01A04793
03-27-2001
Eileen J. Dvorin, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Eileen J. Dvorin v. Department of the Air Force
01A04793
March 27, 2001
.
Eileen J. Dvorin,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A04793
Agency No. LA0J93094
Hearing No. 360-98-8639X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the
complainant's appeal from the agency's final order in the above-entitled
matter. Complainant alleges she was discriminated against on the basis
of race (Anglo), national origin (Hispanic), sex (female), age (42)
and reprisal when she was not referred for promotion to a GS-1701-11
position on May 17, 1993, and when she was verbally detailed to the
position of GS-1701-11 on May 18, 1993, even though she had not been
referred for promotion to the position. For the following reasons, it
is the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final order, 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 discrimination occurred.
BACKGROUND
The record reveals that complainant, a GS-9 Training Instructor (language)
at Lackland Air Force Base, Texas, filed formal EEO complaints alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination, which the agency adopted in its final order.
Complainant's appeal consists of two consolidated complaints. Complainant
maintains that she was not referred for promotion to a GS-11 position and
that she was verbally detailed to the position, even though she had not
been referred for promotion to the position. The record reveals that in
1991, the agency determined that it would upgrade and professionalize its
language training program. The agency conducted a classification study
of the positions of its Training Instructors which included revising job
duties and requiring a college degree. The agency then chose to fill
the positions by merit promotion competitive procedures. To facilitate
this process, the Civilian Personnel Office issued a computer generated
Promotion Evaluation Pattern, based on a matrix of factors relevant
to the new positions. Those factors included skill codes, education,
experience and points for performance appraisals. The cutoff number
for certification was 34 on the list. Complainant was number 71 on the
list and therefore was not referred. With respect to complainant's
second issue, that she was verbally detailed to the GS-11 position,
the record reveals that all employees remained in their positions
for approximately fifteen days until the administrative selections
were completed. Once the process was completed, employees were either
promoted to the GS-11 or converted to the professional GS-9.
The AJ found that complainant had established a prima facie case of
discrimination as it related to race, national origin, sex and age
as she was a member of the protected groups and she was not referred
for promotion. However, with respect to reprisal, the AJ found that
complainant had not established a prima facie case of retaliation because
the passage of five years between her most protected activity and the
adverse action did not give rise to an inference of retaliation.
The AJ then found that the agency had articulated a legitimate,
nondiscriminatory reason for its actions, namely that only those employees
with a score of 34 or less were referred for promotion and complainant's
score was 71. The AJ also found that the evidence showed that the
agency was undergoing a reorganization and there was no evidence to
indicate that complainant was treated differently or singled out based
on unlawful motivation. The AJ found that complainant failed to show
that the agency's reason was pretextual and that the real motive for
its action was discriminatory.
On appeal, complainant argues that summary judgment was inappropriate
since there was a genuine issue as to whether complainant was treated
differently than GS-7 and GS-8 employees who received promotions
non-competitively. The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In determining whether to
grant summary judgment, the trier of fact's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Id. at 248-49. The courts have been clear that summary judgment is not
to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766,
768 (1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). The hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
110, November 9, 1999, 6-1; see also 29 C.F.R. �� 1614.109(d) and (e).
"Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims."
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998).
The Commission finds that no genuine issue of material fact exists, in
that there is no dispute that complainant received a score of 71 and,
thus, did not meet the cutoff score of 34 or below under the computer
generated Promotion Evaluation Pattern. Further, the fact that GS-7 and
GS-8 employees received promotions non-competitively is not material to
the outcome of this case.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decison, the Commission AFFIRMS the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 27, 2001
__________________
Date