Dexter E. Young, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 3, 2005
01a42511 (E.E.O.C. Mar. 3, 2005)

01a42511

03-03-2005

Dexter E. Young, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Dexter E. Young v. Department of the Army

01A42511

March 3, 2005

.

Dexter E. Young,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A42511

Agency No. ARHQAMC02NOV0002

Hearing No. 100-2003-08459X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

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 accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final order.

The record reveals that complainant, a General Engineer, DB-0801-03,

at the agency's U. S. Army Aviation and Missile Command, filed a

formal EEO complaint on October 28, 2002, alleging that the agency had

discriminated against him on the bases of race (Caucasian) and sex (male)

when his selection for the position of Supervisory General Engineer

(who would serve as Deputy Director, Applied Technology Initiatives)

was initially disapproved. At the conclusion of the investigation,

complainant received a copy of the investigative report and requested

a hearing before an EEOC Administrative Judge (AJ). The AJ issued a

decision without a hearing, finding no discrimination. The agency's

final order implemented the AJ's decision.

BACKGROUND

The record reveals that the agency published a vacancy for the Supervisory

General Engineer position on June 15, 2000. The selectee would act as a

deputy to complainant's supervisor who was also the selecting official.

A list of forty-two eligible internal and external candidates, including

complainant, were included on the certificate that was referred to the

selecting official. The selecting official stated that, near the time of

the selection, she was absent, and complainant was acting in her absence.

She stated that she asked her administrative officer to have complainant,

in his acting capacity, sign a memorandum stating, in part, that she

would prefer to select from the internal candidate list to fill the

deputy vacancy. Evidence of record reveals that the memorandum requested

that external candidates be excluded and was signed by the complainant on

behalf of his supervisor. Thereafter, the selecting official recommended

complainant and, as required by the agency's affirmative employment

program (AEP), forwarded the recommendation to the agency headquarters

for review. The AEP required concurrence from agency headquarters when

a minority or female was not selected.

In the fact finding conference, the headquarters Human Resource Specialist

(HRS) who processed the selection package stated that she forwarded the

package to the Deputy Chief of Staff for Personnel (DCSP) for action.

The DCSP stated that her staff noticed that complainant had signed the

document which stated that the selecting official did not want to use

any referral list except the internal list. She further stated that

she did not know at that time that complainant had been specifically

instructed by his supervisor to sign the document. She asserted that this

put complainant into an untenable position because it was a conflict of

interest for anyone to eliminate his/her competition which is essentially

what complainant had done. Both the DCSP and the HRS stated that they

thought that complainant's signature on the memorandum constituted a

conflict of interest. The DCSP declined to concur with the selection.

In a memorandum dated January 28, 2002, the DCSP stated that she

was returning the selection package because the tentative selectee

was involved in determining how the recruitment would be conducted.

She further stated that by his signing the memorandum, the complainant

�invalidated the recruitment effort and the spirit of the Army and AMC

affirmative policies.� Thereafter, the HRS returned the package to the

selecting officer for a new recruitment action.

In response, the selecting official stated that she went though her chain

of command by contacting the Commander in an attempt to respond to the

January 28, 2002, memorandum from the Deputy Chief of Staff for Personnel.

At a meeting, the selecting official told him what had occurred and,

after consulting with his human resources staff, the Commander stated

that complainant's actions did not undermine the recruitment effort

and did not invalidate the selection. As a result of this meeting, the

selecting official stated that complainant was permanently appointed to

the deputy position on December 1, 2002.

The AJ concluded that assuming arguendo that complainant established

a prima facie case of race and sex discrimination, complainant failed

to rebut the agency's articulated, nondiscriminatory reason for its

action. The AJ found that the agency's reason for initially rejecting

complainant's selection was that the selection was tainted by a conflict

on interest resulting from complainant's signature on the aforementioned

memorandum. The AJ found that complainant did not proffer any evidence

that it was his race or sex that motivated the agency to invalidate the

selection.

On appeal, complainant contends that, in issuing a decision without a

hearing, the AJ erred by accepting as true the agency's articulated reason

that complainant's signature on the memorandum constituted a conflict

of interest. Complainant states that the legitimacy of the actions of

the DCSP are in dispute because her decision was later overturned, and

agency high ranking officials agreed that her actions were inappropriate.

Specifically, complainant seems to be arguing that because it was later

determined that complainant's signature was insufficient to invalidate

his selection, the DCPS's actions need to be examined more closely to

determine whether unlawful animus was what really motivated her to send

the selection package back.

