Deidre Eaton, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 15, 2007
0120053760 (E.E.O.C. Feb. 15, 2007)

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