0120070502
08-25-2008
Edwin I. Njoku, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Edwin I. Njoku,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120070502
Agency No. 055348AL
Hearing No. 550-2006-00029X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 26, 2008, final order concerning
her equal employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was assigned as a Health
Physicist, GS-13, for the National Nuclear Security Administration,
at its offices in Oakland, California.1 Complainant claimed that the
agency discriminated against him on the bases of race (African-American)
and national origin (Nigerian) when he was notified that he was not
selected for the position of Supervisory Health Physicist, GS-14,
Livermore Site Office (CA), on July 17, 2004. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On September 12, 2006, the AJ issued a decision without a hearing,
finding that the agency did not discriminate against complainant.
The selecting official (SO) stated that he appointed an advisory panel
to review the four best-qualified candidates, a group that included
complainant, and make a recommendation to him. After its review of
the applications and telephone interviews with all candidates, (with
the exception of complainant, who could not be contacted), the panel
recommended the selectee to the SO. The SO agreed and, after consultation
with his supervisor, chose the selectee. Complainant was informed of the
selection decision and addressed the SO and one of the panel members,
expressing his disbelief that he was not selected and asserting that
he was the more qualified candidate. The SO explained that there were
many highly-qualified candidates, and the panel member stated that the
panel, individually and collectively, ranked the selectee as the best
candidate for the position. The AJ concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, and complainant
did not demonstrate pretext. In particular, the AJ noted that, although
the panel ranked complainant second with comparable technical skills, it
found that the selectee had better communication and interpersonal skills
for the position, skills important to the position.2 In addition, the AJ
held that the agency took responsible and reasonable actions to include
complainant in the application process while he was deployed to Iraq.
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, including those not specifically
addressed, 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.3
Accordingly, the agency's decision 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
__08/25/2008________________
Date
1 In February 2003, agency managers announced a plan to reorganize and
"rightsize" its offices and employee staff, including an intention to
close the Oakland facility. When the position at issue was posted in
January 2004, complainant, although deployed to Iraq, applied for the
position in February-March 2004.
2 The Supreme Court has held that in the absence of evidence of a
discriminatory motivation, an employer generally "has discretion to choose
among equally qualified candidates...." Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259 (1981). Also, the Court recently
addressed the question of comparative qualifications as evidence of
pretext and held that, to demonstrate pretext, the complainant must show
that her/his qualifications were significantly more superior than those
of the selectee. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).
3 Complainant is advised that the EEOC does not provide legal assistance
to complaining parties. In regard to complainant's objections to the
AJ's conduct of the hearing process, we discern no abuse of discretion
by the AJ. Administrative Judges have broad discretion in the conduct
of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) at �� 7-8 to
7-14 (revised November 9, 1999); Bennett v. Department of the Navy, EEOC
Request No. 05980746 (September 19, 2000). Additional information on the
EEO process is available on the Commission's website at: www.eeoc.gov.
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0120070502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070502