0120114306
03-19-2013
Erica C. Fox, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Erica C. Fox,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120114306
Hearing No. 430-2010-00296X
Agency No. DON-10-62793-00043
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal1 from the Agency's September 13, 2011 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.
At the time of events giving rise to this complaint, Complainant worked as an Industrial Property Management Specialist, GS-1103-11, at the Agency's Supervisor of Shipbuilding in Newport News, Virginia. Pursuant to a Solicitation of Interest for Management Identification of Candidates, Complainant and two of her co-workers applied for the position of Industrial Property Management Specialist (Plant Clearance Officer), GS-1103-12. According to the position description, the Plant Clearance Officer "has full responsibility for administering an effective program of reutilization and/or disposition of excess and surplus Government-owned assets . . . ." The Selecting Officials (SO1 - Caucasian; SO2 - Caucasian) scored the three candidates' resumes and responses to the knowledge, skills, and abilities of the position on five equally weighted factors. The Selectee (Hispanic) received a cumulative score of 32 points. Complainant received a cumulative score of 31 points.
On November 25, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when, on September 21, 2009, it did not select her for the position of Industrial Property Management Specialist (Plant Clearance Officer), GS-1103-12.
We must first determine whether it was appropriate for the EEOC Administrative Judge (AJ) to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In her decision, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for selecting the Selectee over Complainant; namely, the Selectee's military experience made her a better qualified candidate. Specifically, SO1 averred that the Selectee's military background in the positions of Combat Systems Officer, Quality Assurance Officer, Production Officer, dealing with ship construction and ship repair, gave her the hands-on experience and working knowledge of the components that she would be making disposition on as a Plant Clearance Officer. Fact Finding Conference Transcript (FFC Tr.), at 36-37, 95-97.
Moreover, the AJ found that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for race discrimination. Specifically, the AJ found that the evidence, viewed in the light most favorable to Complainant, did not show that her qualifications were "plainly superior" to the Selectee's. In addition, the AJ found that Complainant provided no other evidence that could create a genuine issue regarding pretext. The AJ addressed several pretext arguments raised in Complainant's opposition to the Agency's motion for a decision without a hearing.
Regarding Complainant's argument that she was more qualified because she had more experience as an Industrial Property Management Specialist than the Selectee, the AJ found that the difference in experience was a small one. The record reflects that Complainant had about 25 months of such experience whereas the Selectee had about 18 months of such experience. Report of Investigation (ROI), at 81, 98.
Regarding Complainant's argument that she was more qualified because the position required DAWIA Level 2 certification and she was closest to obtaining that certification, the AJ found that Complainant received a higher score than the Selectee on the factor related to DAWIA certification but, as all five factors were equally weighted, Complainant's score on that factor was not high enough to give her the highest overall score. The record reflects that, on the factor related to DAWIA certification, Complainant received six points and the Selectee received four points. Id. at 121-22.
Regarding Complainant's argument that SO1's credibility is at issue because he used notes while testifying during the fact finding conference and therefore a hearing is required, the AJ found that there was nothing inherently suspicious about a selecting official using notes to refresh his recollection while testifying months after a selection, especially where the selecting official participates in numerous selections. The record reflects that SO1 testified at the fact finding conference approximately seven months after the selection. FFC Tr., at 4. In addition, the record reflects that SO1 has made many selections. Id. at 38; ROI, at 48.
Although Complainant argued in her opposition that she was better qualified than the Selectee, we find that she has not shown that her qualifications were "plainly superior," so as to establish pretext. We note that the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
After a review of the record in its entirety, the Commission finds that the AJ's decision without a hearing was appropriate, as there is no genuine issue of material fact or issue of credibility. Furthermore, it is the decision of the Commission to AFFIRM the Agency's final order because the preponderance of the evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__3/19/13________________
Date
1 Complainant did not submit a statement or brief in support of the appeal.
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0120114306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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