Complainant also contends that the AJ did not address his claim of

disparate impact based upon the effect of the AEP on his protected

classes. Complainant contends that the AJ accepted the AEP as �valid�

even though the AEP caused his signature on the memorandum to be

scrutinized because of his race and gender. In response, the agency

restates the position it took in its final order and further states that

the complainant questioned the DCPS's credibility but has submitted no

additional evidence to undermine her testimony. The agency requests

that we affirm its final order.

ANALYSIS and FINDINGS

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 in dispute. 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, 322-323

(1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st

Cir. 1988). A fact is "material" if it has the potential to affect

the outcome of a case. Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude entry

of summary judgment. Factual disputes that are irrelevant or unnecessary

will not be counted." Anderson, 477 U.S. at 248. If a case can only be

resolved by weighing conflicting evidence, the issuance of a decision

is not appropriate. In the context of an administrative proceeding,

an AJ may properly issuing a decision without a hearing only upon a

determination that the record has been adequately developed for summary

disposition.

In reviewing the complainant's submission, he does not identify

any material facts in genuine dispute regarding background matters.

For example, the complainant and the agency agree as to which position

he applied, how he was selected, that he signed the memorandum for his

supervisor which excluded external candidates and that the DCPS failed

to concur in his selection which caused the vacancy to be cancelled.

They both concurred that the agency had a AEP which required selections

of non-minority and female candidates to be reviewed by the Deputy

Chief of Staff for Personnel. The parties also agree that the DCPS's

articulated reason for her nonconcurrence was that complainant signed

the memorandum which excluded outside candidates which she felt was a

conflict of interest.

We note that the agency investigation failed to reveal any procedures or

policies that prohibited candidates from signing selection packages in

an acting capacity and there was a disagreement between the headquarters

level and the command level as to whether complaint's conduct constituted

a conflict of interest. However, we do not find that either of these

facts are material, i.e. they do not affect the outcome of the case.

We are not persuaded by the record that there is sufficient evidence

from which a reasonable fact finder could draw an inference of race or

sex discrimination regarding the actions of the DCSP. What appears to

be driving complainant's argument that he was discriminated against was

that had it not been for the AEP, the DCSP would never have reviewed the

selection. While that might be true, complainant simply has presented no

evidence to undermine the fact the DCSP believed she had to invalidate

the selection because of a conflict of interest. Even if the DCSP

was incorrect in her conclusion about the conflict, there is simply

no evidence that unlawful animus motivated her decision. Accordingly,

we conclude that complainant failed to establish a prima facie of race

or sex discrimination and the issuance of a decision without a hearing

was appropriate.

Although complainant has gone to great lengths to challenge the legality

and legitimacy of the AEP, he has not shown how the AEP's requirement

that selections of non-minority and female candidates be reviewed by

headquarters was unlawful, and there is no evidence in this case that the

agency relied on any other elements of the AEP in making its selection.

Moreover, we determine that a reasonable fact-finder could not conclude

that the AEP caused complainant's selection to be initially disapproved -

what caused the disapproval was his signature on the memorandum.

With respect to complaint's allegation that he was subject to disparate

impact based upon the effect of the AEP on his protected classes, in

order to establish a prima facie case of disparate impact, complainant

must show that a challenged practice or policy disproportionately

impacted members of his protected class. Specifically, complainant must:

(1) identify the specific practice or policy challenged; (2) show a

statistical disparity; and (3) show that the disparity is linked to a

challenged policy or practice. Obas v. Dep't of Justice, EEOC Appeal

No. 01A04389 (May 16, 2002)(citing Watson v. Fort Worth Bank and Trust,

487 U.S. 977, 994 (1988); Griggs v. Duke Power Co., 401 U.S. 424 (1971);

see also Horace Lee Mitchell v. Department of the Interior, EEOC Appeal

No. 01990787 (January 10. 2002). The only evidence that complainant has

presented to support his disparate impact claim are his assertions that

his selection package was subjected to scrutiny. Upon review of the

record, the Commission finds that complainant has failed to establish a

prima facie case of disparate impact because he has failed to provide

sufficient statistical support demonstrating a statistical disparity

linked to the agency's policy.

Accordingly, the agency's final order implementing the AJ's decision

was proper and is AFFIRMED for the reasons set forth herein.

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:

March 3, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations