05a20691_r
05-29-2003
Donald C. Hinkson, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Donald C. Hinkson v. Department of the Navy
05A20691
May 29, 2003
.
Donald C. Hinkson,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A20691
Appeal No. 01A04225
Agency No. DON-97-00391-003
Hearing No. 170-98-8191X
DECISION ON REQUEST FOR RECONSIDERATION
Donald C. Hinkson (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Donald C. Hinkson v. Department of the Navy, EEOC Appeal
No. 01A04225 (March 27, 2002).
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the previous decision, the Commission affirmed the agency's
final order, which adopted the summary judgment decision of an EEOC
Administrative Judge (AJ), finding no discrimination on the bases of race
(African American) or sex (male) regarding complainant's non-selection
for a Contract Negotiator position.
In his request for reconsideration, complainant argues, in pertinent part,
that the previous decision improperly reflected that complainant did not
submit any contentions on appeal, when, in fact, complainant filed an
appeal brief. Furthermore, complainant argues that the AJ improperly
issued a summary judgment decision in this case, because he did not
identify the critical �material facts� that were �not in dispute,�
thereby preventing complainant from filing an effective response.
Also, complainant argues that the AJ erred because �material facts�
are in dispute. Specifically, complainant argues that one disputed
material fact is whether the selecting official properly interviewed
the candidates first line supervisors, rather than the candidates
themselves, especially considering that complainant's current first
line supervisor had only supervised him for approximately three months.
Complainant also argues that another material fact in dispute is whether
the selecting official properly used the current performance appraisals
as a rating factor, which disadvantaged complainant because he did not
receive an outstanding rating from his current supervisor. Moreover,
complainant alleges that the AJ incorrectly found that the selecting
official consistently applied the selection criteria, and he failed
to correctly consider that only one black male had been promoted at
complainant's facility in the last fourteen years. Complainant contends
that the AJ improperly weighed the facts, improperly drew inferences in
favor of the agency, and claims that the AJ's findings could have been
discredited at a hearing. Complainant requests a hearing.
In response, the agency argues that none of the material facts are in
dispute, and that the AJ properly rendered a summary judgment decision in
favor of the agency. The agency argues that the documentary evidence of
record demonstrates that complainant was not the best qualified candidate
for the position. The agency asserts that this is the critical �material
fact� and that it can be readily ascertained by reviewing the selecting
official's notes and by making a comparison of the applications submitted
by complainant and those of the three selectees. The agency additionally
argues that on both appeal and in the instant request, complainant
failed to set forth arguments or evidence to show that he was better
qualified for the position than any of the three selectees, noting that
this particular �material fact� is determinative in a non-selection case.
We find that the previous decision incorrectly stated that complainant did
not submit an appeal statement. Nonetheless, after consideration of the
arguments advanced by complainant, we find no error in the determination
rendered in the previous decision.
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.
Complainant presents no evidence to demonstrate that he was more qualified
for the position at issue as compared to the three selectees. Instead,
he argues that because the agency has purportedly failed to promote
black males at an acceptable rate, and his own application scored
poorly in the selection process at issue, his non-selection must have
been discriminatory. However, we note that merely asserting that no
black males were promoted at a certain facility for a certain number of
years, without more, is not sufficient to demonstrate discriminatory
animus or pretext in a particular case. It is well settled that in
a non-selection case, pretext may be demonstrated by showing that
complainant's qualifications are observably superior to those of the
selectee. See Bauer v. Bailor, 647 F. 2d 1037, 1048 (10th Cir.1981);
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). Because complainant fails to present any evidence that his
qualifications for the position at issue were, in fact, better, let alone
�observably superior,� in any respect to those of the selectee, we find
that complainant failed to produce any evidence demonstrating pretext.
Accordingly, after a careful review of the record, with reference to the
above described legal standard, we find that the probative facts of the
case were fully developed by the documentary record, and that there were
no genuine issues of material fact in dispute. Therefore, we conclude
that the AJ's decision to issue a finding of no discrimination without
a hearing was proper.
Furthermore, based on our review of the record, in particular the
affidavit of the selecting official, as verified by his contemporaneously
made notes, we find that the same inquiries were submitted to each
supervisor and that an objective method was used to record their
responses. Furthermore, there is no evidence to suggest that the
selecting official used current performance appraisals as a selection
criteria with the goal of disadvantaging complainant, who unlike the
three selectees, did not have an �outstanding� rating. Although it is
true that a certain degree of subjectivity is involved in evaluating the
applicants' written responses to the ranking factors, absent evidence
of discriminatory animus toward complainant, the Commission will not
second guess the agency's business judgment in these matters. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252,
259 (1981); see also Wrenn v. Gould, 808 F.2d 493, 503 (6th Cir. 1987)
(In order to make a determination of discrimination, one must look at the
motivation of the decision maker as opposed to his business judgment).
Based on the record before us, we find no support for complainant's
claim that the selection criteria were inherently too subjective,
inconsistently applied, or developed for the sole purpose of excluding
the promotion of black males. Instead, we find that the record shows
that the selecting official objectively scored supervisor responses,
performance appraisal ratings, and written applications. Under this
scoring method, although complainant made the best qualified list, he
ranked at the bottom third and was not selected. Complainant presents
no evidence that he is better qualified than the three selectees, nor
does he present any probative evidence to demonstrate pretext.
Based on complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. Additionally, for the
reasons set forth above, based on our discretionary review of the record,
the decision in EEOC Appeal No. 01A04225 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
May 29, 2003
__________________
Date