0120083348
09-24-2008
Earl P. Thompson, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior Agency.
Earl P. Thompson,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior
Agency.
Appeal No. 0120083348
Agency No. MMS070211
Hearing No. 461-2008-00016X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 17, 2008 final order concerning his equal
employment opportunity (EEO) complaint claiming 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant worked as a Civil Engineering Technician, GS-8, Gulf of Mexico
Region of the Mineral Management Service, in New Orleans, Louisiana.
Complainant claimed that the agency discriminated against him on the
bases of race (African-American), sex (male), disability (stress),
age (56), and in reprisal for prior protected activity when he was not
selected for the position of Land Law Examiner, GS-9, Adjudication Unit,
on January 25, 2007, in favor of an African-American female (CO).1
Following an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On May 22, 2008, the AJ issued a decision
without a hearing, finding that the agency did not discriminate against
complainant.
The AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The selecting official (SO), the head of
the Adjudication Unit, stated that he assumed all candidates on the
Certificate were qualified and interviewed each one. He chose CO,
who worked in mineral leasing, for the GS-9 position as she was able to
answer his questions concerning the job's duties. According to the SO,
however, complainant was not able to give responses to his questions
about the duties of the position, because he performed work that was
very different than the position at issue. Complainant contended that
he was more qualified but provided nothing in support of his assertion.
Thus, assuming, arguendo, that complainant established a prima facie
case of discrimination on any of the bases alleged, complainant did not
demonstrate pretext in response to the agency's explanation.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue 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. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the AJ's issuance of a decision without a hearing was appropriate,
and the preponderance of the evidence of record does not establish that
discrimination occurred.2
The agency's final order implementing the AJ's finding of no
discrimination is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__09/24/2008________________
Date
1 The agency filled the position with a selectee at the GS-9 level and
GS-11 level, but the AJ determined that complainant, a GS-8 employee,
was eligible for the position at the GS-9 level only.
2 We assume, without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120083348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036