainant sought to amend the complaint to include the overtime
(OT) issue.
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0120083043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083043