01a54798
11-15-2005
Donald A. Elfer, Jr., Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Donald A. Elfer, Jr. v. Department of the Army
01A54798
November 15, 2005
.
Donald A. Elfer, Jr.,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A54798
Agency No. ARPOLK04FEB0002
Hearing No. 270-2004-00178X
DECISION
Complainant timely initiated an appeal from the agency's final action
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 and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that from March 1994 to March 2001, complainant was
employed as an Air Traffic Control Specialist, GS-2152-12, at the agency's
facility in Fort Polk, Louisiana. From approximately March 2001 to July
2003, complainant was employed as an Air Traffic Control Specialist at
the agency's facility in Fort Hood, Texas. On July 7, 2003, complainant
was removed from agency employment at Fort Hood based on his inability to
obtain an Air Traffic Controller certification for Radar Approach Control.
On November 17, 2003, the agency and complainant entered into a settlement
agreement in resolution of an appeal to the Merit Systems Protection
Board (MSPB Docket No. DA-0752-03-0512-I-1) and an EEO complaint (Agency
No. ARHOOD03JUN0002). The record reveals that the agreement provided that
the agency would change the removal decision to reflect that complainant
agreed to voluntary change to a lower grade for family reasons; and to
provide complainant priority consideration to the first vacancy at Fort
Hood for the position of Air Traffic Controller, GS-2152-10. Further,
the record reveals that as part of the agreement, complainant agreed to
notify the MSPB that he was withdrawing his MSPB appeal.
During the relevant period, complainant worked as an ATC Assistant at the
agency's facility in Fort Hood, Texas. While working in this capacity,
complainant applied for the position of Air Traffic Control Specialist,
GS-2151-11/12, at the agency's facility in Fort Polk, Louisiana.
Complainant filed the instant formal EEO complaint on March 18, 2004.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the basis of sex (male), age (D.O.B. 1/9/51), and in
reprisal for prior EEO activity when:
on December 5, 2003, he was denied appointment to the position of Air
Traffic Control Specialist, GS-2152-11/12, under Vacancy Announcement
Number X-BL-03-5509-HW because his name was removed from consideration.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 29, 2005, the AJ issued a Notice
of Intent to Issue a Decision Without a Hearing, allowing the parties
to file a written response to the Notice. The record reveals that only
complainant responded to the Notice.<1>
On April 27, 2005, the AJ issue a decision finding no discrimination.
The AJ found that complainant failed to establish a prima facie
case of sex discrimination because there were only male applicants
for two positions of Air Traffic Control Specialist, GS-2152-11/12.
Without addressing whether complainant established a prima facie case
of reprisal discrimination, the AJ found that the agency articulated
legitimate, non-discriminatory reasons for removing complainant's name
from consideration for the position of Air Traffic Control Specialist,
GS-2152-11/12. The AJ concluded that complainant failed to establish
by a preponderance of the evidence that the agency's articulated reasons
were a pretext to mask unlawful discrimination/retaliation.<2>
On May 31, 2005, the agency issued a final action wherein it implemented
the AJ's decision finding no discrimination.
On appeal, complainant contends that the AJ improperly issued a decision
without a hearing because there are material facts at issue. Complainant
further contends that on December 10, 2004, he learned that management
officials at Folk Polk requested that his name be removed from the
certificate of eligibles for the position of Air Traffic Controller,
GS-2152-11, and as a result, he "was not hired and was denied his
veteran's preference by [agency] officials." Complainant contends that
the agency officials "did not verify the accuracy of the information
provided to them by the Fort Polk officials and varied from their duty
to evaluate [complainant's] credentials."
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
employment actions. The record in this case contains the testimony of
complainant's former supervisor (FS), during the fact finding conference.
Therein, FS stated that he was involved in the recruitment process to
fill the subject positions; and in the development and establishment of
the evaluation criteria and candidate evaluation process. FS further
stated that he reviewed and approved the selecting official's choices for
the subject positions. FS stated that because the most critical duty of
the subject position was to work the radar approach control, management
sought candidates that "were currently or recently within the last three
years for the GS11's been rated and certified approach controllers and
had a control tower operator's certificate and that the character of
their employment or their skills had been demonstrated satisfactorily."
Further, FS stated that on November 3, 2003, he submitted a SF 62 Form
("Agency Request to Pass Over a Preference Eligible or Object to an
Eligible") requesting that complainant be removed from the referral
certificate and the subsequent non-selection because complainant had not
�demonstrated competence." Specifically, FS stated that complainant had
not received certification for radar approach control or had not been
certified for the preceding two years. FS acknowledged that complainant
may have had the relevant knowledge for the subject position, but that
complainant did not apply the knowledge during the period that complainant
was in training in Fort Hood, and that complainant did not satisfactorily
complete Fort Hood's training plan. Specifically, FS stated that in
his application, complainant acknowledged that he failed to complete the
training program at Fort Hood. FS stated that he felt that complainant
"had a fair opportunity to demonstrate his abilities at Fort Hood and that
[he lacked] demonstrating proficiency in the skills of approach control
there [and] there was a possibility he wouldn't be successful at Fort
Polk either." FS stated that while he was not aware of complainant's
prior EEO activity.
After a careful review of the record, the Commission finds that 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 present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Finally, we note that complainant, on appeal, raises a new claim
of non-selection. We note that the claim was not previously raised.
It is inappropriate for complainant to raise the new claim for the first
time as part of his July 2005 appeal.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination is therefore 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
November 15, 2005
__________________
Date
1The record does not contain a copy of the AJ's Notice of Intent to Issue
a Decision Without a Hearing or complainant's response to the Notice.
2The AJ specifically addressed the bases of sex and reprisal, and found
that the agency articulated legitimate, non-discriminatory reasons for
its actions. However, the AJ did not provide any analysis regarding
whether complainant established a prima facie case based on age.
The Commission determines that because the agency has articulated
legitimate, non-discriminatory reasons for its actions as discussed more
fully below, we find it unnecessary to address complainant's age claim.