0120053760
02-15-2007
Deidre Eaton, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Deidre Eaton,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120053760
Hearing No. 210-2005-00112X
Agency No. ARROCK03NOV0068
DECISION
On April 26, 2005, complainant filed an appeal from the agency's April
5, 2005, final action 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 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 action.1
Complainant alleged discrimination in violation of Title VII on the bases
of race (African-American) and sex (female) when she was not selected for
the position of Industrial Engineer (IE), GS-0896-13 in April of 2003.
The record indicates that complainant was employed by the agency as an
IE, GS-0896-12 with the agency's Joint Munitions Command, Deputy for
Corporate Management, Ground Systems Industrial Enterprise (GSIE) in Rock
Island, Illinois ("facility"). Complainant applied for the IE, GS-0896-13
position with GSIE and was one (1) of fifteen candidates who were deemed
qualified for the position, and she was placed on a referral list.
A three (3) member selection panel was convened to review the resumes of
the applicants and consisted of the Selecting Official (SO; male), the
facility's Plans Analyst (female) and New Endeavors Group Chief (male).
The selection panel ranked the candidates based on several criteria and
selected complainant and four (4) male applicants to be interviewed.
A second three (3) member panel was convened to conduct interviews.
The applicants were asked the same interview questions and the panel
members discussed their ratings and explained the reasons they ranked
the candidates. The selection panel recommended two (2) applicants,
complainant and a White male (S1) as the best candidates. One of the
selection panel members stated that before the interviews were held, the
SO advised the panel that leadership was very important and leadership
skills were more important that knowledge of "Lean Thinking/Business
Process Re-Engineering." The interview panel members unanimously agreed
that S1 demonstrated superior leadership skills, and that complainant
did not demonstrate leadership skills during the interview process.
The interview panel passed on the names of S1 and complainant as the
strongest candidates for the position, it recommended the selection
of S1. The SO stated he had some reservations about complainant's
performance during a period when she worked under his supervision, and
he contacted two (2) of complainant's past supervisors as well as S1's
past and current supervisors. Based on the comments from complainant's
supervisors, who did not find her to possess superior leadership skills,
the SO selected S1 over complainant.2
Believing she was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided 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. The AJ assigned to the case determined pursuant
to the agency's motion that the complaint did not warrant a hearing and
over the complainant's objections, issued a decision without a hearing on
March 23, 2005. The agency subsequently issued a final action adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
The AJ initially found that assuming, arguendo, that complainant
established a prima facie case of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its selection of S1 over
complainant. As such, the AJ noted that the burden of evidence shifted
to complainant to demonstrate that the agency's articulated reasons were
more likely than not a pretext for discrimination. The AJ found that in
support of her demonstration of pretext, complainant alleged she had more
direct experience with Lean manufacturing than did S1, which the agency
did not deny. AJ's Decision at 5. However, the AJ found that if the
SO (who had never met S1, and stated he was unaware of his race before
selecting him) considered leadership qualities as the most significant
factor on which to judge the applicants, that was his prerogative. Id.
The AJ noted that the SO stated he did not draft the vacancy announcement.
The AJ, also found that the questions asked of all the interviewees were
related to the knowledge, skills and abilities required of the position.
In addition, the AJ found that there were no facts which suggest that
proscribed considerations entered into the decision making process.
The AJ also found that the agency's Human Resource Specialist stated
there was no requirement that a selecting official limit selection
criteria only to duties listed in a job announcement. The AJ also found
that leadership qualities may be considered as a factor in making an
ultimate determination on selection. While complainant alleged that
the SO reviewed the applicants resumes before developing selection
criteria for the selection panel and thus S1 was pre-selected, the
AJ found complainant proffered no evidence to support this allegation.
Further, the AJ found that there was no evidence proffered by complainant
to support her allegation that the SO has a pattern of selecting Caucasian
individuals for GS-13 positions. AJ's Decision at 6.
Finally, the AJ found no discriminatory animus about the SO's comment
that complainant's past supervisors would have had to state she "walked on
water" in order for her to be selected. The AJ noted that had the SO not
contacted complainant's and S1's supervisors, he nevertheless would have
selected S1 for the position. AJ's Decision at 6. The AJ found that the
SO's comment meant that the statements of complainant's supervisors would
have had to be extremely strong, and articulated differences from some of
the performance she demonstrated while she was under his supervision. Id.
As such, the AJ found complainant failed to demonstrate that the agency's
articulated reasons were pretextual in nature. Complainant has made no
arguments in support of her appeal not previously considered by the AJ,
while the agency submitted a statement recommending that the appeal be
denied.
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. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that the
AJ's grant of summary judgment was appropriate, as no genuine dispute of
material fact exists. We find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to proffer evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's race or sex. While the record reflects that complainant
was an excellent employee, the evidence supports the AJ's finding that
S1's demonstrated leadership qualities made him the strongest candidate
for the IE position at issue. The Commission also notes that an employer
has the discretion to choose among equally qualified candidates provided
that the employment decision is not based upon unlawful criteria. Upon a
review of the record, we concur with the AJ's finding that complainant
failed to establish that the agency's articulated reasons for selecting
S1 were more likely than not a pretext for discrimination.
Accordingly, the agency's final action implementing the AJ's decision
finding no discrimination concerning complainant's claim was proper and
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
____2-15-07______________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2 S1's supervisors stated that he was a self-starter who excelled
at briefings for higher command and did outstanding work. One of
complainant's supervisors stated she was a wonderful employee, but there
were assignments she did not seek to become involved in.
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0120053760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120053760