01A20822_r
03-26-2003
Donald A. Hamoy, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Donald A. Hamoy v. Department of the Army
01A20822
March 26, 2003
.
Donald A. Hamoy,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20822
Agency No. AFDEFO0006A1020
Hearing No. 370-A1-X2243
DECISION
Complainant filed a formal EEO complaint in which he claimed that the
agency discriminated against him on the bases of his race (Asian Pacific
Islander) and national origin (Philippines) when management gave him
erroneous information regarding a Maintenance Mechanic Supervisory
vacancy, thus preventing him from submitting a timely application for
the position. According to complainant, he was informed by an agency
Personnel Specialist in May 1999 that the Maintenance Mechanic Supervisory
position would not be filled until the pending Commercial Activities study
concluded that the position would continue to receive federal funding.
Complainant stated that the Personnel Specialist told him that until
that time, the agency would only make an assignment to the position in
a temporary detail capacity. In May 2000, complainant inquired about
the position and was informed that although the Commercial Activities
study was still ongoing, the position had been filled on a permanent
basis several months earlier.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request
for a hearing. Without holding a hearing, the AJ issued a decision
finding no discrimination. On November 13, 2001, the agency issued
a final action implementing the AJ's decision. On November 18, 2001,
complainant filed the instant appeal.
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.
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. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990). In this
case, the Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Consequently, we will dispense
with an examination of whether complainant established a prima facie
case with respect to the above cited issues and review below, the reason
articulated by the agency for its actions as well as complainant's effort
to prove pretext.
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for the allegedly erroneous information that
was conveyed to complainant by the Personnel Specialist. According to
the Personnel Specialist, she did not know that the Maintenance Mechanic
Supervisor position would be filled on a permanent basis at the time
that complainant expressed his interest in the position. The Personnel
Specialist stated that she encouraged complainant to monitor the status of
the position. The Personnel Specialist stated that a vacancy announcement
for a permanent filling of the position was not issued until September
1999, four months after complainant consulted with her. A decision was
made to fill the position on a permanent basis despite the fact that
the Commercial Activities study had not been completed.
Complainant claimed that agency officials conspired to provide him with
misinformation in order to prevent him from applying for the Maintenance
Mechanic Supervisor position. We find that complainant has not produced
any persuasive evidence to show that the agency's purported reason for
the information conveyed to him was pretextual or that its action was
motivated by unlawful discrimination. Complainant has not presented any
evidence that demonstrates that the Personnel Specialist knew or should
have known in May 1999 that the position would be filled on a permanent
basis prior to the completion of the Commercial Activities study.
Complainant argued that the Personnel Specialist could have advised him
during their May 1999 conversation to prepare a resume using the Resumix
centralized referral system. We find that this omission on the part of
the Personnel Specialist is not by itself sufficient to establish that
discriminatory motivation was involved.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's
final action finding no discrimination, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and
a preponderance of the record evidence does not establish that race
discrimination or national origin discrimination occurred.
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
March 26, 2003
__________________
Date